In November 2001 the World Trade Organization’s ministerial conference in Doha adopted a Declaration on the WTO Agreement on Trade-Related Aspects of Intellectual Property Rights (TRIPS) and Public Health. The process that led to this declaration is one of the most interesting episodes in recent international economic negotiations. A coalition lacking obvious power achieved significant, unexpected gains despite careful opposition from powerful transnational corporate firms and their home governments. This paper seeks both to explain this puzzling outcome and to consider whether it suggests any generalizations that are likely to be useful in other cases as well. Like all negotiation outcomes, this one has two dimensions: whether agreement was reached and the agreement’s terms. Given the chasm between the two camps’ perspectives, this agreement itself is surprising. Given the great power disparities, the gains of the weak are also surprising. These gains are defined relative to the status quo prior to the 2001 talks. The 1994 TRIPS agreement established obligations of WTO member states to comply with certain international rules protecting the rights of owners of patents and copyrights. Many national laws allow the government to violate patent rights under some conditions. Thus TRIPS too permitted countries to seize patents and issue compulsory licenses (for example authorizing a domestic firm to produce and sell generic equivalents of a brand name drug without permission from the foreign inventor) under "a national emergency or other circumstances of extreme urgency" and for certain other uses. Patent holders must be compensated and such licenses were subject to a number of conditions. Nevertheless, when Brazil, Thailand, and South Africa, facing the catastrophic HIV/AIDS pandemic, sought to avail themselves of these flexibilities, the United States and its global pharmaceutical firms brought intense coercive pressure to bear against their measures. Washington cited their obligations under the TRIPS agreement and implicitly threatened penalties against their trade. Although these complaints were eventually withdrawn, this pressure had a chilling effect on others who might contemplate using the exceptions. In campaigning for the Doha Declaration a large coalition of developing countries sought explicit assurance that they would not be subject to WTO penalties under TRIPS for addressing health crises. Some of them probably also hoped to weaken the unpopular TRIPS agreement more generally. This bargaining coalition used what we call the mixed distributive strategy (defined in the introductory chapter). The US, Switzerland, and their pharmaceutical firms defended against this initiative with a mixed distributive strategy of their own. They sought to ensure the narrowest possible interpretations of these flexibilities, lest developed country markets become flooded with cheaper generic versions of lucrative brand-name drugs, and to increase the level of property protection where possible. The final 2001 Declaration was much closer to the developing countries’ initial position and, according to most observers, moved the WTO status quo significantly toward their objectives (Abbott, 2002; Charnovitz, 2002; Garcia-Castrillon, 2002; ’t Hoen, 2002; Love, 2001; but see Gillespie-White, 2001, and Elouardighi, 2001)
