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UN Rapporteur for the Right to Health asked to intervene in the TPP negotiation

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The following groups and individuals have written to Anand Grover, the Special Rapporteur for the United Nations on the right of everyone to the enjoyment of the highest attainable standard of health, to lodge a complaint about the Trans Pacific Partnership (TPP). The TPP is a regional free trade agreement being negotiated by the governments of Brunei, Chile, New Zealand, Singapore, Australia, Malaysia, Peru, Vietnam and the United States.

The basis for the appeal is described in the attached memorandum [1]

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The complaint was filed by the following organizations and individuals:

A press release about the filing follows:

UN Special Raporteur on right to health asked to intervene in TPP Trade negotiation

March 22, 2011

FMI (See contact details below)

March 21, 2011. Eleven public interest advocacy groups and three law professors have submitted a petition to Anand Grover, the Special Rapporteur for the United Nations on the right of everyone to the enjoyment of the highest attainable standard of health. A copy of the petition is available on the Internet here: https://www.keionline.org/node/1099

The Special Rapporteur has been asked to intervene in a new regional trade agreement named the Trans-Pacific Partnership (TPP) Agreement. In particular, the parties filing the complaint charge that the negotiations on intellectual property norms, in terms of process and substance, threaten and violate the right of hundreds of millions of persons to the enjoyment of the highest attainable standard of health.

Parties to the negotiation now include the governments of Brunei, Chile, New Zealand, Singapore, Australia, Malaysia, Peru, Vietnam and the United States. However, it is expected that attempts will be made to extend the norms to a much wider group of trading partners. Moreover, given economies of scale, any agreement that shrinks the market for legal generic medicines will have an adverse impact on consumers everywhere.

The TPP agreement, is being negotiated behind a veil of secrecy, underming the ability for the persons who will be affected by the norms to participate effectively in efforts to influence the outcome of the negotiations. The lack of access to information is not universal, however, as some corporate interests have special access to information about the negotiations that is not available to the general public.

A recent leak of a copy of the United States government’s proposal for a chapter on intellectual property rights has revealed the negotiation is addressing the most sensitive issues in the area of access to medicine, including such items as the standards for granting patents on medical inventions, patent extensions, the exclusive rights in regulatory test data, restrictions on the “in-transit” shipments of legitimate generic drugs, and other topics.

The Commission on Human Rights resolution 2002/31 provides the Special Rapporteur for the right to health the mandate to issue an urgent appeal or allegation letter to Governments based on reliable information on alleged violations of the right to health. The Special Rapporteur can write to the Government(s) concerned, “either together with other special procedure mandates or independently, inviting comment on the allegation(s), seeking clarifications, reminding a Government of its obligations under international law in relation to the right to health, and requesting information, where relevant, on steps being taken by the authorities to redress the situation in question.”

Communications from the Special Rapporteur to the concerned Government(s), either in the form of an Urgent appeal or an allegation letter are confidential at an initial stage. Once the summary of letters and the response of the of the concerned Government(s) are enclosed into addendum 1 of the Human Rights Council’s annual report, then this information becomes public.

The organizations and individuals signing the petition include:

The following are quotes from some of the persons signing the petition, listed in alphabetical order.

Allen Black, Adjunct Professor of Law, University of Pittsburgh “It is the duty of the Government to protect health and human safety. However, the currently proposed trade agreement simply ignores health and human safety. Worse if implemented, it will actually deny life saving medicines to those most in need. It is unconscionable that the U.S. would ever promote such an agreement because it sacrifices lives without any benefit other than increased revenues for U.S. corporations.”

Alberto Cerda Silva, Professor in Law, University of Chile Law School “The TPP compromises public health, particularly in developing countries, by requiring the adoption of measures that create serious obstacles for access to medicines, such as restrictions on the shipment of generic goods in transit to developing countries, patents for new uses of older drugs, and the linkage of patents to drug registration in markets where regulators are not well equipped to evaluate patent claims. The TPP draft goes beyond any Free Trade Agreement in force; in fact, countries like Australia, Chile, New Zealand and Peru would be required to re-update its domestic law to comply with the obligations imposed by the American draft of the TPP.”

Edward Low, Positive Malaysian Treatment Access & Advocacy Group (MTAAG+) “HIV patients in Malaysia used to be on Duovir, a generic antiretroviral drug imported from India under a compulsory license. However, the government’s switchback to the branded Combivir increased the government’s treatment cost 6 fold and impeded the antiretroviral roll out plan. Thus, we have first hand knowledge of the curtailing of TRIPS flexibilities as it is a matter of life and death for the HIV community. The TPP aims to impose patent linkage to drug registration, data exclusivity and undermine Malaysia’s sovereign right to determine patentability criteria. The net result of the TPP will result in more unaffordable drugs just waiting for the poor at the grave.”

James Love, Director, Knowledge Ecology International.. “The text the United States has already tabled in the TPP negotiation is an aggressive attack on the modest flexibilities that developing countries now have to protect the poor. But the many placeholders suggest the worst is yet to come. USTR is telling groups that it plans to abandon the May 10, 2007 compromise on access to medicine – an agreement between Democrats in the House of Representatives and the George W. Bush White House. The Obama Administration is showing that it is no friend to poor people living in developing countries. The Obama Administration is also trying to lock into a global agreement the most anti-consumer aspects of US law, making it much more difficult or impossible to introduce needed reforms to protect US consumers. The notion that governments have to act to control health care costs is undermined by the White House policy proposals in the TPP.”

Krista Cox, Staff Attorney, Knowledge Ecology International. “The manner in which the Trans Pacific Partnership has been negotiated erodes the human rights to access to information and participation in public affairs. The secrecy of these negotiations effectively works against the interests of marginalized groups, such as women children, and those living in extreme poverty, who will be greatly affected by enactment of the TPP. The TPP violates human rights, particularly the right to health. While States have a positive obligation to protect this right, in part by promoting better access to medicines and medical treatment, the United States has done the opposite by placing economic policy and intellectual property interests above the basic human rights to life and health.”

Roberto Lopez, Acción Internacional por la Salud (HAI) Peru. “The TPP would enact TRIPS plus norms that would compromise Peruvians’ right to health. The prohibition on pre-grant opposition and the proposed granting of new use patents undermines Peruvian policy space in taking measures to protect public health and promote access to medicines.”

Thiru Balasubramaniam, Geneva Representative, Knowledge Ecology International. “The intellectual property rights chapter as proposed by the United States imposes a one-size fits all straightjacket which vitiates the discretion afforded to WTO members in the TRIPS Agreement, and re-affirmed in the Doha Declaration on the TRIPS Agreement and Public Health, the WHO Global Strategy on Public Health, Innovation and Intellectual Property. The TPP text would prohibit pre-grant opposition procedures for patents while mandating the granting of new uses for older drugs for developing countries including Peru, Malaysia and Vietnam. As noted in the March 15, 2011 UNAIDS/WHO/UNDP Policy brief on Using TRIPS flexibilities to improve access to HIV treatment: ‘The decision on whether a new form of a known substance can be patented has major implications for many drugs used in HIV care, now and in the future.’”

For more information, please contact:

Krista Cox, krista.cox@keionline.org, +1.202.332.2670

Thiru Balasubramaniam, thiru@keionline.org, +41.76.508.0997

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