The WTO Dispute Settlement Understanding: An Unlikely Weapon in the Fight against AIDS

Article excerpt

I. INTRODUCTION

One of the most controversial aspects of the World Trade Organization (WTO) is its trade policy governing pharmaceutical products that treat AIDS and other diseases.1 Critics contend that the WTO unreasonably restricts the trade of pharmaceuticals in order to protect the profit margin of western drug producers at the expense of infected populations in developing countries.2 Supporters of the WTO's trade policy argue that protecting the intellectual property (IP) rights of pharmaceutical products is essential to providing an incentive for further drug research and development.3

This Note discusses how a narrowly tailored pharmaceutical product licensing program that is aimed at addressing the AIDS crisis in developing countries would be consistent with the WTO's Agreement on Trade-Related Aspects of Intellectual Property Rights (TRIPS Agreement), which governs IP rights within the WTO.4 This Note analyzes a recent WTO Panel decision in Canada-Patent Protection of Pharmaceutical Products (Canada),5 to discuss how a public health drug licensing program could fall within the exception to full patent protection contained in Article 30 of the TRIPS Agreement.6 Additionally, this Note argues that developing nations should use the WTO Dispute Settlement Understanding (DSU) to establish a uniform approach to drug licensing for public health purposes.7

Part II of this Note discusses how international trade affects the spread of AIDS in developing countries. Part II also discusses how the WTO functions, its IP regime, special provisions for developing countries and its dispute resolution mechanism. Part III analyzes the public health implications of the protection of IP rights within the WTO. This section discusses the impact of the TRIPS Agreement on the ability of developing countries to fight the AIDS crisis, focusing on the cases of Thailand, South Africa and India. Part IV looks at how the recent WTO Panel decision in Canada suggests that a program granting drug licenses for AIDS drugs could qualify as an exception under Article 30 of the TRIPS Agreement.

This Note focuses on the impact of trade policy on the AIDS crisis because AIDS is a deadly disease that is near crisis stage in developing countries and because it is treatable with the use of pharmaceutical products that are governed by the WTO. This Note concludes that countries should take advantage of the WTO's dispute resolution mechanism to establish a uniform approach to the AIDS crisis in the developing world.

II BACKGROUND

A. BLURRING BORDERS: THE AIDS CRISIS AND INTERNATIONAL TRADE

AIDS is the perfect example of a largely region-specific disease that is of global concern. While AIDS disproportionately affects the developing world, with increased globalization of trade and cultures, experts have acknowledged that AIDS is a real threat to developed nations as Well.8 David J. Rothman, a professor of Social Medicine at the Columbia College of Physicians and Surgeons, noted that AIDS "is the first modem disease to strike the developed and developing world simultaneously and to give both a large stake in finding a cure."9 With the increased globalization of world markets, public health concerns are no longer isolated to one community, country or region.

International law has recognized that trade increases exposure to disease. Thus, it provides rules that allow domestic governments to protect their populations from trade-related disease.10 The WTO's Sanitary and Phytosanitary Agreement (SPS Agreement) allows trading members to abrogate trade obligations unilaterally in order to protect public health.11 The SPS Agreement, which was originally part of the 1947 General Agreement on Tariffs and Trade (GATT), allows WTO members to adopt any sanitary or phytosanitary measure "necessary for the protection of human, animal or plant life or health," provided the measures are not inconsistent with other WTO rules. …

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