Access to Meds and U.S. Human Rights Review

On November 26, 2010, the United Nations Human Rights Council will hold a hearing to examine the United States’ compliance with its legally-binding obligations under its signed and ratified Human Rights treaties as well as the UN Charter and the Universal Declaration of Human Rights. The process of this examination is called, “Universal Periodic Review” or “UPR”, in which the human rights compliance of every UN member state is reviewed every four years. This November will be the United States’ first review since the process’ creation.

This is a forum where access to medicines issues may be raised, especially with respect to U.S. pressure on developing countries to implement TRIPS-plus rules on pharmaceuticals.

In repeated resolutions, reports and announcements, UN human rights officials have explained that heightened intellectual property protection in developing countries can impede access to affordable medicines and thereby limit the internationally recognized right to health. See http://www.wcl.american.edu/pijip/go/additionalmaterials

The Special Rapporteur for the Right to Health recently wrote:  “Developed States also have a responsibility to take steps towards the full realization of the right to health through international assistance and cooperation.” Report of the Special Rapporteur on the Right of Everyone to the Enjoyment of the Highest Attainable Standard of Physical and Mental Health, U.N. doc. A/HRC/11/12 (Mar. 31, 2009). “From a right to health perspective, developing countries and LDCs should be enabled to use TRIPS flexibilities” to the full. Id. When the UN reviewed the compliance of the TRIPS agreement with human rights concerns, it concluded that the agreement could only be squared with human rights because of the existence of the flexibilities in the agreement, as affirmed by the Doha Declaration.

Past US trade policy, including as expressed in the 2009 Special 301 report published by the Obama Administration, has largely ignored these international human rights duties. Special 301 and other US trade pressure has attempted to limit each TRIPS flexibility that exists to promote access to medicines.  Through its “Special 301” trade pressure program, and through trade agreements and other means, the USTR has pressed countries to limit grounds for compulsory licenses, restrict freedom to define the scope of patentability, prohibit parallel importation, extend patents beyond 20 years, implement “linkage” between drug registration and assertions of patent protection, adopt U.S. or EU-style “data exclusivity” rules, and do away with evidence-based formularies and other price and competition restrictions on pharmaceutical monopoly power. The UPR process could be used to call upon the U.S. to justify these actions under human rights norms that bind it to promote rights to life and health abroad.

As part of the UPR process, the U.S. government is required to conduct consultations with stakeholders, including non-governmental organizations, civil society and those facing rights violations, to provide input regarding human rights in the United States. UNHCR also has mechanisms to facilitate input by civil society. These processes could be used to request that the US justify its trade and pharmaceuticals policies with himan rights duties.

Quick UPR info is here: http://www.ohchr.org/EN/HRBodies/UPR/Pages/BasicFacts.aspx and http://www.ohchr.org/EN/HRBODIES/UPR/Pages/UPRMain.aspx

Submissions to UNHCR are due by April 19, 2010 by 6 AM EST to uprsubmissions@ohchr.org.

The State Dept. has put up a website about the process and UPR: http://www.state.gov/g/drl/upr/ 

The next meeting in Washington D.C. is scheduled for April 22-23, 2010, at the Federalist Society. Location: TBD  The Department of State is accepting feedback until June 15th. 

Information about how to be accredited for the UNHCR process it at http://www.ohchr.org/EN/HRBODIES/UPR/Pages/NgosNhris.aspx

Sean Flynn
Associate Director
Program on Information Justice and Intellectual Property
American University Washington College of Law
202 274 4157
www.pijip.org

 

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