Rights jurists for sui generis systems on pharmaceutical IPRs

by Chakravarthi Raghavan

Geneva, 7 Aug 2001 - Two human rights jurists have said countries should be allowed to establish sui generis systems of IPR protection in the area of pharmaceuticals, and have called for a review of TRIPS to strengthen the provisions in Articles 7, 8, 30 and 31, seeking to ameliorate the adverse consequences of full IPR protection.

The two jurists, Mr. J.Oloka-Onyango (Uganda) and Ms. Deepika Udagama (Sri Lanka), as UN Special Rapporteurs, have asked WTO member states to come out with a “specific and unequivocal undertaking to the effect that no provision of the agreement prohibits members from taking measures to provide access to medicines at affordable prices, promote public health and nutrition.” They made this recommendation in a progress report to the Sub-Commission on the Promotion and Protection of Human Rights.

The jurists have said that the arguments for stringent patent protection (through TRIPS) to promote innovation and invention “is one that over-privileges the owners of capital,” and call for the strengthening of the provisions of the TRIPS (Articles 7, 8, 30 and 31) seeking to provide a balance of the public interest with the rights and incentives for innovation.

“Thought should also be given”, the Special Rapporteurs say, “for allowing WTO member states to establish a sui generis regime of protection in the area of pharmaceuticals, given their critical relationship to the full enjoyment of human rights.”

In their progress report, ‘Globalization and its Impact on Full Enjoyment of Human Rights’ (E/CN.4/Sub.2/2001/10), introduced and presented by them Tuesday to the UN Sub-Commission now in session here, the two jurists have reaffirmed the position they had set out last year that the World Trade Organization (WTO), as also the World Bank and the International Monetary Fund, as international organizations, are bound by the UN Charter and respect fundamental principles of international human rights law covering civil, political, economic, social and cultural rights enshrined in the Universal Declaration of Human Rights and the two international covenants.

The UN Charter and its obligations, the two jurists point out, override all international agreements before and after the Charter, and to the extent of any inconsistencies, the Charter prevails. The WTO, the World Bank and the IMF, as multilateral institutions, cannot take the position that it is for their members to carry out their obligations and promote enjoyment of the rights.

The two jurists complain of some ambivalence in the attitudes of these multilateral institutions about the policies and activities and their effects on the human rights of people.

They refer to the views of the WTO, before the UN Committee on Right to Development this year, that through their policies of trade liberalisation, they were creating conditions for development, but that the WTO only deals with relations between States and it was for the member-states to take actions falling in the area of state-individual relations and take actions to promote human rights.

The main issue at stake is not what members do to implement rules, regulations and policies of an international organization, even if this can have some impact on addressing concerns of equity and inclusion.

“Rather, it is the policies themselves and their impact that are an issue. What is at stake is whether the WTO institutionally recognizes that it is under an obligation to respect the basic tenets of international law spelt out in the UN Charter, principles of customary international law and, indeed, principles of jus cogens. What is the WTO as distinct from its membership? As an international organization it is not merely an aggregate of the legal personality of its Member units. It enjoys separate legal personality; it not only has rights, but also international obligations. This is a fundamental principle of public international law recognized in Art.VIII of the WTO Agreement, conferring the WTO with legal personal capacity, as well as the usual privileges and immunities necessary for the exercise of functions. In this regard, the assertion (of the WTO) that it is up to individual members to respect human rights lacks sufficient merit.

“We reiterate the position taken in our previous report that the WTO qua an international organization, created and functioning under general principles of international law, is bound to respect the fundamental principles of international human rights law which form part of the general principles of law.  For example, could the WTO facilitate the formulation of policies that result in entrenched gender discrimination or the extreme use of child labour - and the causal connection is very clear - and yet maintain it has no legal responsibility to change such policies?

“If the answer is in the affirmative, then such a position is a grave threat to the international rule of law,” the rapporteurs add.

The Sub-Commission members (and alternates) are experts serving in their personal capacities.

Oloka-Onyango and Udagama, on Monday briefed the civil society groups, observers at the Sub-Commission, about the broad thrust of their report. Two officials from the WTO were also present at the briefing for NGOs.

Their progress report, they said, looked at the tensions between international economic law and practices (of these institutions) and international humanitarian law - set out in Universal Declaration of Human Rights and the two principal human rights covenants (the International Covenant on Civil and Political Rights and the International Covenant on Economic, Social and Cultural Rights), more recent instruments on situation of special marginalised groups, regional and subregional initiatives, and the Right to Development in the 1986 Declaration and further enunciated in World Conferences, starting with the 1993 Vienna Conference on Human Rights, and the notion of the indivisibility, inter-connectedness and inter-relatedness of human rights.

The rapporteurs said that their report also covered the issues of civil society and the process of globalization taking place within a context of social tension and political discordance, and the growing global movement of activists drawn from all walks of life seeking to have their voices heard in the debate about the adverse consequences of globalization.

Written before the Genoa G-8 meetings and the repression and handling of the protests by the Italian government, the Special Rapporteurs take note of Seattle, Quebec, the May Day anti-globalization demonstrations in cities across the world - all of which “illustrate that something is seriously amiss.”

From a human rights perspective, say the rapporteurs, the organization and operation of these movements and the retaliation to them raise numerous questions concerning the rights to free expression, assembly and association - features of the human rights regime at the core of the many instruments.”

“At a minimum, human rights activists must express concern at the manner in which such protests are being handled by state authorities, and the degree to which the institutions against which those protests are directed are manifesting a concern with the issues raised by them.

“Globalization is therefore not simply an issue of economics; it is very much a political phenomenon. Coming to grips with the politics of globalization is thus an essential pre-requisite to the design of alternative structures of international economy and governance.

“Understanding the politics of globalization means that it is wrong to simply dismiss the anti-globalization protests as the machinations of ex-hippies nostalgic for the heady days of anti-war protest,” the jurists say.

The most important lesson from Seattle and others since then, the rapporteurs say, “ is that there is an urgent need to pause and critically reflect on the most appropriate to enhance the positive, and confront and eliminate the negative aspects of globalization. Only then can we ensure that the processes of globalization are sensitive to the goals of sustainable human development, of which the promotion and protection of human rights is paramount.”

“Globalization is not divinely ordained, nor are its basic tents foreclosed from negotiation; it is not ‘a natural event, an inevitable global progression of consolidated economic growth and development.’ Rather, the phenomenon of globalization is the product of human society. As such it is motivated by specific ideologies, interests and institutions... globalization has no a priori or inevitable existence independent of the structures humankind has put in place.”

The progress report covers the implications of the WTO agreements, with particular focus on the TRIPS and health and nutrition issues, and the Dispute Settlement Understanding (DSU) and the way it works, as well as the Fund-Bank structural adjustment and poverty reduction programmes, and underscores the institutional obligations (of the WTO, the World Bank and the IMF), apart from that of the member-States, not to promote or require policies that exacerbate poverty, diminution of standards of livelihood and further distortion of existing social and global imbalances.

In their report last year, the two had rejected the idea of imposing ‘human rights’ conditionalities by these multilateral institutions, but argued for positive measures to promote the rights. In the progress report they have carried this further, and have called for a restatement of the international law, and the obligations of these institutions to abide by them, and the need for all those concerned with the processes of globalization and their varied impacts to move away from policies not rooted in a perspective that gives human rights pride of place.

Say the two jurists: “To the extent that the policies and practices of the institutions and organizations studied (WTO, World Bank and the IMF) have fostered a global bounty of considerable proportions, it is only just that the benefits of that bounty be shared equitably. If, on the other hand, these policies have resulted in an exacerbation of poverty, a diminution of standards of livelihood, and a further distortion of existing social and global imbalances, we believe it is only just that there be a mechanism to bring those institutions to account..”

In discussing some of the provisions of the TRIPS agreement in relation to enjoyment of fundamental human rights by people, the two Special Rapporteurs give their “considered view” that the argument for stringent patent protection as essential for promotion of innovation and invention “is one that over-privileges the owners of capital”.

Referring to the ‘considerable contentions’ on the scope and purview of the Articles 7, 8, 30 and 31 of the TRIPS agreement that seek to ameliorate the adverse consequences, the two Special Rapporteurs say that there is a need to strengthen these provisions “ostensibly designed to create the ‘balance’ that has been described as the essence of the regime of law set in place.”

And while the issue remains under review, say the jurists, “it would be helpful for WTO member states to emerge (out of Doha) with a specific, unequivocal undertaking to the effect that no provision in the agreement prohibits members from taking measures to provide access to medicines at affordable prices, promote public health and nutrition.”

“Such an undertaking,” the Special Rapporteurs further recommend, “should give priority to the human rights framework elaborated in this report.”

“Some thought should also be given to allowing member states to establish a sui generis regime of protection in the area of pharmaceuticals given their critical relationship to the full enjoyment of human rights. This would allow for the debate over the issue to extend beyond the narrow context of the incentives/price differentials debate, and ensure that the critical components of a human rights perspective are taken into account, while at the same time moving away from a situation of monopoly rights in such a crucial area of human existence.”

Criticising the various efforts to pressure countries to adopt ‘TRIPS-plus’ measures, the jurists call for discussions and negotiations in multilateral contexts “to pay particular attention to the global imbalances of power, resources and influence that confront so many countries that confront so many of the countries that sit around the table, and thus to adopt the maximum possible flexibility to the implementation of the provisions of the agreement.”

“The obligations within TRIPS and those in various human rights instruments relating to international cooperation and assistance should be given more attention, together with some of the issues like IPRs and indigenous knowledge or the right to food, that have only been dealt with in passing in this report.

“Likewise, the mechanisms of dispute resolution at the WTO that have come to play such a critical role in the evolving framework of trade negotiations should be critically reviewed in order to enhance their sensitivity to the concerns of those that might be left out from the benefits of the system.”

The Special Rapporteurs say that in their final part of the study, they will present proposals regarding guidelines and mechanisms necessary to effectively deal with the phenomenon of globalization and its varied impacts on the full enjoyment of human rights, and the further measures necessary to ensure that the UN human rights regime is strengthened to address the challenges presented. – SUNS4952

The above article first appeared in the South-North Development Monitor (SUNS) of which Chakravarthi Raghavan is the Chief Editor.

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