[Ip-health] First Post: The UN Human Rights Council (UNHRC) on Friday adopted a landmark resolution on access to medicines

Thiru Balasubramaniam thiru at keionline.org
Sun Jul 3 23:45:42 PDT 2016


Shreerupa Mitra-Jha  Jul 2, 2016 12:32 IST

The UN Human Rights Council (UNHRC) on Friday adopted a landmark resolution
on access to medicines – in order to examine the relation between
intellectual property rights, trade agreements and access issues –
sponsored by a group of developing countries, including India.

The resolution – Access to medicines in the context of the right of
everyone to the enjoyment of the highest attainable standard of physical
and mental health – initiated by Brazil, China, Egypt, India, Indonesia,
Senegal, South Africa and Thailand was adopted by consensus. Though not
before Switzerland, the UK, the US, the EU, among other countries,
reiterated their objections to the parts of the text that they found

The resolution garnered more than 70 co-sponsors eventually.

The central tenet of the original text premises itself "on the primacy of
human rights over international trade, investment and intellectual property

Switzerland, the US, Japan and the EU are home to giant pharmaceutical
companies whose profits are cut down by competition from thriving generic
industries, particularly in India.

The resolution was initiated by Brazil, China, Egypt, India, Indonesia,
Senegal, South Africa and Thailand. Reuters

Brazil, when introducing the resolution said that access to medicines in
the context of human rights remains an “illusive goal” for millions of

The World Health Organization in its World Medicines Situations Report of
2011 states that at least one-third of the world population has no regular
access to medicines.

“The challenges are no longer limited to developing countries or so-called
neglected diseases –it is affecting people in the global North as well as
stretching the health budgets of all governments and impacting treatment to
common diseases like hepatitis and cancer,” said Ajit Kumar, ambassador of
India to the UN office at Geneva.

“The existing global framework does not allow the fruits of medical
innovation to be equitably shared in particular to those most in need of
them,” he added.

This has resulted in skyrocketing prices for life-saving medicines and
vaccines promoting discriminatory access to medicines.

Increase in health-care cost pushes 150 million people into impoverishment
every year.

The resolution notes that “actual or potential conflicts exist” between the
WTO’s implementation of the agreement on Trade-Related Aspects of
Intellectual Property Rights (TRIPS) and the realization of economic,
social and cultural rights in relation to restrictions on access to
patented pharmaceuticals and the implications for the enjoyment of the
right to health.

It urges member states to make full us of TRIPS flexibilities.

This paragraph has not go down well with many developed states who see
TRIPS flexibilities as a hurdle for their businesses’ earnings.

Barriers to the full use of TRIPS flexibilities have only increased, India
told the Council.

The adopted text also emphasises strengthening viable financing options,
and to promote the use of affordable medicines, including generics, as well
as promoting “policy coherence in the areas of human rights, intellectual
property and international trade and investment when considering access to

Earlier, during informal consultations, Netherlands wanted reference to
‘generics’ removed altogether but the reference was retained. Netherlands
also wanted to replace the word “full” use of TRIPS flexibilities with
“appropriate” use of TRIPS flexibilities — thus watering down the language.
That suggestion was also not accepted.

The UNHRC resolution further calls on the states to apply the principle of
delinking medical research and development from the prices of medicines,
diagnostics and vaccines.

There would be a panel discussion by the Council on the issues of access to
medicines, vaccines and diagnostics in March 2017 where the United Nations
High-Level Panel on Access to Medicines (UNHLP) will be invited to present
their findings and which countries would best to practices, Brazil

International objections

The UK said that though it is ready to adopt the resolution by consensus,
it finds a number of provisions in the text to be “problematic”.

“It has a substantial amount of language that has been intricately
negotiated by experts from the WHO, WTO and WIPO. Here those individual
paragraphs are transplanted out of context and take the resolution well
beyond the remit of the UNHRC,” UK’s ambassador to the UN in Geneva Julian
Braithwaite told the Council.

The UK also added that the paragraph stressing – “the responsibility of
states to ensure access for all, without discrimination to medicines, in
particular essential medicines, that are affordable, safe, efficacious and
of quality” – is untenable by law. It is not the state’s responsibility to
do so.

The document that asks for the Council to convene a panel discussion on
best practices and challenges to access to medicines is duplicating the
efforts already being made by the WHO and UNHLP on Access to Medicine,
according to the British diplomat.

The UNHLP was not established by consensus, [Switzerland] told the Council.
The developed countries, particularly the US, the EU, Japan, the UK object
to the reference of UNHLP during most negotiations at the UN.

The resolution fails to strike a balance between the protection of
intellectual property and patents as incentivising innovation, and the use
of TRIPS flexibilities, [Switzerland] said. The reference to price of
medicines in the resolution is an inadequate simplification of the issue,
he added, stating that patents and prices are not directly linked.

Switzerland during the informal consultations said that it wants to delete
language on "effects on prices". The language, however, was retained.

The re-opened dialogue on the European Free Trade Association trade deal,
after Prime Minister Narendra Modi visited Switzerland recently, had been
stuck since 2008 due to the high ambition of Swiss pharmaceutical
industries on patent rights. Additionally, Swiss and American
pharmaceutical companies have burnt their fingers fighting for exclusive
intellectual property rights in Indian courts.

Netherlands speaking on behalf of the EU said it disagrees that there is a
misalignment between rights of inventors, international human rights law,
trade rules and public health.

The EU had earlier said that it rejects the primacy of human rights over
international trade.

A key finding of a joint WHO-WTO-WIPO trilateral study does away with the
assumption that the right of inventors is the main impediment to innovation
and access to health, the Netherlands’ ambassador Roderick Van Schreven
said. Brazil, during the informal discussions on the text, had countered
this argument by saying that the core group of countries have not taken on
board the findings of the trilateral study because the study does not take
on board human rights.

“Implicit in this resolution is the principle that the lack of access to
medicines constitutes a violation of the right to health,” said Thiru
Balasubramaniam of Knowledge Ecology International, an award-winning
non-profit organization that works on advancing public interest in
intellectual property policy.

“While the resolution contained good language calling upon states to make
full use of the flexibilities contained in the WTO TRIPS Agreement, it was
disappointing to observe the hard-line stance adopted by the European Union
(represented by the Netherlands), the United Kingdom and Switzerland in
trying to remove references to TRIPS flexibilities in the operative section
of the text,” he added.

Another similar resolution – Promoting the rights of everyone to the
enjoyment of the highest attainable standard of physical and mental health
through enhancing capacity-building in public health – sponsored by
Algeria, Brazil, China, Egypt, Iran, Pakistan, South Africa, among other
countries was also adopted without a vote on 1 July

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