*(The author thanks Vitor Ido for his extensive notes of the 1st round of informal consultations held on 20 June 2018).
On Thursday, 28 June 2018, the delegations of Brazil, Colombia, Mozambique, Portugal, and Thailand submitted a draft resolution on “Human rights in the context of HIV and AIDS” to the 38th session of the Human Rights Council. The text of the final resolution can be found here.
The Core Group of Brazil, Colombia, Mozambique, Portugal, and Thailand proposed the following language in relation to access to medicines and the use of WTO TRIPS flexibilities:
Stressing the need for 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 respecting, protecting and fulfilling 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,
Reaffirming the right to use, to the fullest extent, the provisions contained in the World Trade Organization Agreement on Trade-Related Aspects of Intellectual Property Rights (TRIPS Agreement), which provides flexibilities for the protection of public health and promotes access to medicines for all, in particular for developing countries, and the Doha Declaration on the TRIPS Agreement and Public Health, which recognizes that intellectual property protection is important for the development of new medicines and also recognizes the concerns about its effects on prices,
This resolution has 65 co-sponsors; this resolution will be adopted in plenary on Thursday, 5 July 2018. The co-sponsors include:
1) Brazil
2) Colombia
3) Mozambique
4) Portugal
5) Thailand
6) Angola
7) Uruguay
8) Chile
9) Costa Rica
10) Mexico
11) Switzerland
12) Peru
13) Argentina
14) Andorra
15) Turkey
16) San Marino
17) Montenegro
18) Bosnia and Herzogovina
19) Honduras
20) Ecuador
21) Macedonia
22) Poland
23) Iceland
24) Malta
25) Estonia
26) Luxembourg
27) Sweden
28) Denmark
29) Ireland
30) Georgia
31) Greece
32) Paraguay
33) Romania
34) Finland
35) Netherlands
36) Belgium
37) Croatia
38) Slovakia
39) Norway
40) Cyprus
41) Azerbaijan
42) Madagascar
43) Bulgaria
44) Italy
45) Malawi
46) Botswana
47) El Salvador
48) Australia
49) United Kingdom of Great Britain and Northern Ireland
50) Slovenia
51) Panama
52) Germany
53) France
54) Lithuania
55) Haiti
56) Benin
57) Hungary
58) Czech Republic
59) Austria
60) Japan
61) Latvia
62) New Zealand
63) Timor Leste
64) Philippines
65) Spain
Incidentally, the United States of America withdrew from the Human Rights Council on 19 June 2018.
The Core Group held a series of three informals (20 June 2018, 22 June 2018, and 26 June 2018) to read through the text.
In the operative section, the Core Group proposed the following language which underscored the principle of non-discrimination with respect to access to “safe, effective and affordable medicines, diagnosis and treatment for all”.
9. Reaffirms that access to safe, effective and affordable medicines, diagnosis and treatment for all, without discrimination, in the context of epidemics such as HIV and AIDS is fundamental to the full realization of the right of everyone to enjoy the highest attainable standard of physical and mental health;
The resolution contains the following asks of the United Nations High Commissioner for Human Rights:
23. Requests the High Commissioner to organize a consultation, in the first semester of 2019, in coordination with UNAIDS, lasting one and a half days, to discuss all relevant issues and challenges pertaining to the respect, protection and fulfilment of human rights in the context of HIV response, with a focus on regional and subregional strategies and best practices;
24. Also requests the High Commissioner to invite to the consultation Member States and all other stakeholders, including relevant United Nations bodies, agencies, funds and programmes, the special procedures, in particular the Special Rapporteur on the right of everyone to the enjoyment of the highest attainable standard of physical and mental health, the treaty bodies, regional human rights and health organizations and bodies, national human rights institutions and civil society, including persons living with, presumed to be living with, at risk of, and affected by HIV;
25. Further requests the High Commissioner to prepare a report on the outcome of the consultation, to be presented to the Human Rights Council at its forty-first session, in which he identifies regional and subregional strategies and best practices to respond to the HIV epidemic and to respect, protect and fulfil the rights of people living with, presumed to be living with, at risk of, or affected by HIV.
The first round of informals took place on Wednesday, 20 June 2018. Italy, Brazil, Mexico, Peru, Egypt, Australia, Germany, Ireland, Switzerland, Slovenia, Botswana, Sweden, Denmark, Finland, United Kingdom, New Zealand, Uruguay, Argentina, Russian Federation, Indonesia, France, South Africa, Singapore, Venezuela, Norway, and Spain took the floor during the meeting.
At the informal, Switzerland proposed the language of WHA70.12 (Cancer prevention and control in the context of an integrated approach) as an alternative to language proposed by the Core Group which acknowledged the the concerns about the effects of intellectual property protection on the prices of medicines.
Reaffirming also the rights of Member States to the full use of the flexibilities in the WTO Agreement on Trade-related Aspects of the Intellectual Property Rights (TRIPS) to increase access to affordable, safe, effective and quality medicines, noting that, inter alia, intellectual property rights are an important incentive in the development of new health products. (Source: WHA70.12)
The original language proposed by the Core Group (which is currently contained in A/HRC/38/L.12):
Reaffirming the right to use, to the fullest extent, the provisions contained in the World Trade Organization Agreement on Trade-Related Aspects of Intellectual Property Rights (TRIPS Agreement), which provides flexibilities for the protection of public health and promotes access to medicines for all, in particular for developing countries, and the Doha Declaration on the TRIPS Agreement and Public Health, which recognizes that intellectual property protection is important for the development of new medicines and also recognizes the concerns about its effects on prices,
During the first round of informal negotiations, Switzerland stressed that it “would be more comfortable if we could stick to agreed language of WHA in this context”, saying that the language proposed by the Core Group did “not reflect the comprehensive approach of our national policies.” During the informals, Egypt expressed its support for the text as drafted, and Spain expressed its support for the Core Group’s original language noting that Spain was “really interested in defending the human rights of people affected by HIV/AIDS, and to make treatment available. Therefore, this kind of language is important, so we would like to stick to it.” As it stands, the Core Group’s original text stands. (Source: Vitor Ito’s notes of the First Round of Informals, 20 June 2018).