HRC35: Human Rights Council adopts Right to Health Resolution

The United Nations Human Rights Council (HRC) convened its 35th session from 6 June 2017 to 23 June 2017. During HRC35 (which took place in Room XX of the UN Palais des Nations in Geneva), a group of 21 countries tabled a resolution entitled, “The right of everyone to the enjoyment of the highest attainable standard of physical and mental health in the implementation of the 2030 Agenda for Sustainable Development”. The group of sponsors for the right to health resolution include: Argentina, Belgium, Brazil, Bulgaria, Colombia, Ecuador, Egypt, Haiti, Honduras, Luxembourg, Malta, Mozambique, Paraguay, Peru, Portugal, Romania, Spain, Timor-Leste, Qatar, Thailand, and Turkey. On Friday morning, 23 June 2017, the HRC passed resolution A/HRC/35/L.18/Rev.1 on the right to health.

However, the United States of America disassociated from operative paragraph 9 of the resolution. Sources close to the negotiations have informed KEI that for the United States Trade Representative (USTR), the resolution’s operative language on technology transfer breached the United States’ red lines (Note: USTR did not attend the deliberations of the Human Rights Council but sent instructions from Washington, DC).

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OP9 reads:

9. Calls upon the international community to continue to assist developing countries in promoting the full realization of the right of everyone to the enjoyment of the highest attainable standard of physical and mental health, including through access to medicines, in particular essential medicines, vaccines, diagnostics and medical devices that are affordable, safe, efficacious and of quality; financial and technical support and training of personnel, while recognizing that the primary responsibility for promoting and protecting all human rights rests with States; and recognizes the fundamental relevant importance of the transfer of environmentally sound technologies on favourable terms, including on concessional and preferential terms, as mutually agreed;

In the United States’ explanation of its position, the representative of the United States (Jason Ross Mack) noted,

However, the United States disassociates from the reference to technology transfer in operational paragraph 9. For the United States, this language will have no standing in future negotiations. The United States continues to oppose language that we believe undermines intellectual property rights.

Clearly, for the Trump administration, language on technology transfer (contained in a right to health resolution) was a bridge too far, so much so that the delegation characterized it as undermining intellectual property rights.

The United States also “expressed disappointment” with operative paragraph 13 with its focus on “contributions of the right to health framework to the effective implementation and achievement of the health-related Sustainable Development Goals.” The US felt it was inappropriate for the High Commissioner on Human Rights (Zeid Ra’ad al-Hussein) to endeavor to frame the SDGs in a “right to health framework” asserting that there was no right to health framework language in the SDGs themselves.

Furthermore, the United States took another salvo at the UN Secretary-General’s High Level Panel on Access to Medicines (not referenced in the resolution):

Furthermore, we note that certain recent UN reports have put forward a flawed understanding on issues of healthcare access, particularly with respect to access to medicines, and have generated divisiveness among Member States and the UN. We strongly urge the UN to consider a new approach to analyzing healthcare that seeks to unite all of the parties responsible for delivering critical healthcare solutions to patients around the world. To this end, the UN Secretary-General’s High-Level Panel on Access to Medicines should not be used as a model for this new work.

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Background

An antecedent to the passage of the right to health resolution in HRC35 is the access to medicines
resolution adopted on 1 July 2016 at HRC32. This resolution provided the Council a strong mandate to examine the relationship between international trade agreements, intellectual property rights obligations and their implications on access to medicines – through the prism of human rights.

The text of the adopted resolution on access to medicines contained language calling upon States to apply the principle of the de-linkage of the cost of biomedical R&D from the prices of medicines, vaccines and diagnostics.

Reiterates the call upon States to continue to collaborate, as appropriate, on models and approaches that support the delinkage of the cost of new research and development from the prices of medicines, vaccines and diagnostics for diseases that predominantly affect developing countries, including emerging and neglected tropical diseases, so as to ensure their sustained accessibility, affordability and availability and to ensure access to treatment for all those in need;

The resolution: 1) recognized the need of “viable financing options” to improve the accessibility to health technologies to “diagnose and to treat non-communicable diseases” and 2) reaffirmed the need for development of new medicines and vaccines to address “recent outbreaks of highly infectious pathogens with epidemic potential.”

2017 – HRC35 resolution on the right to health

The proposed right to health 2017 resolution, is a broad resolution which seeks to link the HRC’s work with targets of Sustainable Development Goal 3, including a specific reference to target 3.8 on universal health coverage.

At the floor of HRC35 today, the Brazilian Ambassador, HE Maria Nazareth Farani Azevêdo, introduced draft resolution L.18-Rev.1 on behalf of Mozambique, Paraguay, Portugal, Thailand and Brazil and more than 40 cosponsors.

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Brazil noted:

Health is a fundamental human right, indispensable to the enjoyment of other human rights and necessary for living a life in dignity. Nevertheless, for millions of people throughout the world, especially for women and girls, the full enjoyment of the human right to health still remains an elusive goal.

This year initiative is particular timely as it addresses the realization of the right to health in the implementation of the 2030 Agenda for Sustainable Development. We believe this Council has a positive contribution to give with regard to national, regional and global efforts for the implementation of the sustainable development goals.

The draft resolution underscores, on the one hand, that the implementation of the health-related Sustainable Development Goals contributes to the full realization of human rights and fundamental freedoms for all, in particular the right to health.

On the other hand, it highlights that the full realization of human rights and fundamental freedoms for all, including the right to health, contributes to implementation of the Sustainable Development Goals.

In relation to access to medicines, the preamble of the 2017 right to health resolution recognizes that access to health technologies (including medicines, vaccines, diagnostics and medical devices) is a global challenge.

Regretting the high number of people still without access to affordable, safe, efficacious and quality medicines, vaccines, diagnostics and medical devices, and underscoring that improving such access could save millions of lives every year, and noting with deep concern that, according to the World Health Organization in its World Medicines Situations Report of 2011, at least one third of the world’s population has no regular access to medicines, while recognizing that the lack of access to medicines is a global challenge that affects people not only in developing countries but also in developed countries, even though the disease burden is disproportionately high in developing countries,

In relation to universal health coverage (UHC), the resolution notes:

Recognizing that universal health coverage implies that all people have access without discrimination to nationally determined sets of the needed promotive, preventive, curative, palliative and rehabilitative essential health-care services, including sexual and reproductive health-care services, and essential, safe, affordable, efficacious and quality medicines, vaccines, diagnostics and medical devices, while ensuring that the use of these services does not expose the users to financial hardship, with a special emphasis on the poor, vulnerable and marginalized segments of the population,

Brazil, on behalf of the resolution’s co-sponsors declared:

It also refers to the goal of achieving universal health coverage, by ensuring that all people have access without discrimination to health-care services, including sexual and reproductive health-care services, and essential, safe, affordable, efficacious, and quality medicines.

It calls upon States to respect, protect and fulfill the right to health for everyone, with special attention to groups in vulnerable situations. It also reaffirms the fundamental human right to health of refugees and migrants.

Bearing in mind our commitment to leave no one behind and to reach the furthest behind first, we recognize the particular challenges and multifaceted and intersecting forms of discrimination in the enjoyment of the right to health faced by, inter alia, women, youth, children, indigenous peoples, older persons, persons with disabilities, persons living with HIV and people of African descent.

In relation to unifying the implementation of the SDGs with the progressive realization of the right to health, the resolution states:

Underscoring also that the implementation of the health-related Sustainable Development Goals contributes to the full realization of human rights and fundamental freedoms for all, including the right of everyone to the enjoyment of the highest attainable standard of physical and mental health,

In relation to the implementation of SDG3, in particular Target 3.b, operative paragraph 3 calls for member states to:

Target 3.b: Support the research and development of vaccines and medicines for the communicable and non-communicable diseases that primarily affect developing countries, provide access to affordable essential medicines and vaccines, in accordance with the Doha Declaration on the TRIPS Agreement and Public Health, which affirms the right of developing countries to use to the full the provisions in the Agreement on Trade-Related Aspects of Intellectual Property Rights regarding flexibilities to protect public health, and, in particular, provide access to medicines for all;

Operative paragraph 9 drew the ire of the United States (as mentioned before, the US disassociated itself from operative paragraph 9) with its call for the international community to continue efforts to promote the transfer of technology in relation to health technologies.

9. Calls upon the international community to continue to assist developing countries in promoting the full realization of the right of everyone to the enjoyment of the highest attainable standard of physical and mental health, including through access to medicines, in particular essential medicines, vaccines, diagnostics and medical devices that are affordable, safe, efficacious and of quality; financial and technical support and training of personnel, while recognizing that the primary responsibility for promoting and protecting all human rights rests with States; and recognizes the fundamental relevant importance of the transfer of environmentally sound technologies on favourable terms, including on concessional and preferential terms, as mutually agreed;

Operative paragraph 12 provides the Special Rapporteur on the Right to Health a pro-active mandate to engage with Member States, intergovernmental organizations, civil society, the private sector and other stakeholders, in protection and fulfillment of the 2030 Agenda, including taking part in the annual sessions of the World Health Assembly.

12. Also encourages the Special Rapporteur to continue to advise States, intergovernmental organizations, civil society, the private sector and other stakeholders on effective and sustainable practices to respect, protect and fulfil the right of everyone to the enjoyment of the highest attainable standard of physical and mental health in the implementation of the 2030 Agenda and to follow up and participate in relevant international forums and major events in this regard, including the annual sessions of the World Health Assembly and of the high-level political forum;

As previously mentioned, the United States expressed its disappointment with operative paragraph 13 because it endeavored to frame the health-related SDGs in a right to health framework.

13. Requests the United Nations High Commissioner for Human Rights to prepare a report which presents contributions of the right to health framework to the effective implementation and achievement of the health-related Sustainable Development Goals, identifying best practices, challenges and obstacles thereto, and to submit it to the Human Rights Council at its thirty-eighth session;

The full intervention of the Ambassador of Brazil (on behalf of the right to health resolution’s co-sponsors) can be found below:

Mr. President,

I have the honor to introduce draft resolution L.18-Rev.1 on behalf of Mozambique, Paraguay, Portugal, Thailand and Brazil and more than 40 cosponsors.

Mr. President,

Health is a fundamental human right, indispensable to the enjoyment of other human rights and necessary for living a life in dignity. Nevertheless, for millions of people throughout the world, especially for women and girls, the full enjoyment of the human right to health still remains an elusive goal.

This year initiative is particular timely as it addresses the realization of the right to health in the implementation of the 2030 Agenda for Sustainable Development. We believe this Council has a positive contribution to give with regard to national, regional and global efforts for the implementation of the sustainable development goals.

The draft resolution underscores, on the one hand, that the implementation of the health-related Sustainable Development Goals contributes to the full realization of human rights and fundamental freedoms for all, in particular the right to health.

On the other hand, it highlights that the full realization of human rights and fundamental freedoms for all, including the right to health, contributes to implementation of the Sustainable Development Goals.

It recognizes the need for States to address the social, economic and environmental determinants of health, mindful of the interrelatedness between poverty and health.

It also refers to the goal of achieving universal health coverage, by ensuring that all people have access without discrimination to health-care services, including sexual and reproductive health-care services, and essential, safe, affordable, efficacious, and quality medicines.

It calls upon States to respect, protect and fulfill the right to health for everyone, with special attention to groups in vulnerable situations. It also reaffirms the fundamental human right to health of refugees and migrants.

Bearing in mind our commitment to leave no one behind and to reach the furthest behind first, we recognize the particular challenges and multifaceted and intersecting forms of discrimination in the enjoyment of the right to health faced by, inter alia, women, youth, children, indigenous peoples, older persons, persons with disabilities, persons living with HIV and people of African descent.

Mr. President,

Guided by a human rights perspective, our draft resolution acknowledges the importance of promoting effective, full and meaningful participation of all, in particular those in vulnerable situation, in the design, implementation and monitoring of health policies. In the monitoring process, we encourage States to use high-quality, timely, reliable and disaggregated data, while respecting human rights principles, such as self-identification and privacy.

We also encourage the promotion of human rights education and training for health workers, with special focus on non-discrimination, confidentiality and privacy.

Finally, the draft recognizes the importance of international cooperation, and calls upon States to continue to provide assistance for the promotion of the right to health, including through access to medicine, vaccines, diagnostics and medical devices and through training of health personnel.

As an operative outcome, we request the High Commissioner to prepare a report which presents contributions of the right to health framework to the effective implementation of the health-related SDGs, identifying best practices, challenges and obstacles.

We encourage Member States and all relevant stakeholders, including United Nations bodies, agencies, funds and programmes, especially the World Health Organization, treaty bodies, special procedure mandate holders, national human rights institutions and civil society, to engage in the process of consultation and to contribute to the report of the High Commissioner.

Mr. President,

We are thankful for the large support and engagement of delegations during the informal consultations on draft resolution L.18. Their valuable and constructive contributions have certainly helped us to improve the document and to bring to this Council attention a comprehensive draft resolution on the right to health in the implementation of the 2030 Agenda.

We would also like to thank all those who extended their cosponsorship to this draft resolution. We are confident that this constructive approach will allow us to adopt draft resolution L.18 by consensus.

Thank you, Mr. President

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