[Ip-health] Lisa Forman: Rights and Drug Trade Rules

[Miles Teg]

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Forman does an excellent job. Thanks for posting this.
There is a great deal of work being done on the right to health. And Human
Rights coupled with social action has been a driver of change.
Human rights, however has inherent limitations. For instance, the right to
health, and access to food for instance, have been subject to numerous
critiques by special rapporteurs. But the situation has not improved. This is
complex, but from my limited knowledge Human Rights are more transformative
from a classically "negative defensive" perspective, but progress is being
made as Foreman points out.
And HR are however limited from a positive enforcement of socio-economic
rights - the latter being the province of the governmental system where
resource allocation and realisation of rights is determined by governments
through the law-making and budgetary process. More contextual understanding
is needed to get a better fit so that HR per se is transformative.
[And btw in many developed countries the preponderant beneficiaries of rights
(and those who use the human rights litigation system are more often than not,
including Canada) are corporations. This is simply a practical observation.]
Human rights cannot easily enter into the (health) economic choices made, it
can evaluate mainly the effects and consequences. As such, the European Social
Contract Health System is fully compatible with HR obligations as is the
highly expensive (and inefficient?) private supernormal profit monopoly
private sector system in the US. As long measures are taken to "progressively
realise" these (plus other) rights, balanced with other competing obligations
(which cannot necessarily be inquired into), the US, for instance, is beyond
scrutiny. However, Foreman:

The right to health is now extensively codified in international and regional
instruments.21 Furthermore, many of these instruments are now widely
ratified.22 At the same time, expert interpretations have advanced
understanding of the scope of individual entitlements under this right and the
correlative duties that it places on states. It is notable, therefore, that
the UN Committee on Economic, Social and Cultural Rights has indicated that
states hold minimum core duties to provide essential medicines, which are not
subject to progressive realization. 23 These normative developments are
increasingly reflected in domestic law: health rights now appear in two-thirds
of all constitutions.24 Domestic courts are increasingly willing to enforce
the right to health, either indirectly through civil rights to life and
equality, as in India and Canada, or as a direct justiciable right, as in
South Africa and several Latin American countries.25 There is also a growing
jurisprudence in which access to medicines has been successfully claimed under
human rights protections.26 Where state implementation of these decisions is
effective (as in South Africa), they can lead to considerable public-health
benefits.27 The right to health is therefore no longer appropriately
characterized as an ineffectual manifesto right; it is a widely recognized
legal right with tangible force and effect in claiming access to health care
and medicines.28 (emphasis added)

FN 23 Committee on Economic, Social and Cultural Rights, General Comment No.
14: The Right to the Highest Attainable Standard of Health. UN Doc. No.
E/C.12/2000/4 (2000), paras 4243.] Foreman argues a good case for the finding
of State Responsibility, but more and closer study is needed of the references
in footnotes, as to the international dimension of the universal and
indivisible rights because it cannot simply be assumed that State
Responsibility is sufficient (rich countries providing direct budget support
to poor countries bear added responsibility). As the recent scandalous attack
on Thai CLs shows, States may have been held responsible and accountable for
something over which they have little control. Letting the demandeurs of a
self-interested interpretation of international agreements get away neatly.
This is the dimension that needs much more study as the fault then is
simplistically pointed to developing countries (who should just take action,
as many Northern CSOs argue, and if they don't they are to blame) deflecting
attention from the role of monopoly capitalists and their client states' bully
boy and dirty tactics.
It is this challenge that the rights community needs to deal with in addition
to the traditional dimension.
I would like to hear more about the value for health and access to medicines
of the Right to Health, where use of compulsory licenses in situations of
inadequate access enjoys automaticity (like to protect public health - which
is only meaningful if it is a nationally determined standard of protection -
irrespective of international organisations' multiple-personality disorder on
this matter) and actions to protect profits, even internationally, are viewed
and treated with the disdain and contempt they rightly deserve in the face of
preventable and excessive mortality and morbidity.
Why is it that rich countries can use and issue CLs with ease but the SAME
values do not apply to poor countries? This discrimination from an
internationalist perspective is glaring. Is it that all states are equal but
some are more equal than others? Is this not a HR concern? If HR is limited to
national actions, what meaning has universality and indivisibility in an age
of monopolistic transnational capitalism (as opposed to regulated capitalism
or competitive capitalism)?
So pursing state responsibility of developing countries as the primary terrain
of action is only one part of the story but fails to give an adequate
explanation of the political forces at work to undermine access to medicines.
The flip side of developing country challenges is the use of such rights to
prevent actions undertaken by developed countries to preclude the use of legal
flexibilities under TRIPs. So if Human Rights, which are supposedly universal
and indivisible - and in which compulsory license use and price regulation is
acceptable in rich countries but not in poor ones - then there ought to be
international AND national mechanism to prevent governments from hampering the
realisation of the rights in other countries.
Cases in point include -
1. US use of the unilateral Special 301 watch list (and their link to
investment and trade) for countries even simply considering compulsory
licenses - what is being done about this Sword of Damocles? Why are EU groups
not pursing compliance with the EU/US WTO ruling on this to see if the US is
complying?
2. US/EU/Japan use of  state action (which is disciplined by Human Rights) to
limit or block use of TRIPs flexibilities - as there is a general obligation
not to engage in action that undermines Human Rights. And here it is not just
state action that counts, but also that of business lobby groups (the usual
suspects are listed on the "pre-emptive war" IPR watch list on the USTR
list).Why can the RtoH not be used to challenge the EU counterfeit directive
that is so poorly crafted that it is subject to abuse by right holders. Is
such a shoddily drafted law not a violation of the EU commitment not to
undertake actions that undermine the realisation of the right to health? If
not, why not?
While implicit in some of the issues raised, more needs to be done on
contextualising of Human Rights, and the right to health, in a framework where
about 5 companies (with holding companies, cross relationships, tie-in
production contracts, toleration of vertical AND horizontal market dominance,
preferential access to finance from "toxic" Wall Street for extending market
dominance - misnomered as consolidation, the oligopolists with interests
seemingly "cartelised" in the monopoly capitalist lobby "direct action" group
IFPMA, etc, etc).
Let us be clear, the rich countries were UNITED in opposition to the
provision, at WHO innovation process, that 'public health takes precedence
over commercial interests' (shearing about WHO staff AND some "approved and
sanitised experts" criticise advocates of this position as being
'unconstructive' or not being 'focussed' was as amusing as it was chilling).
This is the realpolitick context in which these rights operate.
This position is fine for the Europeans because they can preach free trade  to
others (to benefit monopolists, go figure)  - like demanding financial
liberalisation including of health financial services, while maintaining their
health social contract. For the US, let us avoid communism - that is argument
intellectual enough to dismiss any suggestion notwithstanding the end of
history. And that socialism for the rich is the new administration's hallmark.
The rights groups have a great challenge on promoting the universalism of this
right, and the extra-territorial actions of rich countries that undermine the
progressive realisation of the RtoH in poor countries. Perhaps the
counterpoint to international health security and  diplomacy needs to be
'health imperialism'.
This will be difficult, when even international organisations do not want to
address the primary mandates on the need for balance in health or intellectual
property (let us not forget the footnote fracas on the Aug 31 Decision!).
Aidan Hollis wrote:

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Interesting paper:

'Rights' and Wrongs: What Utility for the Right to Health in Reforming
Trade Rules on Medicines?
Lisa Forman, U of Toronto

Abstract:
This paper explores the legal and normative potential of the right to
health to mitigate the restrictive impact of trade-related
intellectual property rules on access to medicines, as evidenced by
the global outcomes of the seminal pharmaceutical company litigation
in South Africa in 2001. I argue that the litigation and resulting
public furor provoked a paradigm shift in global approaches to AIDS
treatment in sub-Saharan Africa. I argue further that this outcome
illustrates how human rights in concert with social action were able
to effectively challenge dominant claims about the necessity of
stringent trade-related intellectual property rights in poor
countries, and ergo, to raise the priority of public health needs in
related decision-making. I explore the causal role of rights in
achieving these outcomes through the analytical lens provided by
international legal compliance theories, and in particular, the model
of normative emergence proposed by Martha Finnemore and Kathryn
Sikkink. I suggest that the AIDS medicines experience offers strategic
guidance for realizing the right to health's transformative potential
with regard to essential medicines more generally.

  available at
http://papers.ssrn.com/sol3/papers.cfm?abstract_id=1353221[1]

Aidan Hollis
Professor of Economics

University of Calgary, 2500 University Dr NW Calgary AB T2N 1N4 Canada
tel: +1 403 220 5861  fax: +1 403 220 5861
email: ahollis@ucalgary.ca[2]
web: http://econ.ucalgary.ca/hollis.htm[3]

Incentives for Global Health
http://www.healthimpactfund.org[4]



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===References:===
  1. http://papers.ssrn.com/sol3/papers.cfm?abstract_id=1353221
  2. mailto:ahollis@ucalgary.ca
  3. http://econ.ucalgary.ca/hollis.htm
  4. http://www.healthimpactfund.org
  5. mailto:Ip-health@lists.essential.org
  6. http://lists.essential.org/mailman/listinfo/ip-health