TWN Info Service on Intellectual Property Issues (Mar17/05)
13 March 2017
Third World Network
Rights Council holds panel discussion on access to drugs
Published in SUNS #8420 dated 13 March 2017
Geneva, 10 Mar (Kanaga Raja) -- The UN Human Rights Council on Wednesday held a
panel discussion to review the key challenges to ensuring access to medicines
as well as exchange views on good practices, including exploring the
recommendations of the UN Secretary-General's High Level Panel on Access to
The panel discussion took place during the regular thirty-fourth session of the
Human Rights Council, meeting here from 27 February to 24 March.
The Human Rights Council, at its thirty-second session last July, had decided
to convene at its thirty-fourth session, "a panel discussion to exchange
views on good practices and key challenges relevant to access to medicines as
one of the fundamental elements of the right of everyone to the enjoyment of
the highest attainable standard of physical and mental health, taking into
account all relevant reports, and that the discussion shall be fully accessible
to persons with disabilities."
The Council had also requested the High Commissioner for Human Rights to
prepare a summary report on the panel discussion and to submit it to the
Council at its thirty-sixth session.
The panel discussion was chaired by the Vice President of the Human Rights
Council, Ambassador Mouayed Saleh of Iraq, and moderated by Ambassador Maria
Nazareth Farani Azevedo of Brazil.
The panellists included Ms Ruth Dreifuss, former President of Switzerland, and
Co-Chair of the Secretary-General's High Level Panel on Access to Medicines; Mr
Michael Kirby, former Justice of the High Court of Australia and a member of
the High Level Panel; Dr Marie-Paule Kieny, Assistant Director-General, Health
Systems and Innovation, World Health Organisation; Mr Anthony Taubman, Director
of the Intellectual Property Division at the World Trade Organisation; Mr
Thomas Bombelles, Head of Global Health at the Global Issues Sector, World
Intellectual Property Organisation; Mr Carlos Correa, Special Advisor on Trade
and Intellectual Property, South Centre; and Mr James Zhan, Director of the
UNCTAD Division on Investment and Enterprise.
The UN Deputy High Commissioner for Human Rights, Ms Kate Gilmore, who opened
the panel discussion, said that the right to health and its associated
obligations calls on States to ensure universal access to good quality health
care, including essential medicines, on the basis of equality and
In this, she said, the protection of those who are otherwise marginalised,
those with the fewest options, those who routinely are left behind, their
protection is essential. For without access to life saving commodities to scale
the realisation of the right to health will remain an unattainable goal for
numerous countries and thus for millions of their people.
She said further enjoyment of the benefits of scientific progress is a right in
and of itself. It is recognised in the Universal Declaration of Human Rights
and the International Covenant on Economic, Social and Cultural Rights, and
among its key elements is the affirmation that innovations essential for a life
with dignity should be accessible to everyone, without discrimination.
These human rights norms are so fundamental - so intertwined with numerous
other rights as to be binding on all States.
And yet today, she noted, millions live without access to essential medicines
not due to an inherent lack of these commodities, but due entirely to policy
deficits and entrenched practices, due to our choices, choices that place in
the balance the lives and well being of millions the world over - and not only
those that are resident in low- income countries.
For example, as of June last year, 18.2 million people were living with HIV but
only one half of them had access to antiretroviral therapy. That the 50% of
those living with HIV have such access is a vast improvement on previous
periods, but it is simply not enough.
Referring to International Women's Day, being celebrated on Wednesday, Ms
Gilmore said today "we are indeed celebrating globally women, their
achievements and their contribution and yet today, still falsely packaged as
cultural and political preferences, we witness the denial of women's and girls'
access to essential medicines with the consequence for their wellbeing of
injury and death."
She emphasised it is unconscionable that today young women can be old enough to
catch a sexually transmitted infection (STI) but deemed too young to have
autonomous access to services for its treatment. It is indefensible that a
young women can be old enough to be pregnant but too young to have access to
"It is unconscionable that we should condemn young women for becoming
pregnant, expel them from schools, and refuse to provide them with the
medicines, the information, the education and services they need to be in
control of their own fertility."
When medicines are put beyond the reach or means of those who most need them,
families and communities are left to manage tragic consequences.
Concrete steps can and must be taken to course correct, when course correction
is urgently required, she said.
As the Special Rapporteur on health has pointed out, States do need to shift
from the dominant more market- oriented perspective on access to medicines
towards fulfilment of the right-to-health paradigm. Powerful commercial and
other interests should not dictate public health policy to the detriment of the
fulfilment of human rights.
This means among other things recognizing, and responding to a number of
challenges. Among the challenges cited by the Deputy High Commissioner for
Human Rights are:
* The protection of intellectual property rights must not be allowed to trump
enjoyment of the right to health. Strong competition laws and policies together
with forceful enforcement are required to prevent companies from indulging in
anti-competitive practices and to promote competitive pricing of medicines.
* Human rights and stakeholder participation both must influence trade
Stakeholders do have a right to influence health policy formulation,
implementation, and its monitoring and under the human rights-based approach -
trade and investment agreements should be negotiated with human rights in mind
and concluded with human rights input.
* Availability, accessibility, and acceptability of good quality medicines for
everyone on the basis of non- discrimination must be integrated into all public
health policy frameworks.
* Policy makers and other actors responsible for the implementation of health
policy should be made accountable - an accountability to the users of health
For this to take place, "we have the opportunity - not only the
responsibility - to undo the power imbalances that lie at the heart of this
issue by empowering rights-holders to be partners in health, to claim their
health and health-related rights and to enable health policy makers to make
people-centred decisions and hold them accountable for delivering on
According to Ms Gilmore, perhaps the greatest obstacle to fulfilling the
obligation to ensure access to essential medicines for all is political will.
She said it is also a question of health economics, it is a matter of the
ethics of the pharmaceutical industry, it's the responsibility of health care
providers and health professionals and indeed their schools.
Today we call on all these authorities and actors under the banner of the state
health plans incorporating human rights to stand up for the right to health.
It's a call of true poignancy given that today is International Women's Day and
given how many women's, newborns', children and adolescents' lives hang in the
balance of this determination, that indeed the right to health should be
available to one and all, said Ms Gilmore.
Ambassador Maria Azevedo of Brazil, the moderator of the panel discussion,
explained that based on the request of the Human Rights Council, this panel
discussion will provide a platform for states and all relevant stakeholders to
review key challenges applicable to ensuring access to medicines and to
exchange views on good practices in this regard.
The discussion will also explore from a human rights perspective, the
recommendations presented by the United Nations Secretary-General's High Level
Panel on Access to Medicines.
She said every human being is entitled to the enjoyment of the highest
attainable standard of physical and mental health conducive to living a life in
dignity. States are obliged to respect, protect, and fulfil this right,
including ensuring access to medicines, recognising the essential importance of
international cooperation and technical assistance to this effect.
She noted that even with the great potential of science and technology to
advance health care, at least one-third of the world population has no regular
access to medicines. The recent outbreaks of highly infectious diseases and
epidemics have demonstrated the importance of developing new and innovative
medicines and vaccines.
Ms Ruth Dreifuss, Co-Chair of the UN Secretary-General's High Level Panel on
Access to Medicines, explained the mandate and work of the High Level Panel.
She said that the panellists had scrupulously confined themselves to the
limited mandate that they had been given.
She pointed out that the mandate was not confined only to access to medicines.
On the one hand, prevention, treatment, rehabilitation and social integration
required access by all not just to medicines but to vaccines, diagnostic tools
and all sorts of medical equipment.
On the other hand, the mandate also addressed shortcomings in biomedical
research and in the development of medicines.
Incentives provided by intellectual property rules are based on the existence
of a viable market, and are thus inapplicable to many diseases.
In this context, she highlighted as examples the neglected tropical diseases
and rare diseases in particular, vaccines, child formulas, and new solutions to
growing antibiotic resistance.
Ms Dreifuss pointed out that when R&D particularly for non-infectious
diseases which now represent the most serious health burden both in the North
and South, leads to new medicines, the time-limited monopoly afforded by
patents and licenses leads to prices which prevent many persons suffering (from
the diseases) from benefiting from the progress in science, not just when they
have to pay for these medicines of out of their own pockets but even leading to
problems in health systems which are designed to guarantee universal coverage
but are forced to introduce restrictions and rationing of such treatment and
She said the mandate (of the High Level Panel) refers to the legitimate rights
of inventors. Inventors by their very nature are physical persons and they are
entitled to fair remuneration and recognition for their contribution to
But the legitimate rights of inventors are not the same thing as intellectual
property rights, Ms Dreifuss said.
Intellectual property rights are usually given to companies who are given a
time limit to the exclusive right to use an invention.
These are intellectual property rights, and not the legitimate rights of
inventors, which come under the rules of international trade and which have
positive and negative consequences on the development of medical technologies
and on access to them.
"That was the focus of our [the High Level Panel's] deliberations,"
she said. Doing its work, the Panel built on the deliberations of the World
Trade Organisation and of the World Health Organisation.
She said that trade rules and intellectual property rights were developed in
order to promote economic growth and to stimulate innovation. On the one hand
governments seek to get the economic benefits of international trade.
On the other hand, the obligation to respect the medical technology patents can
in some cases be an impediment to public health objectives.
"We therefore must welcome the Doha Declaration [on the TRIPS Agreement
and public health] introducing flexibilities for states in meeting these
obligations," she said.
"But we must also emphasise the fact that there is continuing incoherence
particularly because subsequent negotiations have reduced the Doha Declaration
flexibilities or put countries under pressure, preventing them from invoking
the flexibilities," Ms Dreifuss added.
She highlighted that the High Level Panel had recognised that it is a matter of
state sovereignty for states to lay down the criteria for granting patents and
also for states to determine health emergencies which require them to take
"We also emphasised the importance of transparency as an absolute
precondition for ensuring the coherence we were called upon to address with
proposals in order to achieve that coherence," she said.
Mr Michael Kirby, a member of the High Level Panel on Access to Medicines, said
that the issue that is before us is not just a matter of ethics, though it is
that. It is also a matter of international law.
He said great developments have been achieved in inventions relevant to the
right to health, in the distribution of those inventions and in global
However, high amongst the impediments for the attainment of the right to health
have been the clash of policy incoherence and the weaknesses of market
mechanisms in stimulating invention and in promoting just distribution in
accordance with human rights principles.
He said the High Level Panel unusually conducted public hearings in London,
Johannesburg, and with links to Bangkok, so as to listen to the nation states,
to listen to industry, to listen to civil society and to individuals effectively
denied access to essential medicines.
"We will never forget the voices of those who are left behind, who came
before our public hearings. Many of them women and girls, representing families
forced to beg for charity and the supply of patented drugs that would save
lives, but often denied that charity as outside the guidelines for selective
"We will never forget the people of Africa and Asia who have contracted
multi-drug resistant tuberculosis and who cannot afford the prohibitively
costly therapies of limited effectiveness that is presently all that is
available," said Mr Kirby.
"It is therefore necessary to say bluntly at this session that unless the
world and the United Nations and this Council act now, there is no way that we will
attain Sustainable Development Goal No. 3 by 2030," he underlined, warning
that millions will be left behind and millions will die.
[Goal 3 states: Ensuring healthy lives and promoting the well-being for all at
all ages is essential to sustainable development. Significant strides have been
made in increasing life expectancy and reducing some of the common killers
associated with child and maternal mortality. Major progress has been made on
increasing access to clean water and sanitation, reducing malaria,
tuberculosis, polio and the spread of HIV/AIDS. However, many more efforts are
needed to fully eradicate a wide range of diseases and address many different
persistent and emerging health issues.]
"In the High Level Panel some of us would have gone further than in the
report which we produced. Some of us would have taken a different path than in
this report. But all of us agreed on the core of essential conclusions which
represented our consensus," he said.
Among those conclusions were, first, that the World Trade Organisation members
must respect the flexibilities in the TRIPS Agreement and respect human rights
protection in the Doha Declaration.
"There must be no more pressuring to force countries to surrender their
rights in a health necessity, to invoke compulsory licenses and to contest
‘ever greening' and other misuse of market power," said Mr Kirby.
Second, he said, the international community should negotiate a global R&D
treaty to repair the market failures in the invention and availability of
essential medicines for all.
Thirdly, the United Nations Secretary-General should initiate an independent
review body for health and technology innovation with a high level meeting by
2018 to address global market weaknesses once and for all, he said.
"Of all the evidence that I heard during the High Level Panel public
hearings, curiously the voice that was most haunting was actually the call in
London by the Ambassador of the Kingdom of the Netherlands."
"Don't assume," he said, "that this is just a problem for poor
countries or poor people. This is a challenge for us all - a challenge for the
Netherlands, a rich inventive country. The cost of essential drugs is now
excessive for our budget. We must all combine to tackle these excesses and
failures in the uncorrected market."
The policy incoherence, Mr. Kirby stressed, therefore needs to be addressed.
The High Level Panel report is the minimum prudent package that is placed
before this Council. Its foundation is indisputably universal human rights, he
"And respectfully we suggest it deserves the support of this
Council," he added.
Dr Carlos Correa of the Geneva-based South Centre focused on the recommendation
contained in page 28 of the High Level Panel report which states:
"Governments engaged in bilateral and regional trade and investment
treaties should ensure that these agreements do not include provisions that
interfere with their obligations to fulfil the right to health. As a first
step, they must undertake public health impact assessments. These impact
assessments should verify that the increased trade and economic benefits are
not endangering or impeding the human rights and public health obligations of
the nation and its people before entering into commitments. Such assessments
should inform negotiations, be conducted transparently and made publicly
Referring specifically to these impact assessments, he said that there is a
long tradition of impact studies on the environment, but at this stage there
are other examples in which we carry out these impact assessments in other
areas such as food security etc.
He cited a study carried out in 2006 by the National Commission for Human
Rights of Thailand on the potential impact on public health of the intellectual
property provisions that were being negotiated at that time in a trade
agreement with the United States.
A number of academic studies also ex ante have taken place prior to trade
agreements being brokered such as the CAFTA agreement with the Central American
countries. There have also been methodologies proposed by a number of
Following the recommendation made by the High Level Panel, it would be
important for this Council to decidedly embark upon the development of some
methodologies and guidelines for the realisation of impact assessment studies,
Another aspect of the report speaks about access to medicines, he said,
pointing out that today this is not only a concern of the developing countries
but also of developed countries.
Many patients in developed countries today cannot have access to treatment and
the medicines they need as a result of extremely high prices of some medicines
that are on the market.
He underlined that the majority of the impact assessments on public health have
been carried out ex ante, in other words, before the negotiation of bilateral
or regional agreements that increase intellectual property protection and
typically extend the monopoly of patents and force countries to establish
exclusive rights pertaining to the outcome of clinical studies.
As a result of this ex ante approach, there is a lack of appropriate
methodologies to address the ex post consequences of the adoption of certain
intellectual property rights protection standards.
Frequently, it is said that if there are countries who ratify free trade
agreements which contain provisions that raise intellectual property rights
protection that can be at odds with human rights, it is also said that it is a
governmental issue that gives rise to other trade advantages, so it is not
In reality that is not the case. Developing countries that accept these
maximalist provisions in terms of intellectual property rights do so in
asymmetric power relationships, and they do not have the power to resist the
imposition of these protectionist provisions as far as intellectual property is
concerned in the agreements they ratify, said Dr Correa.
The risk assessment must happen ex ante and ex post and you would need to look
at the current effects of intellectual property standards. We need to look at
the TRIPS Agreement but also other agreements in which TRIPS-plus (standards)
have also been adopted, he said.
He emphasised that the outcome of this wave of over-protectionism in the area
of intellectual property rights should not be deemed to be irrevocable. None of
this is carved in stone, said Dr Correa.
Dr Marie-Paul Kieny of the WHO highlighted the activities of the organisation
in supporting access to medicines and the challenges faced in this context.
She said that the WHO has a long tradition of commitment and activity to
support access to medicines as one of the fundamental elements of the right of
everyone to the enjoyment of the highest attainable standard of physical and
Mr Taubman of the Intellectual Property Division of the WTO said that today's
discussion is a welcome step forward in the journey together towards the shared
goal of access to medicines for all, and promoting the development of urgently
needed new medicines, recognizing the centrality of the human rights
perspective for this collective effort.
For the WTO, the Doha Declaration was a significant milestone on this same
journey. Unanimously, at the highest political level, Doha framed the legal,
practical and policy context of TRIPS squarely within a public health setting.
Doha remains a benchmark for policymakers today, all the more pertinent in the
light of the SDGs, the growing complex of regional and bilateral trade
agreements, and the renewed multilateral dialogue exemplified by the very
Resolution that established this panel, he said.
Mr Bombelles of WIPO said that the promotion of intellectual property as a tool
to support innovation, creativity and economic development is central to WIPO's
activity and reason for existing.
Importantly, WIPO's founding documents stress that WIPO should pursue its
mandate in coordination with other UN bodies, and also participate in the
relevant work of other UN bodies.
"Our Mission is to lead the development of a balanced and effective
international intellectual property (IP) system that enables innovation and
creativity for the benefit of all."
In this context, he said, WIPO and its Member States have long understood and
appreciated that intellectual property has transcended the confines of legal
issues relating to patents, copyrights, trademarks, etc., and touched on many
of the most important public policy issues of our time, including health,
environment, food security and many others.
In the field of global health specifically, the question of how to
simultaneously sustain innovation in new medicines and other health
technologies, while also ensuring access for all, is a central challenge, he
Mr Zhan of the UN Conference on Trade and Development (UNCTAD), amongst others,
highlighted that UNCTAD has been working on access to medicines since 2005,
from the specific angle of intellectual property rights and investment in local
pharmaceutical production. +