[Ip-health] UN Asked to Investigate US Trade Policies on AIDS & Access to Medicines

Riaz Tayob riaz.tayob at gmail.com
Tue Jul 20 23:43:36 PDT 2010

This is a fantastic initiative that goes to the heart of the political
economy of health and the poor use of LEGAL flexibilities under the WTO's
TRIPs regime of compulsory licences (apparently some countries are more
equal than others - the US is a frequent user of CLs - check out the
excellent resource on this put out by KEI formerly CPTech).

It is actually fantastic that American groups are taking the lead on this
issue - paticularly as many countries have been whipped into shape with this
or the threat of a Special 301 listing...

This is issue of the Special 301 has been covered excellently by Raghavan at

The relevant excerpt:

Until very recently, trade diplomats in Geneva and in capitals continued to
hold the view that the WTO and the DSU have prevented US unilateralism -
even though the US administration officials (the US Trade Representative
(USTR)), in testimony in 1994 to Congress and letters to Congressional
leaders in the House and Senate and in other statements leading to the
enactment by Congress of trade legislation to give effect to the Marrakesh
Agreement Establishing the WTO, had said the US would retain its "S.301"
family of laws and asserted the US' right to use unilateral sanctions and

(The "S.301" family of laws (S.301, "Special 301" and "Super 301") refers to
Sections 301-310 of the US Trade Act of 1974, as amended and expanded by the
US Trade and Competitiveness Act of 1988. These enable the initiation of a
complaint by an individual or enterprise, or self-initiation by the USTR,
that the rights of the US under any bilateral, plurilateral or multilateral
trade agreement are being violated. "Special 301" provisions relate to
purported violations of intellectual property rights, and "Super 301"
provisions to a general catch-all of "unfair trade practices." The
procedures and powers provide for unilateral determination of such
violations, asking the trading partner concerned to negotiate and remove the
restrictions or face penalties in the form of trade sanctions.)

At the time of the implementation process of the WTO Agreement in the US,
many developing-country officials had suggested in private conversations
that the public pro nouncements of the US officials were aimed at Congress,
and did not and could not change the WTO rules. But few make such bold
assertions now and many, at formal and informal meetings, are raising these

In January 1999, the EC raised a dispute on Sections 301-310 of the US Trade
Act. The panel has handed down a ruling that the US law may be a violation,
but that WTO Members and the trading community could be satisfied with the
US administration's "Statement of Administrative Action" (SAA) to Congress
and a Congressional approval of this as part of the US Uruguay Round
Agreements Act 1994 (the US implementation law to give effect to the Uruguay
Round agreements), and the assurances and statements made by the US before
the panel, as assuring trade security. This is a ruling so blatantly based
on politics rather than a legal interpretation of rules that it strengthens
the view of critics that the WTO, behind its outward veneer of being a
"rules-based organization" with a credible dispute settlement system
upholding the rights of the weak as much as those of the strong, is
basically a power-based institution, in terms of not only its negotiated
agreements but also their administration.7

Nearly six years after Marrakesh, and in the sixth year of the WTO, in the
light of the workings of the DSU, the picture is, however, at best a very
mixed one -with some advantages but far more emerging signs of disadvantages
of the DSU and the WTO for the developing world.


4.3.  But the WTO system has now swung to the other extreme by bringing to
bear an extremely legalistic (and, in the latest US S.301 case, a
"political") approach to trade dispute matters that fall in the overall
sphere of socio-politico-economy.

4.3.A.  The panel ruling in the US S.301 case has other disquieting
features. A panel is expected to give a finding as to whether the actions or
omissions under scrutiny  are inconsistent (or not) with an obligation under
the particular agreement. In all the rulings in disputes up till then, the
panels had given a clear finding Ð though sometimes there could be
disagreement with their views.

 But in this case, the panel has fudged the issue of whether or not
S.301-310 of the US Trade Act of 1974, as amended (19 U.S.C paragraphs
2411-2420), is in compliance. Instead of giving a finding on the basis of
the law, the panel has brought in extraneous facts about the US
administration's expression of intent on how it would administer the
provisions, and the US statements to the same effect before the panel.

 In the dispute raised by the US against India over the latter's TRIPS
obligations (to provide a mailbox mechanism to receive patent applications),
the panel and the Appellate Body ruled out the expressed intention of the
Indian government to implement the transition provisions through
administrative orders. Both the panel and the Appellate Body insisted that
only a provision of law could be considered adequate. What was given
prominence, and on the basis of which the ruling went against India, was the
existence or absence of a law. The firm intention of the government to
implement its obligations through administrative actions was given no

 But in the S.301 case against the US, the intentions of the administration
expressed to and accepted by Congress (but not through law) and the US
assurances to the panel have been given weight, and a conclusion drawn that
other WTO Members could get "trade security" from this!

Riaz Tayob
SEATINI - South Africa Chapter
riaz.tayob at gmail.com

On 20 July 2010 17:23, Matthew Kavanagh <matthew at healthgap.org> wrote:

> For Immediate Release
> Health Gap (Global Access Project)
> AIDS Activists Launch United Nations Complaint
> on Impact of Obama Administration Trade Policies on Access to Medicines
> Bush-era Policies Haven’t Changed Despite Obama Pledges, Say Activists
> www.healthgap.org/UNComplaint
> 20 July 2010—At the International AIDS Conference in Vienna, Austria today
> AIDS activists from the U.S., Africa, Asia, and Latin America filed a
> complaint against the United States with the United Nations Special
> Rapporteur on the Right to Health.  The complaint argues that the United
> States, working side by side with multinational pharmaceutical companies, is
> using its trade policies to coerce countries to adopt intellectual property
> policies that increase the costs of medicines and violate the human rights
> of their citizens. These policies directly contradict the promises President
> Obama made while he was a candidate, when he committed to 'break the
> stranglehold that a few big drug and insurance companies have on these
> life-saving drugs' and pledged support for 'the rights of sovereign nations
> to access quality-assured, low-cost generic medication to meet their
> pressing public health needs.'
> Specifically, the complaint alleges that the U.S. threatens countries with
> trade sanctions for making use of legal, WTO-compliantmeasures that bring
> down the cost of AIDS drugs and other essential medicines. The U.S.
> government does so by listing these countries on “watch lists” in a process
> known as “Special 301,” which threatens sanctions against foreign countries
> for their intellectual property laws. In 2010 the U.S. put countries
> including Thailand, India, and Brazil—key manufacturers of AIDS drugs for
> African and other developing nations—on these lists for failing to adopt
> intellectual property laws that would undermine people’s health in order to
> maximize profits for big pharmaceutical companies.
> “President Obama promised to support the rights of countries to make
> low-cost AIDS medicines available to their people, but instead his trade
> representative is threatening countries who are doing just that,” said
> Matthew Kavanagh, Director of US Advocacy at Health GAP (Global Access
> Project), a US-based AIDS and human rights group. A range of health experts
> testified at a recent USTR hearing on Special 301. However, the Special 301
> Report released by the White House in 2010 virtually ignored this expert
> guidance. “President Obama is continuing policies that are holdovers from
> Bush—putting drug company profits over peoples lives,” said Kavanagh.
> “The complaint filed today demonstrates that the continuation of Special
> 301 attacks on affordable medicine policies violate international human
> rights obligations in addition to the Obama administration's own policies,"
> said Sean Flynn, a Professor of Law and American University and the
> Associate Director of the Program on Information Justice and Intellectual
> Property.
> “Due to compulsory licenses, a great number of Thai patients now have
> access to essential medicines for free through the national health insurance
> system and have regained their quality of life.,” said Supatra Nakapew,
> Foundation for AIDS Rights in Thailand. “Through the complaint submitted to
> the Special Rapporteur for the Right to Health, we urge the U.S. government
> to respect human rights and stop pressuring Thailand and other developing
> countries. Moreover, the U.S. government should encourage developing
> countries to actively promote the use of TRIPS flexibility measures to
> increase access to anti-retroviral and other essential medicines.”
> Over a dozen groups including Health GAP (Global Access Project), the
> International Treatment Preparedness Coalition, the Deli Network of People
> Living with HIV/AIDS, the Thai NGOs Coalition on AIDS and Thai AIDS
> Treatment Action Group (and several other Thai groups) and the Agua Buena
> Human Rights Association of Costa Rica submitted the complaint with legal
> counsel from Sean Flynn of American University’s Program on Information
> Justice and Intellectual Property. The full complaint is online
> atwww.healthgap.org/UNComplaint.
> Contact: Jennifer Flynn, Health GAP, +1 917.517.5202, jflynn at healthgap.org
> --
> Matthew Kavanagh
> Health GAP (Global Access Project)
> tel +1 202 355-6343 // mob +1 202 486-2488
> matthew at healthgap.org
>  www.healthgap.org
> --
> Matthew Kavanagh
> Health GAP (Global Access Project)
> tel +1 202 355-6343 // mob +1 202 486-2488
> matthew at healthgap.org
>  www.healthgap.org
> _______________________________________________
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