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 problematic.
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 regimes".
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.
Brazil, when introducing the resolution said that access to medicines in the context of human rights remains an “illusive goal” for millions of people.
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 medicines”.
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 where countries share their best practices on access, Brazil announced.
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, Swiss diplomat Benjamin Müller 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, Müller 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, including through the use of external trade pressure, 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.