an Eldis Resource

This report examines the role of the TRIPS Agreement on the promotion and protection of the right to health. It focuses on the right to health as an entry point for an analysis of the TRIPS Agreement for several reasons. First, resolution 2000/7 recognises that the TRIPS Agreement could affect the enjoyment of the right to health - in particular through its effect on access to pharmaceuticals. Next, this is an opportunity to expand on work already being done by other international organisations in the area of the TRIPS Agreement and health - in particular by the World Health Organization (WHO), UNAIDS and WTO. Finally, as the issue of trade agreements and health has been raised within the context of world conferences, the report can be situated within an identifiable international policy framework.

Report examines the links between human rights and the TRIPS Agreement. It offers a human rights approach to the TRIPS Agreement, and assesses states' obligations to respect, protect and fulfil the right to health. It looks at operational aspects of IP systems in medical research, and in access to drugs. Finally it considers the provision of HIV treatments in Brazil

Recommendations

• Obligations on States: States should take with regard to the promotion of the right to health, including: the promotion of research; ensuring access to affordable essential drugs; the adoption of specific measures in relation to HIV/AIDS; and the promotion of international cooperation to implement the right to health (general comment No. 14 on article 12 of the (ICESCR)
• encouragment for States to monitor the implementation of the TRIPS Agreement to ensure that its minimum standards are achieving this balance between the interests of the general public and those of the authors
• support for the WHO statement that 'countries are advised to carefully monitor the implementation of the TRIPS Agreement in order to formulate comprehensive proposals for the future review of the TRIPS Agreement'
• encouragment for interpretations of these requirements that do not lose sight of the public interest in the wide dissemination of knowledge under article 15
• support for WHO's call that 'when establishing standards of patentability for pharmaceuticals, countries should consider the implications for health of those standards'
• encouragment for States to consider the elaboration of competition laws that prevent abuses of IPRs that lead to violations of the right to health - in particular restrictive licensing practices or the setting of high prices for essential drugs
• encouragment for the adaptation of IP systems so that they fully take into account cultural and other rights of indigenous and local communities
• encouragment for member States to implement these provisions in national legislation as safeguards to protect access to essential drugs as a component of the right to health as well as other human rights
• encouragment for developed countries to establish clear incentives to promote technology transfer and the supply of affordable drugs to developing countries
• encouragment for the Fourth Ministerial Meeting of the World Trade Organization in Qatar in November 2001 to consider establishing closer links between the promotion and protection of human rights and the TRIPS Agreement. In the event of a renegotiation of the Agreement, this could be achieved through an express reference to human rights in article 7
• joining WHO in recommending that developing countries be cautious about enacting 'TRIPS plus' legislation that is more stringent than present requirements under the TRIPS Agreement without first understanding the impact of such legislation on the protection of human rights

[Adapted from the author]

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