UN Task Force Ignores Member States to Globally Govern Access to Medicines
ENVIRONMENT & HEALTH, INTELLECTUAL PROPERTY, HUMAN RIGHTS
Wednesday, February 3, 2010
In a stunning behind-the-scenes rejection of actions taken by the member states of the World Health Assembly (“WHA”), the governing body of the World Health Organization (“WHO”), a United Nations Human Rights Council (“HRC”) task force used a 2009 technical mission to the WHO to discuss how to implement a WHO global strategy on public health in a manner that promotes a human right to health that member states specifically deleted from the final text of the global strategy. Apparently, the HRC task force members believe that their pursuit of a right to health that promotes access to affordable essential drugs in developing countries justifies undermining the legitimacy of outcomes achieved by member states in the course of negotiations held during official meetings of an international organization.
The goal of United Nations Millennium Development Goal 8, Target E ("MDG Target 8E"), is, in cooperation with pharmaceutical companies, to provide access to affordable essential medicines in developing countries. To promote MDG Target 8E, the HRC Working Group on the Right to Development's High Level Task Force on the implementation of the right to development (the "Task Force") undertook a technical mission comprised of meetings with concerned officials at the WHO, the Intergovernmental Working Group on Public Health, Innovation and Intellectual Property ("IGWG"), the Special Programme for Research and Training in Tropical Diseases ("TDR"), and the Global Fund to Fight AIDS, Tuberculosis and Malaria ("TFG"). The purpose of the technical mission was to learn more about the work of these agencies in promoting access to affordable essential medicines in developing countries. Of specific concern to the Task Force was determining the degree to which these agencies were framing the pursuit of access to medicines as a human rights issue, the Task Force being of the opinion that, absent enforceable human rights obligations, MDG Target 8E will not be achieved.
During the technical mission, the members of the Task Force and representatives from the WHO Department of Ethics, Trade, Health and Human Rights Law (the "Department") focused on the provisions of the Global strategy on public health, innovation and intellectual property adopted on May 24, 2008 at the 61st session of the WHA (the "GSPA"). The GSPA consists of stated aims, principles, and elements. In the GSPA, paragraphs 17 and 18 each contain the word "(Deleted)," evidencing that the following two principles, contained and "bracketed" in earlier drafts of the GSPA, had been rejected by the member states:
"17. [The right of everyone to the enjoyment of the highest attainable standard of physical and mental health is recognized as a fundamental human right in the international Human Rights instruments, in particular, in the International Covenant on Economic, Social and Cultural Rights Article 12.1.]
18. [The objectives of public health and the interests of trade should be appropriately balanced and coordinated.] or [The right to health takes precedence over commercial interests.]"
In its report on the outcomes from the technical mission (the "Report"), the Task Force lamented that "It was clear from the discussion that, with regard to the GSPA, there was no longer an opportunity to influence the process, which is complete." Yet, in spite of the action taken by WHA member states to exclude the right to the highest attainable standard of health as a guiding principle of the GSPA, the Report explains that:
"The concern of the task force about coherence in integrating a human rights framework into the policies and programs of WHO was shared and the implementation of the GSPA seemed a good opportunity to link human rights to public health, innovation and intellectual property, which involves WHO, WTO and WIPO."
The Report proceeds to explain that the "WHO should take the lead in coordination in this sphere of cross-cutting issues." Thus, the Task Force concludes that, contrary to the expressed intentions of the WHA member states, a human rights approach to global public health should govern the WHO Secretariat's implementation of the GSPA.
This blatant rejection of the wishes of the WHA member states continued in the discussions held during the technical mission between the Task Force members and IGWG representatives. In the Report, the Task Force recommends that a workshop be held among the IGWG Secretariat, the Department, the Task Force, and pharmaceutical companies to "examine prospects for patent pools, technology transfer and pricing, using the GSPA as a tool to operationalize and mainstream the right to development." (emphasis added). The Report further noted that:
"The IGWG Secretariat pointed out that the GSPA could not be amended; however, there is leeway with regard to the interpretation and implementation to introduce the right to development principles into the operation of the GSPA." (emphasis added)."
The Report indicates that the roadmap for using a human rights approach to implement the GSPA (contrary to the intentions of the WHA member states) is contained in the March 2009 report of an independent consultant commissioned by the Task Force titled "Desk Review of the Intergovernmental Working Group on Public Health, Innovation and Intellectual Property from a Right to Development Perspective" (the "Desk Review"). In Annex II of the Desk Review titled "Revising the Plan of Action According to Right to Development Criteria," the author sets forth proposed revisions to several elements contained in the GSPA to incorporate the right to development.
In addition to incorporating the right to the highest attainable standard of health in regards to GSPA Element 5, dealing with the application and management of intellectual property, Annex II contains the following proposed new elements that, in the view of the author and the Task Force, should have been included in the GSPA:
"1. New element in Element 6 - Delivery and Access - Ensure that access to essential medicines or technologies as part of the fulfillment of the right to health, is recognized in the constitution or national legislation, paying particular attention to the needs of poor and disadvantaged individuals, communities and populations, and to gender-related issues.
2. New element in Element 6 - Delivery and Access - Ensure that access to essential medicines or technologies as part of the fulfillment of the right to health, is recognized in a state's international development policies related to public health, innovation and intellectual property rights, paying particular attention to the needs of poor and disadvantaged individuals, communities and populations, and to gender-related issues.
3. New element - Require pharmaceutical companies to integrate human rights, including the right to the highest attainable standard of health, into their strategies, policies, programs, projects and activities."
In closing, the Report calls for the convening of a one-day meeting on MDG Target 8E on access to essential medicines, with the participation of key members of the HRC Working Group on the Right to Development and the Task Force; representatives from the Office of the High Commissioner for Human Rights; the IGWG Secretariat and other stakeholders in the GSPA; TDR and TGF representatives as it concerns intellectual property and technology transfers; the UN Special Rapporteur on the right of everyone to the enjoyment of the highest standard of physical and mental health; and the Special Representative of the UN Secretary-General on the issue of human rights and transnational corporations and other business enterprises; as well as representatives of pharmaceutical companies.
In the final sentence of the Report, setting forth the purpose of the one-day meeting, the Task Force abandons any notion of respecting the intention of WHA member states that the ambiguous and political right to health not serve as a guiding principle for the implementation of the GSPA:
"The purpose of the meeting would be to explore the synergies between these partnerships from the right to development perspective and the potential for mutually reinforcing approaches to the human rights content of the GSPA and to realizing the right to health, including access to essential medicines in developing countries."
Thus, UN ambitions for the global governance of development, specifically health and access to medicines, proceed without due regard for the clear directives of its member states as adopted in official meetings of the international organizations at which, supposedly, such issues are to be considered and decided.
Jim Kelly is the President of Solidarity Center for Law and Justice, P.C., a public interest civil and human rights law firm based in Atlanta, Georgia. The opinions expressed herein are his own.
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