The Philippines Understanding of Certain Key ‘Shared
Understandings’ in the Chairman’s Statement, and
Interpretation of Certain Provisions of the Decision
Implementing Paragraph 6 of the Doha Declaration on
TRIPS and Public Health

We would like to state our understanding and
interpretation of the Chairman’s statement and the
Decision Implementing Paragraph 6 of the Doha
Declaration on the TRIPS Agreement and Public Health.

In the first place, while the Chairman’s statement
“represents several key shared understandings of
Members” it certainly does not represent all the
understandings shared by the membership.

For one, it does not reflect the shared understanding
of the Members that the undertaking assumed by
eligible importing countries in the Decision to take
reasonable measures within their means to prevent
trade diversion of products imported under the system
is strictly on the “best endeavour basis”. This
understanding has never been refuted by the membership
in the various plenary sessions as well as in the
numerous small-group negotiations we’ve had on this
issue. It is solely with this understanding that we
are agreeing to the Chairman’s statement and the
attached Decision. Otherwise, without this shared
understanding, our capital would maintain its
reservations against the adoption of the statement and
the Decision.

In respect to the usage of the system, the
understanding that the system should not be used as an
‘instrument to pursue industrial or commercial policy
objectives’ is understood by the Philippines as not
precluding the use of the system for purposes of
protecting public health, even if industrial or
commercial policy objectives are involved. A national
health programme designed to provide affordable
medicines for all, particularly the marginalized
sectors of the population, and thus having the
objective of lowering or at least offering lower
prices for a broad range of medicines, does not make
such health programme and the use of the system an
instrument to pursue industrial or commercial policy
objectives. Hence, we interpret the understanding such
that the system will not be used primarily as an
instrument to pursue industrial or commercial policy
objectives.

Indeed, the issuance of a compulsory license for
purposes of addressing a public health problem has a
public interest component that is not necessarily
exclusive of industrial or commercial policy
objectives. The issuance of a compulsory license has a
socio-economic element as well in that it seeks to
offset the pernicious effects of monopoly rights
granted to a patent holder. In the sense that the
concept of compulsory license is intended to curtail
monopolistic or anti-competitive behaviour on the part
of a patent holder, by definition, the system for
compulsory license may be said to have an inherent
industrial policy objective.

With respect to the element of safeguards against
trade diversion being additionally required of
exporting countries under the system, the obligation
to establish these safeguards through special
packaging and/ or colouring or shaping on the
exporting countries’ side, if it does increase their
manufacturers’ costs, will not become operative per
the terms of the Decision and in any case can and will
not be passed on to importing Member in deed.

We note that the obligation referred to in the
statement to provide information on how a Member made
the self-determination establishing that it has
insufficient or no manufacturing capacities in the
pharmaceutical sector appears to impose a new
additional burden that is not on the Decision.
Nonetheless, the only reason we somehow share this
understanding is on the basis that neither the TRIPS
Council nor any Member, can reject a Member’s
notifications indicating its intent to use the system
and providing information on its determination of
manufacturing capacity. The sole prerogative for
establishing insufficient manufacturing capacity lies
with the notifying Member. How the conclusion that
there is insufficient capacity is arrived at is
strictly up to the Member concerned. A Member can
therefore provide as much or as little information as
it deems relevant for purposes of this so-called
understanding referred to in the statement, without
needing to provide more even if requested by another
Member.