Access to Drugs
Rights and Humanity and the Secretariat of the United Nations Conference on Trade and Development (UNCTAD) organised a workshop entitled Trade in Pharmaceuticals and Human Rights on 28 November, 2000, at the UN, Geneva.
This brought together senior UN staff from a number of agencies to analyse the perceived conflict between the intellectual property rights of pharmaceutical companies, on the one hand, and the right of individuals to have access to essential drugs, on the other.
By 2000, a major human rights concern was the unequal access to anti-retroviral drugs within and between countries. Lack of access to anti-retroviral drugs and other treatments denies people their right to the highest attainable standard of health. Rights and Humanity began to tackle this issue.
Bringing together UNCTAD, UNAIDS, WIPO, WTO and OHCHR
The Workshop brought together senior staff from UNCTAD, UNAIDS, World Intellectual Property Organisation (WIPO), World Trade Organisation (WTO), Office of the High Commissioner for Human Rights (OHCHR), the International Federation of Pharmaceutical Manufacturers Association, an ethics professor and concerned NGOs. The participants analysed the issues in the light of the right of all individuals to the highest attainable standard of physical and mental health.
The Workshop considered how a reference to human rights law could help mediate the apparent conflict between the intellectual property rights of pharmaceutical companies in the context of the WTO’s Trade Related Intellectual Property Agreement (TRIPS) and the desire of developing countries to manufacture cheap essential generic drugs in order to meet the needs of public health. We also considered access to anti-retroviral drugs by people with HIV/AIDS.
Between 1996 – 2002, anti-retroviral treatment for AIDS had considerably reduced HIV death rates in high-income countries.
Yet in 2002, despite decreases in prices, it was estimated by the UN that in developing countries fewer than 5% of those requiring these drugs had access to them. Drugs, like Nevirapine, could help prevent HIV transmission from mother to child, but were rarely available to people living with HIV in poor communities.
The TRIPS Agreement, adopted by the WTO in 1995, had tightened intellectual property rights and introduced an enforceable global standard within the WTO process. It required WTO Members to provide protection for a minimum term of 20 years from the filing date of a patent application for any invention. These included a pharmaceutical product or process.
Whilst in the past, life forms - plants and animals - had been excluded from patents in many countries, the TRIPS agreement required all WTO members to permit patents on micro-organisms and microbiological and non-biological processes. By extending patent protection from process patents to product patents, there was a risk that the TRIPS agreement reduced the possibilities for local production of cheaper versions of important life-saving drugs, such as those required for cancer and HIV/AIDS.
“Bio-prospecting” had mushroomed; scientists were “reinventing” and patenting products and processes that communities had held for centuries. There were also concerns that the TRIPS agreement disproportionately benefited technologically advanced countries and that it impeded access to essential drugs.
Case study: South Africa’s manufacture of generic AIDS drugs had been contested by the United States within the context of WTO’s TRIPS Agreement. In March of 2001, South Africa was sued by 41 pharmaceutical companies for its Medicines Act, which allowed the import and generic production of cheap AIDS drugs. The case was later dropped after protests around the world.
The broad-based discourse at the Workshop enhanced understanding of the relationship between international trade, human rights and economics.
By prompting dialogue on common concerns and objectives, the Workshop helped to pave the way for initiatives to ensure an effective response to the critical issue of access to drugs.
Although Rights and Humanity was not itself involved in subsequent negotiations between the UN and pharmaceutical companies, in 2001, six of the world's largest pharmaceutical companies agreed to make HIV-related drugs more widely available to developing countries.