Abstract:
Tobacco is one of the leading preventable causes of death in many countries around
the globe. It is recorded that 7 million people are killed annually by the consumption
of tobacco through the study conducted by World Health Organization (WHO).
Responding to this issue, WHO through the Framework Convention on Tobacco
Control (FCTC), has taken numerous steps to reduce the number of death caused by
tobacco consumption, one of which is the introduction the concept of plain packaging
for tobacco products. The plain packaging policy has been adopted by Australia
through the Tobacco Plain Packaging Act 2011. Coming into force on first of
December 2012, this Act is believed by Australian Government to be the most
effective way in reducing the consumption on Tobacco product. However another
problem arouse as Indonesia and two other tobacco producer countries are protesting
Australia for the implementation of the Plain Packaging as it is believed to be
violating the Intellectual Property Rights Law as well as Technical Barriers to Trade
Law. The case was then brought to the World Trade Organization court for seeking
the dispute settlement. This study analyzes the crosscutting issues between Australian
Government’s action to protect the citizens from the harm of tobacco products and
Indonesia’s objection on the action on behalf of Intellectual Property Rights
protection. This study will also provide the analysis on how the Plain Packaging Act
enforced by the Australian Government has violated the IPR protection based on the
provision in the Trade Related Intellectual Property Agreement and WTO basic
principles as well as analyzing the role of WTO in the dispute. At the end of the
study, the writer would like to conclude that the Plain Packaging Act 2011, imposed
by Australian Government has vividly violated several articles of TRIPS Agreement
and as the institution that hold the responsibility to oversee the case, the WTO DSB
has provided the consultation for both disputing parties which did not reach a mutual
solution which then lead to panel establishment in the DSB. Up until 2017, the case
is still in the panel stage to hear the decision and report from panel which then be
used by WTO DSB in making its final saying.
