[Ip-health] Global Commission on HIV and the Law releases its report on "Risks, Rights and Health"

Thirukumaran Balasubramaniam thiru at keionline.org
Tue Jul 10 03:05:12 PDT 2012


The full report is available here: http://www.hivlawcommission.org/resources/report/FinalReport-Risks,Rights&Health-EN.pdf 

The Global Commission on HIV and the Law was launched in June 2010 by UNDP on behalf of the UNAIDS family to provide global leadership on HIV-related legal and human rights issues by analysing what is known about the interactions between the legal environments, human rights and HIV; fostering evidence-informed public dialogue on the need for rights-based law and policy in the context of HIV; and identifying clear and actionable recommendations with a concrete plan for follow-up.  (www.hivlawcommission.org) 

The members of the Commission are: former President of Brazil, Fernando Henrique Cardoso (Brazil, Commission Chair), Justice Edwin Cameron (South Africa), Ms. Ana Helena Chacón-Echeverría (Costa Rica), Mr. Charles Chauvel (New Zealand), Dr. Shereen El Feki (Egypt, Commission Vice-Chair), Ms. Bience Gawanas (Namibia), Dame Carol Kidu (Papua New Guinea), the Honourable Michael Kirby (Australia), the Honourable Barbara Lee (United States), Mr. Stephen Lewis (Canada), His Excellency Mr. Festus Mogae (Botswana), Mr. JVR Prasada Rao (India), Professor Sylvia Tamale (Uganda), Mr. Jon Ungphakorn (Thailand) and Professor Miriam Were (Kenya).

Chapter 6 is entitled "Medicines for Whom?" 

The recommendations from Chapter 6 and section on the TPPA are extracted below: 



6.1. The UN Secretary General must convene a neutral, high-level body to review and assess proposals and recommend a new intellectual property regime for pharmaceutical products. Such a regime should be consistent with international human rights law and public health requirements, while safeguarding the justifiable rights of inventors. Such a body should include representation from the High Commissioner on Human Rights, WHO, WTO, UNDP, UNAIDS and WIPO,as well as the Special Rapporteur on the Right to Health, key technical agencies and experts, and private sector and civil society representatives, including people living with HIV. This re-evaluation, based on human rights, should take into account and build on efforts underway at WHO, such as its Global Strategy and Plan of Action on Public Health, Innovation, and Intellectual Property and the work of its Consultative Expert Working Group. Pending this review, the WTO must suspend TRIPS as it relates to essential pharmaceutical products for low- and middle-income countries.

6.2 High-income countries, including donors such as the United States, European Union, the European Free Trade Association countries (Iceland, Liechtenstein, Norway and Switzerland) and Japan must immediately stop pressuring low- and middle-income countries to adopt or implement TRIPS-plus measures in trade agreements that impede access to life-saving treatment. 

6.2.1 All countries must immediately adopt and observe a global moratorium on the inclusion of any intellectual property provisions in any international treaty that would limit the ability of countries to retain policy options to reduce the cost of HIV-related treatment. Agreements such as the Anti-Counterfeiting Trade Agreement (ACTA) must be reformed; if ACTA is not reformed to exclude such intellectual property provisions, countries should not sign it. All countries must cease unilateral practices to this same, access-limiting end. 

6.2.2 High-income countries must stop seeking to impose more stringent, TRIPS-plus intellectual property obligations on developing country governments. High-income countries must also desist from retaliating against countries that resist adopting such TRIPS-plus measures so that they may achieve better access to treatment. 

6.3 While the Commission recommends that WTO Members must urgently suspend TRIPS as it relates to essential pharmaceutical products for low and middle income countries, we recognise that such change will not happen  overnight. In the interim, even though individual countries may find it difficult to act in the face of political pressure, they should, to the extent possible, incorporate and use TRIPS flexibilities, consistent with safeguards in their own national laws. 

6.3.1 Low- and middle-income countries must not be subject to political and legal pressure aimed at preventing them from using TRIPS flexibilities to ensure that infants, children and adolescents living with HIV have equal access to HIV diagnosis and age-appropriate treatment as adults. 

6.3.2 It is critical that both countries with significant manufacturing capacity and those reliant on the importation of pharmaceutical products retain the policy space to use TRIPS flexibilities as broadly and simply as they can. Low- and middle-income countries must facilitate collaboration and sharing of technical expertise in pursuing the full use of TRIPS exceptions (for instance, by issuing compulsory licences for ARVs and medicines for co-infections such as hepatitis C). Both importer and exporter countries must adopt straightforward, easy-to-use domestic provisions to facilitate the use of TRIPS flexibilities. 

6.3.3 Developing countries should desist from adopting TRIPS-plus provisions including anti-counterfeiting legislation that inaccurately conflates the problem of counterfeit or substandard medicines with generics and thus impedes access to affordable HIV-related treatment. 

6.3.4 Countries must proactively use other areas of law and policy such as competition law, price control policy and procurement law which can help increase access to pharmaceutical products. 

6.4. The WTO Members must indefinitely extend the exemption for LDCs from the application of TRIPS provisions in the case of pharmaceutical products. The UN and its member states must mobilise adequate resources to support LDCs to retain this policy latitude. 

6.5. The August 30, 2003 Decision of the WTO General Council has not proved to be a viable solution for countries with insufficient pharmaceutical manufacturing capacity. It is essential that the system established by that decision be revised or supplemented with a new mechanism, to allow the easier import of pharmaceutical products produced under compulsory licence. WTO Members should desist from ratifying the adoption of the August 30, 2003 Decision as a new Article 31 bis of the TRIPS Agreement, and they must pursue eff orts to reform or replace the system. 

6.6. TRIPS has failed to encourage and reward the kind of innovation that makes more effective pharmaceutical products available to the poor, including for neglected diseases. Countries must therefore develop, agree and invest in new systems that genuinely serve this purpose, prioritising the most promising approaches including a new pharmaceutical R&D treaty and the promotion of open source discovery. 



Free trade agreements

Free trade agreements (FTAs) and economic partnership agreements (EPAs) containing TRIPS plus standards also threaten access to medicines. A case in point is the United States–promoted Transpacific Partnership Agreement (TPPA).

Among other terms friendly to the United States pharmaceutical industry, the proposed patenting standards would allow patenting of new forms, new uses and new formulation of existing medicine; extend patent terms; and restrict the use of price control mechanisms. In another example, the proposed EU-India FTA would shrink the latitude of countries to adopt policies promoting the production and distribution of generic medicines. The United States trade stance, which threatens access to aff ordable medicines for millions of the world’s poorest people, is egregious given President Barack Obama’s professed commitments to increased economic equality and access to health care in the United States.


Thiru Balasubramaniam
Geneva Representative
Knowledge Ecology International (KEI)

thiru at keionline.org

Tel: +41 22 791 6727
Mobile: +41 76 508 0997

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