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.
First Post rightly states that the central tenet of the original text premises itself “on the primacy of human rights over international trade, investment and intellectual property regimes“. In particular, the Resolution notes that “actual or potential conflicts exist between the implementation of the (TRIPS) and the realization of economic, social and cultural rights in relation to, inter alia, restrictions on access to patented pharmaceuticals and the implications for the enjoyment of the right to health”. Accordingly, the Resolution calls upon developing nations to take complete advantage of the flexibilities afforded by TRIPS; including those provided under the Doha Declaration and other international instruments, so as to promote access to “comprehensive and cost-effective prevention, treatment and care for the integrated management of non-communicable diseases, including, inter alia, increased access to affordable, safe, efficacious and quality medicines and diagnostics and other technologies”.
Falling in Place
The adoption of this Resolution, albeit successful, was preceded by a display of the usual discord between the developing and the developed over conceptual and fundamental differences relating to access. Essentially, the sponsors of this Resolution heavily relied upon a human rights-based approach to further their cause of increasing access. On the other hand, developing states objected to the harsh approach proposed by the Resolution citing necessity for an incentive-based patent regime to ensure overall social welfare.
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.
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The gradual shift of these access debates from a primarily patent jurisprudence landscape, to one of countervailing values brings me to the normative value of ‘framing’ these debates in language outside of that of patent jurisprudence. A few years ago on the blog, Swaraj had discussed the use of bringing in a countervailing ‘value’, such as ‘human rights’, with which to talk about how IP affects health. In the three-part post, Swaraj discussed the link between the underlying justification of a patent system, the de-facto supremacy of corporate influence in determining patent policy in reality and the importance of factors external to the IP framework in defining those which are internal to it. The third part of his post argues that the human rights based approach is an important tool for the access side to more equitable balance against the more powerful innovator side in terms of influencing policy.