In its first ever scrutiny of the TRIPS agreement, the UN Sub-Commission on Human Rights has questioned the balance of rights between those promoted by the TRIPS agreement and the broader human rights of people and communities, including farmers and indigenous peoples worldwide.

by Someshwar Singh

Geneva,28 Aug 2000 -- The balance of rights between those promoted by the Agreement on Trade-Related Aspects of Intellectual Property Rights (TRIPS) of the World Trade Organization (WTO) and the broader human rights of people and communities, including farmers and indigenous peoples worldwide, has been questioned by the United Nations Commission on Human Rights.

In its first-ever scrutiny of an important WTO agreement, the UN Sub-Commission for the Protection and Promotion of Human Rights, unanimously adopted a resolution on “Intellectual Property Rights and Human Rights” on Thursday, 17 August.

This resolution (E/CN.4/Sub.2/2000/L.20) promises to throw a bigger spotlight on the human rights impact of the TRIPS agreement. Not only does it call on the UN High Commissioner for Human Rights to undertake an analysis, it also asks the UN Secretary General to prepare a report on the implications of the TRIPS Agreement and options for further action by the Sub-Commission.

The resolution has also recommended to the World Intellectual Property Organization (WIPO), the World Health Organization (WHO), the United Nations Development Programme (UNDP), the United Nations Conference on Trade and Development (UNCTAD), the United Nations Environment Programme (UNEP) and other relevant United Nations agencies that they continue and deepen their analysis of the impacts of the TRIPS Agreement, including a consideration of its human rights implications.

The resolution requests the World Trade Organization, in general, and the Council on TRIPS during its ongoing review of the TRIPS Agreement, in particular, “to take fully into account the existing State obligations under international human rights instruments.”

The UN Sub-Commission’s resolution marks the beginning of what promises to be a closer monitoring of the impact on people of agreements promoted at the WTO by the UN human rights system as it examines the economic, social and cultural implications.  But the UN resolution, welcomed by a number of civil society organizations, has already made some rather fundamental observations.  It recognizes, for instance, that there is a conflict between the ‘private’ interests of intellectual property rights (IPR) holders, championed by TRIPS, and the ‘social’ or ‘public’ concerns embodied in international human rights law.

“The right to protection of the moral and material interests resulting from any scientific, literary or artistic production of which one is the author is, in accordance with article 27, paragraph 2, of the Universal Declaration of Human Rights and article 15, paragraph 1 c), of the International Covenant on Economic, Social and Cultural Rights, a human right, subject to limitations in the public interest,” the resolution affirms.

It declares that “since the implementation of the TRIPS Agreement does not adequately reflect the fundamental nature and indivisibility of all human rights, including the right of everyone to enjoy the benefits of scientific progress and its applications, the right to health, the right to food, and the right to self-determination, there are apparent conflicts between the intellectual property rights regime embodied in the TRIPS Agreement, on the one hand, and international human rights law, on the other.”

The resolution notes that the Human Development Reports of 1999 and 2000 identify circumstances “attributable to the implementation of the TRIPS Agreement that constitute contraventions of international human rights law.”

In view of that ‘disconnect’ between individual and public rights, and the fact that the former are “subject to limitations in the public interest,” the UN resolution requests Governments “to integrate into their national and local legislations and policies, provisions, in accordance with international human rights obligations and principles, that protect the social function of intellectual property.”

The inter-governmental organizations have also been requested “to integrate into their policies, practices and operations, provisions, in accordance with international human rights obligations and principles, that protect the social function of intellectual property.”

Welcoming the Sub-Commission resolution, Kristin Dawkins of the US-based Institute for Agriculture and Trade Policy (IATP) called it “a courageous act in today’s political climate.”

Commenting on the role of the pharmaceutical industry in the drafting of the TRIPS Agreement, she said that “the TRIPS requirements for an ‘effective’ system of intellectual property protection for plant varieties could violate Farmers’ Rights to save, exchange, re-use and sell seed from their own harvests.”

“Already in the United States, the Monsanto Company (recently acquired by Pharmacia, Inc.) has employed Pinkerton detectives to find and prosecute farmers who are harvesting seed from its patented crops. If replicated throughout the world, such enforcement of intellectual property rights would violate the human rights of hundreds of millions of farming families who depend on recycling seed for survival.”

This, Dawkins said, would constitute a direct violation of Article 1 of the Covenant on Economic, Social and Cultural Rights which stipulates that: “In no case may a people be deprived of its own means of subsistence.”

According to Dawkins, who is Vice President of International Programs at IATP, with the advent of TRIPS, virtually all the world’s nations have lost their right to determine the balance of private and public benefits designed to meet national development goals. Instead, they must comply with a single international standard designed to open their markets to transnational corporate interests.

“During the negotiations, a self-appointed Intellectual Property Committee consisting of Bristol Myers, DuPont, General Electric, Hewlett Packard, IBM, Johnson and Johnson, Merck, Monsanto, Pfizer, Rockwell, and Time-Warner lobbied GATT negotiators extensively,” she observed.

“Diplomats in Geneva concede that the pharmaceutical industry actually drafted much of the TRIPS text, and the industry’s lead advocate inside the negotiating room was the U.S. government.”

The UN resolution comes at a time of intense questioning by developing-country governments of the TRIPS Agreement and its interpretation and implementation, and of calls by numerous national and international civil society alliances for the TRIPS Agreement to be brought in line with human rights and environmental imperatives.

“This is a path breaking resolution in more ways than one”, said Miloon Kothari from the International NGO Committee on Human Rights in Trade and Investment (INCHRITI), an alliance of eight human rights coalitions that advocated action by the Sub-Commission on TRIPS.

“First and foremost, this timely resolution signifies the resolve of the UN human rights programme to monitor the work of the WTO,” added Kothari.

“Basing itself on the provisions of both the UN Covenant on Economic, Social and Cultural Rights and the UN Convention on Biological Diversity, this historic resolution has firmly affirmed the primacy of human rights and environmental obligations over the commercial and profit-driven motives upon which agreements such as TRIPS are based.”

According to Peter Prove of the Lutheran World Federation, “a human rights analysis of the interpretation and implementation of the TRIPS Agreement reveals that TRIPS has skewed the balance inherent in intellectual property law systems away from the public interest and in favour of intellectual property rights holders.”

He said that “contrary to some analyses, intellectual property rights do not have the character of fundamental human rights, but rather of subordinate or instrumental rights. - SUNS4728

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