Trade for Human Rights as a Minimum Core Obligation

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In his report on the Minimum Core Doctrine (MCD) John Tasioulas states:

“the essence of the concept will be taken to be the sub-set of obligations associated with socio-economic rights that must be immediately complied with in full (obligations of immediate effect)” (p. 3).

He contrasts these against those obligations that require significant resources and are therefore subject to ‘progressive realization’. Thus, the defining characteristic of MCD is that it differentiates obligations between those of immediate effect and those of progressive realization. And the focus is on the nature of the obligations (what the state must do when) rather than the nature of substantive rights (the condition of people’s lives).

However, the discussion about what constitutes minimum core obligations in substance focuses on the nature of rights enjoyment and a package of minimum goods and services that would be required rather than the nature of obligations. This starts with General Comment 3 that refers to ‘a minimum core obligation to ensure the satisfaction of, at the very least, minimum essential levels of each of the rights’, and to the provision of ‘essential primary health care’ (ICESCR quoted in Tasioulas p. 5). Further, human rights-based practice begins to specify specific types of diseases to be treated and goods and services that would be included in the minimum, as under the ‘selective primary health care model’ adopted by UNICEF (Tasioulas p. 5).

Thus, the concept of minimum core obligations has become translated as a right to a minimum set of goods and services, specifically identified with the provision of primary health care, including specific services such as oral rehydration therapy, immunization against six childhood diseases, and access to essential medicines on the WHO list. A key criterion in developing this list is affordability which makes immediate provisioning possible. Ironically – as I will discuss below – prevailing prices of such goods are therefore important to defining minimum core obligations rather than their importance for people in leading healthy lives.

This conception of MCD around low cost goods and services is unnecessarily restrictive. It is also out of line with concerns to meet pressing and priority health needs of the population. It departs from the original concept of obligations of immediate effect. It limits the consideration of the wide range of measures that national governments should take to expand the enjoyment of the right to health such as by reversing damaging policies or setting new ones. A salient example is policy choices governments might make in the area of intellectual protection provisions in free trade and investment agreements.

Intellectual property, trade agreements, and access to medicines

One of the pressing threats to the human right to health is the trend to include stronger intellectual protection in bilateral and plurilateral trade agreements. Since the introduction of the WTO TRIPS agreement that made strong intellectual property (IP) protection a requirement for all signatory countries, health and human rights activists have protested their effects on public health priorities, particularly in restricting access to life saving medicines[1]. More than two decades on, even stronger IP provisions – ‘TRIPS Plus’ – have proliferated in new bilateral and plurilateral agreements, such as the Comprehensive and Progressive Agreement for Trans-Pacific Partnership (TPP), that was agreed in January 2018 by 11 countries[2]. These provisions strengthen patents held by pharmaceutical corporations by making patentability easier, and delaying the introduction of generic competition that would lead to lower prices and wider diffusion. Moreover, the new ‘trade agreements’ increasingly incorporate wide ranging provisions for investment – such as provisions for investor/state dispute settlement, public procurement, state owned enterprises and more – that strengthen investor rights and impose limitations on policy options for national governments in pursuing public health[3]. These agreements are being negotiated with little consideration of their effects on the government obligation to fulfill the right to health; rarely are public health impact assessments made.

IP and trade policies for human right to health as a Minimum Core Obligation

There is much that countries can do to make IP-related trade agreements less damaging to public health priorities if not promote them[4]. To start with, governments can make more proactive use of the flexibilities incorporated in the TRIPS agreement to make life saving medicines available at affordable prices. Countries can reject TRIPS plus provisions. Or they can also reject free trade agreements. These are all approaches that some countries – such as Thailand, Colombia, and Brazil have adopted. Even more important, countries that are defending IP holders interests, should refrain from joining corporations in taking retaliatory action against those countries that do use the flexibilities[5]. For example, US government places countries that use TRIPS flexibilities on the Special 301 watch list that monitors IP enforcement and lists countries where enforcement is inadequate or weakening. One of the concerns is with “troubling indigenous innovation policies that may unfairly disadvantage U.S. rights holders in foreign markets.” (USTR 2018)[6].

Though much has happened to expand access to life saving, high cost, patented drugs, and to invest in innovations for public health priorities, many gaps remain. Millions of people around the world lack access to medicines, and these include new branded medicines that carry very high prices – for example latest cancer drugs approved generally cost over US$100,000 for a year’s course of treatment, the new hepatitis C drug costs $1000 per pill or $84,000 for a course of treatment[7]. Access to such drugs is critical to life and is surely a priority for the fulfillment of the human right to health and the human right to life. Yet latest lifesaving drugs are not on the WHO essential medicines list as they are too expensive and cannot be provided universally. But this is because of the IP driven medical research and development system, enforced through trade agreements, that governments are obliged to comply with. At the same time, research and development (R&D) lag for high priority challenges because they do not offer attractive investment potential. This includes not only tropical diseases that afflict poor people and poor countries, but priorities for people of all levels of income, such as new antibiotics to combat growing antimicrobial resistance (AMR). Proactive government action, to coordinate internationally and promote priority investment in medical R&D by mobilizing public, private, and philanthropic resources would go a long way to fill these innovation gaps. Numerous initiatives have been taken in this direction but much more can be done.

Taking a proactive approach to designing trade and investment policies that align with public health priorities and that do not undermine the right to health is therefore an important human rights obligation of governments. I would argue that this is an important minimum core obligation because it is one that can be implemented with immediate effect, without large investment of resources. But many countries – particularly small developing countries – that have little economic or political clout in trade negotiations are faced with difficult trade-offs between joining trade and investment agreements to benefit from the global economy, and the need to protect policy space for pursuing their public health priorities. It is incumbent on all countries therefore to work collectively to promote systemic change and develop global principles and mechanisms for a more equitable policy framework for financing medical innovation. Many proposals have been made, not least by the series of global commissions that have addressed the contradictions between trade and health over the years. Pursuing these measures that would work towards greater equity in access to medicines – particularly all lifesaving medicines, and not just the inexpensive ones that are on the WHO essential medicines list – is surely a minimum core obligation of states necessary for the fulfillment of the human right to health.

Notes

[1] While intellectual property protection rewards investors, it creates barriers for diffusion. It also hinders innovation for social priorities such as diseases of the poor that do not create a market demand. The tension is recognized in the TRIPS agreement itself that includes measures – commonly referred to as “TRIPS flexibilities” – that can be taken when the IP provisions get in the way of public health priorities.
[2] Without the US that withdrew from the original 2016 agreement.
[3] For summary discussion of these issues, see McNeil et al 2017.
[4] For overview see report of the UN High Level Panel on Access to Medicines and Innovation 2017
[5] Several cases have been documented since the early 2000s, such as the case of Thailand that has used a compulsory license for HIV/AIDS drug in 2006, to more recent case of Colombia’s effort to issue a compulsory license for a cancer drug. Such efforts have met with retaliatory actions such as corporations threatening to withdraw their products from the market, or with being put on US government’s Special 301 watch list of countries where IP enforcement is weakening.
http://www.ip-watch.org/2018/04/27/ustr-annual-special-301-report-seeks-intensify-action-china-colombia-canada/
https://www.ictsd.org/bridges-news/bridges/news/thailand-issues-compulsory-licence-for-patented-aids-drug
[6] Office of the US Trade Representative, 2018 Special 301 Report.
https://ustr.gov/sites/default/files/files/Press/Reports/2018%20Special%20301.pdf 

Sakiko Fukuda-Parr is Professor of International Affairs at The New School. @sfparr.

Photo: ©torange.biz

This piece was first published on James Stewart’s website.

 

 

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