Human Rights Groups Challenge USTR Special 301

July 20, 2010


Sean Flynn, PIJIP

Matt Kavanagh, Health GAP

On Tuesday July 20, a group of public interest organizations, represented by Sean Flynn, Associate Director of PIJIP, filed a complaint alleging that the Obama administration's trade policy reduces access to medicines in low and middle income nations, and therefore violates international human rights obligations. The complaint was filed with the Special Rapporteur on the Right to Health, Anand Grover.

A press conference was held to release the complaint at the Media Center at the International AIDS Conference 2010, Vienna, at 12:00 noon Vienna time.

Sean Flynn explained:

"Since its inception in 1988, the United States Trade Representative's 'Special 301' program for threatening sanctions against foreign countries for their intellectual property laws has been used to promote policies restricting access to affordable medications around the world. President-elect Obama released a platform promising to 'break the stranglehold that a few big drug and insurance companies have on these life-saving drugs' and pledged support for 'the rights of sovereign nations to access quality-assured, low-cost generic medication to meet their pressing public health needs.' The 2009 and 2010 Special 301 reports, however, indicate that the Obama Administration has not yet implemented this pledge. The Obama Administration continues using Special 301 to pressure developing countries to adopt escalating intellectual property rules that are not required by any international agreement and that will negatively impact access to medicines. The complaint filed today demonstrates that the continuation of Special 301 attacks on affordable medicine policies violate international human rights obligations in addition to the Obama administration's own policies."

The lead complainant in the submission (known as an allegation letter) is Health GAP (Global Access Project), an organization of U.S.-based AIDS and human rights activists, people living with HIV/AIDS, public health experts, fair trade advocates and concerned individuals who campaign against policies that deny treatment for HIV. Dozens of other organizations representing people with HIV/AIDS are also represented in the complaint.

In summary, the complaint alleges:

  • Promoting access to affordable medicines for the poor is a widely recognized human rights duty, emanating from the recognition of civil and political as well as social and economic rights that bind the United States.
  • States are bound to promote and protect the rights to life and health not only of their own citizens, but also of the citizens of other countries affected by their foreign policy, trade and assistance programs.
  • Intellectual property is a prime determinate of access to needed medicines because it is a form of social regulation that, by design, raises prices through rights to exclude competitors - in effect monopoly rights.
  • In recognition of the foreseeable impact of monopolies on needed medicines, particularly in developing countries, the globalization of intellectual property for pharmaceutical products through the World Trade Organization Agreement on Trade Related Aspects of Intellectual Property Rights (TRIPS) included a full range of permissible limitations and exceptions. These include rights to use compulsory licenses to break patent monopolies, rights to define criteria for patentability to limit the grant of patents for products that are not sufficiently innovative, rights to allow generic firms to use the registration data of originator firms to speed regulatory approval, and the lack of any duty to "link" registration and patent review processes in ways that can slow generic approval.
  • UN human rights officials and bodies have repeatedly found that the globalization of intellectual property rights can only be squared with human rights if countries are permitted and encouraged to utilize the full scope of intellectual property exceptions and limitations provided for in the TRIPS agreement to promote access to medicines.
  • This body of human rights law was summarized by Special Rapporteur Paul Hunt as meaning that "that no rich State should encourage a developing country to accept intellectual property standards that do not take into account the safeguards and flexibilities included under the TRIPS Agreement. In other words, developed States should not encourage a developing country to accept ‘TRIPS-plus' standards."
  • The United States continues to breach these international human rights obligations by using its 'Special 301' program to threaten trade sanctions against countries that do not agree to increase intellectual property protections beyond those required by the WTO TRIPS agreement. The 2009 and 2010 Special 301 Reports issued in the Obama Administration press developing countries to limit compulsory licenses for needed medicines (e.g. Thailand, Ecuador), restrict freedom to define the scope of patentability (e.g. in India, Brazil and Philippines), implement "linkage" between drug registration and assertions of patent protection (e.g. Chile, Dominican Republic, Pakistan, Columbia), and adopt U.S. or EU-style "data exclusivity" rules that create drug monopolies independent of patents (in dozens of countries).       

A 2009 report by the Special Rapporteur on the Right to Health, Anand Grover, criticized all such policies as being violations of human rights.

The complaint asks:

"The Special Rapporteur for the Right to Health should call on the U.S. halt its use of the Special 301 program and other elements of its foreign policy to encourage and coerce developing counties to adopt intellectual property norms that restrict access to medicines, including access to antiretroviral medicines for people living with HIV/AIDS. The Special Rapporteur should encourage the U.S. to use its trade and foreign assistance programs to promote full use of TRIPS flexibilities and to otherwise revise its foreign policies to promote access to medicines. The Special Rapporteur should call on the U.S. to provide a procedure for the appeal of human rights issues within the Special 301 report, to reverse its unlawful unilateral threats of trade sanctions via Special 301, and to reconsider and reverse the many decisions it has made that violate the right to health of poor people around the world." 


Anand Grover, the current UN Special Rapporteur on right to health, was appointed in 2008 by the United Nations Human Rights Council. He has been a well-known long-time advocate on HIV and human rights. Mr. Grover argued several cases in the Indian Supreme Court relating to the rights of people living with HIV, including rights of sex workers and the first HIV case in India relating to employment. Mr. Grover also served with the UNAIDS Reference Group on HIV and Human Rights.


The US Trade Act requires USTR prepare an annual report to Congress that lists countries which "deny adequate or effective" protection of intellectual property rights, or which discriminate against US companies that rely on intellectual property protection.  In preparing the report, USTR must solicit input from "interested persons."  In the past, most input has come from companies or industry groups representing intellectual property owners, resulting in annual "Special 301 Reports" that largely reflect the industries' desire for ever-higher levels of intellectual property protection. IN 2010, USTR held its first ever open hearing as part of its process for preparing the report.  This led to far greater participation by health, consumer, and digital right groups - hundreds of which submitted written comments to USTR in February.  All of the comments received by USTR for the 2010 Special 301 review are available online at (When prompted by the site to enter a Keyword, enter "ustr-2010-0003" to view the comments.) 




There will be two related events at the International AIDS Conference in Vienna:

July 19, NOON, AIDS 2010 Vienna Media Center 

Release of Complaint to Special Rapporteur on the Right to Health on USTR Special 301 and Access to Medicine

  • Matthew Kavanagh, Health GAP (Global Access Project)
  • Supatra Nakapew, Foundation for AIDS Rights (FAR) and Chair of the Thai NGOs Coalition on AIDS (TNCA)
  • Loon Gangte, Deli Network of People Living with HIV (DNP+) and International Treatment Preparedness Coalition
  • Sean Flynn, American University, Washington College of Law, Program on Information Justice and Intellectual Property, Counsel

Thursday July 22, Noon, AIDS 2010 Vienna Human rights networking session

Panel Discussion, Human Rights and Access to Medicine

  • Anand Grover, the Special Rapporteur on the Right to Health
  • Jonathan Berger from Section 27 (formerly AIDS Law Project, South Africa)
  • Matt Kavanagh from Health GAP\
  • Sean Flynn, American University, Program on Information Justice and Intellectual Property

Photo of pills (cc) Darren Hester.


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