Transparency and delinkage embedded into the Human Rights Council’s agenda on access to medicines

On Thursday, 11 July 2019, the 41st session of the Human Rights Council (HRC) adopted, without a vote, resolution A/HRC/41/L.13, “Access to medicines and vaccines in the context of the right of the highest attainable standard of physical and mental health.” The Core Group, which includes Brazil, China, Egypt, India, Indonesia, Senegal, South Africa and Thailand, submitted this resolution on 4 July 2019. For an account of the informals, please see: Delinkage, TRIPS flexibilities, and alternative incentive frameworks emerge as flashpoints during Human Rights Council’s discussions on Access to Medicines and Vaccines.

The resolution requests the High Commissioner (Michelle Bachelet):

    To convene, before the forty-sixth session of the Human Rights Council, a full-day intersessional seminar on good practices, key challenges and new developments relevant to access to medicines and vaccines as one of the fundamental elements of the right of everyone to the enjoyment of the highest attainable standard of physical and mental health, in coordination with the World Health Organization;

    To invite States, relevant United Nations bodies, agencies, funds and programmes, treaty bodies, special procedure mandate holders, national human rights institutions, civil society the private sector and other relevant stakeholders, with a view to ensuring their participation in the seminar; and

The forty-five co-sponsors of this resolution include: Algeria*, Bahrain, Bangladesh, Bolivia*, Brazil, Chile, China, Colombia*, Ecuador*, Egypt, Eswatini*, Ethiopia*, Fiji, Haiti*, Honduras*, India, Indonesia*, Iran*, Iraq, Italy, Lebanon*, Libya*, Kuwait*, Malawi*, Maldives*, Mongolia*, Mozambique*, Nepal, Peru, Panama*, Philippines, Portugal*, Qatar, Saudi Arabia, Senegal, Spain, South Africa, Sri Lanka*, Thailand*, Tunisia, Turkey*, United Arab Emirates*, Uruguay, Viet Nam*, and the State of Palestine* (* indicates that the state is not a member of the Human Rights Council).

In relation to R&D incentives not predicated upon temporary monopolies, the resolution stated:

    5. 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;

    8. Encourages engagement between Governments, international organizations, non-governmental organizations, academic and research institutions, philanthropic foundations and the private sector, and greater policy coherence and coordinated actions through whole-of-government and Health in All Policies approaches, to find solutions to health challenges, such as the need for public health-driven research and development, improved existing and alternative frameworks to adequately reward innovation, pricing and affordability of health products, and leveraging innovative technologies, including digital technologies, and solutions for health;

The language on delinkage was retained despite the efforts of Australia and Switzerland to purge the text from a reference to delinkage (this language was already adopted by the HRC) in 2016. During the informals, Australia, Japan and Switzerland objected to references in operative paragraph 8 on “alternative frameworks”. Notwithstanding the concerns of Australia, Japan, and Switzerland, the phrase “alternative frameworks to adequately reward innovation, pricing and affordability of health products” was retained in operative paragraph 5 the final text.

In relation to WHO’s transparency resolution, the preamble stated:

Reaffirming the importance of improving transparency of markets for medicines, vaccines and other health products across the whole value chain, and taking into consideration resolution WHA72.8 adopted by the World Health Assembly at its seventy-second session,

Prior to the resolution’s adoption, Ambassador Maria Nazareth Farani Azevêdo (Brazil) delivered the following statement on behalf of the Core Group (Brazil, China, Egypt, India, Indonesia, Senegal, South Africa and Thailand).

Human Rights Council
41st Session
Decisions and Conclusions

L.13 – “Access to medicines and vaccines in the context of the right of the highest attainable standard of physical and mental health

On behalf of Brazil, China, Egypt, India, Indonesia, Senegal, South Africa and Thailand, I have the honor to present draft resolution L.13 entitled “Access to medicines and vaccines in the context of the right of the highest attainable standard of physical and mental health”.

Together, the countries that compose this diverse core group represent almost half of the world population and struggle to guarantee that every person has access to the medicines and vaccines they need to have their right to health fulfilled and live a life in dignity.

Some countries which often portray themselves in this Council as human rights beacons, may argue here that access to medicines is not a human rights issue and that it should be discussed only through technical lenses. But, Mr. President, how can someone ignore that not only the right to health, but often the right to life is threatened by the lack of safe, effective, quality and affordable medicines and vaccines? Those who do, seem to be making room in this Human Rights Council for interests that have very little to do with public health and much less with human rights.

In this Human Rights Council it is our duty to remember that no one should die before their time because they have not had access to the needed medicine. It is our duty to protect and promote their human right to life.

Since the adoption of the last resolution on this topic, in 2016, a lot has changed in the field of access to medicines and vaccines.

Besides the growing recognition of its central role in all relevant public health discussions – which can be confirmed in the texts of the outcome documents of the last high-level meetings in the field of health-, there is a growing number of countries, including developed countries, which are adding their voices to ask for more transparency of markets and are concerned about the high prices for health products and services which render health systems unsustainable.

It’s also important to recall that specialized civil society organizations and patients’ groups are more vocal and active than ever to guarantee that no one is left behind without medicines and vaccines and that progresses in the field of science are enjoyed by everyone.

The draft resolution we have in front of us recalls that access to medicines and vaccines is one of the fundamental elements for the full realization of the right to health and the correspondent objectives of Universal Health Coverage. It also encourages States, international organizations, civil society, academic and research institutions and the private sector to join forces and try to find common solutions for public health needs. The interrelatedness between poverty and other social and economic determinants of health is also recognized in the draft, as well as the challenges imposed by the outbreak of pandemics worldwide.

Mr President,

Although this is undoubtedly a human rights text, it reflects the multidimensional nature of the discussion, also encompassing public health concerns, trade rules and intellectual property parameters. It recognizes the important role played by the WTO and welcomes the entry into force of the protocol amending the TRIPS Agreement.

The expertise of WHO in the field is also fully acknowledged, particularly the recent adopted Road Map on Access to Medicines, Vaccines and other Related Health Products and The resolution 72.8 on transparency. The inter-sessional seminar proposed by our draft resolution will be organized in close cooperation with WHO, therefore reinforcing the UN pledge to deliver as one.

We thank all delegations that constructively engaged in the negotiations during the informal meetings, and also made relevant contributions bilaterally. As in any other negotiation, we tried to reach a balance among different, and sometimes opposite, perspectives. We, the sponsors of this resolution, participated in good faith and constructively in the informals and made an honest attempt to accommodate all human rights-related concerns.

We also highly appreciate the technical support of the OHCHR and the WHO throughout the process, and thank civil society organizations that also made fundamental contributions and took part in the informal consultations.

Finally, this resolution deals with real life situations, life-threatening challenges and the human right to health and to life. We invite all Council members to adopt draft resolution L.13 by consensus and to join the list of cosponsors.