[asia-apec 1527] United Nations Body warns of conflicts between TRIPS and Human Rights

[Anuradha Mittal]

PLEASE POST

Excellent work -- thanks to International NGO Committee on Human Rights 
in Trade and Investment (INCHRITI).
warm regards,

Anuradha 

August 23, 2000 

PRESS RELEASE

Contacts: 

Miloon Kothari, Habitat International Coalition and INCHRITI.  
Tel./Fax: 91.11.4628492; E-mail: hichrc at ndf.vsnl.net.in 

Peter Prove, Lutheran World Federation and INCHRITI. 
Tel: 41.22.7916364; Fax: 41.22.7988616; E-mail: pnp at lutheranworld.org 




UNITED NATIONS BODY WARNS OF CONFLICTS BETWEEN 
INTELLECTUAL PROPERTY RIGHTS AND HUMAN RIGHTS

COULD INFLUENCE PATENTS FOR DRUGS, BIOTECH SEEDS 


Geneva - On August 17, 2000, an important UN human rights body 
unanimously adopted a resolution calling into question the impact of the 
World Trade Organization (WTO)'s Agreement on Intellectual Property 
Rights (known as TRIPS) on the human rights of peoples and communities, 
including farmers and indigenous peoples worldwide.

The surprising resolution signals a growing concern about an
industry-driven intellectual property agreement that protects corporate
patents around the world, sometimes at the expense of national economic 
and health concerns. The TRIPs agreement sets international rules to 
protect patents in a whole host of sectors, but it is particularly 
important for pharmaceutical and biotechnology companies. 

In the unprecedented resolution, the UN Sub-Commission for the 
Protection and  Promotion of Human Rights pointed out the dire 
consequences on the human rights to food, health and self-determination 
if the TRIPS Agreement is implemented in its current form. Reminding 
governments of the primacy of human rights obligations over economic 
policies and programs, the resolution states that there are "apparent 
conflicts between the intellectual property rights regime embodied in 
the TRIPS Agreement, on the one hand, and international human rights 
law, on the other."

"This is a pathbreaking resolution in more ways than one," stated Miloon 
Kothari from the International NGO Committee on Human Rights in Trade 
and Investment (INCHRITI), an alliance of eight human rights coalitions 
that advocated action by the Sub-Commission on TRIPS. First and foremost 
this timely resolution signifies the resolve of the UN human rights 
programme to monitor the work of the WTO.  Basing itself on the 
provisions of both the UN Covenant on Economic, Social and Cultural 
Rights and the UN Convention on Biological Diversity, "this historic 
resolution has affirmed the primacy of human rights and environmental 
obligations over the commercial and profit driven motives upon which 
agreements such as TRIPS are based." added Kothari.   

According to Peter Prove of the Lutheran World Federation, a human 
rights analysis of the interpretation and implementation of the TRIPS 
Agreement reveals that TRIPS has skewed the balance inherent in 
intellectual property law systems away from the public interest and in 
favour of intellectual property rights holders. He said that, contrary 
to some analyses, intellectual property rights do not have the character 
of fundamental human rights, but rather of subordinate or instrumental 
rights. 

Simon Walker of the Office of the United Nations High Commissioner for
Human Rights noted that the TRIPS Agreement's requirement that
pharmaceuticals be patented by all WTO Members "might be appropriate for 
countries with high levels of investment in medical research. But," he 
asked, "is it suitable for countries with a high level of HIV/AIDS, 
malaria and tuberculosis infection that have not yet developed a 
pharmaceutical research base? For these countries, access to drugs -- 
rather than innovation of drugs -- is the imperative. Given that there 
is a link between patent protection and higher prices for 
pharmaceuticals, the grant of private property rights could be 
detrimental to public health -- and development in general -- in these 
countries."

The UN Sub-Commission's resolution marks the beginning of what promises 
to be an intense monitoring of WTO work by the UN human rights system. 
The resolution asks the WTO, in general, and the Council on TRIPS during 
its ongoing review of the TRIPS Agreement, in particular, "to take fully 
into account the existing State obligations under international human 
rights instruments."   It also asks the UN Secretary General Kofi Annan 
to prepare a report on the implications of the TRIPS Agreement and 
options for further action by the Sub-Commission. The resolution has 
also called upon the UN High Commissioner for Human Rights and other 
relevant UN agencies to
undertake an analysis of the human rights impacts of the TRIPS 
agreement.  

The resolution comes at a time of intense questioning by developing 
country governments of the TRIPS Agreement and its interpretation and
implementation, and of calls by numerous national and international 
civil society alliances for the TRIPS Agreement to be brought in line 
with human rights and environmental imperatives.  

Stressing that intellectual property rights have to serve public 
benefit, and concerned by the true motives of the TRIPS agreement, the 
resolution calls upon governments to integrate into their national and 
local legislations and policies provisions that, in accordance with 
international human rights instruments and principles, protect the 
social function of intellectual property. 


For more information on the work of both the UN Sub-Commission for the
Promotion and Protection of Human Rights and INCHRITI, please contact:  

Miloon Kothari, Habitat International Coalition and INCHRITI.  
Tel./Fax:  91.11.4628492; E-mail: hichrc at ndf.vsnl.net.in 

Peter Prove, Lutheran World Federation and INCHRITI. 
Tel: 41.22.7916364; Fax: 41.22.7988616; E-mail: pnp at lutheranworld.org 



 

COMMISSION ON HUMAN RIGHTS

Sub-Commission on the Promotion and Protection of Human Rights

Fifty-second session

Agenda item 4

 

THE REALIZATION OF ECONOMIC, SOCIAL AND CULTURAL RIGHTS

 

Intellectual Property Rights and Human Rights

 

The Sub-Commission on the Promotion and Protection of Human Rights,

Reaffirming that, as declared in article 28 of the Universal Declaration 
of Human Rights, everyone is entitled to a social and international 
order in which the rights and freedoms set forth in the Universal 
Declaration can be fully realized,

Stressing the need to work towards the realization for all people and
communities of the rights, including to food, housing, work, health and
education, enshrined in the International Covenant on Economic, Social 
and Cultural Rights,

Recalling its resolutions 1998/8, 1998/12, 1999/8, 1999/29 and 1999/30, 
and resolution 1999/59 of the Commission on Human Rights, 

Noting the statement of the UN Committee on Economic, Social and 
Cultural Rights to the Third Ministerial Conference of the World Trade 
Organization (WTO) (26/11/99.E/C.12/1999/9),

Welcoming the preliminary report submitted by J. Oloka-Onyango and D.
Udagama on "Globalization and its impact on the full enjoyment of human
rights"; (E/CN.4/Sub.2/2000/13),

Noting the provisions of the Convention on Biological Diversity, which
echoes the International Covenant on Economic, Social and Cultural 
Rights on the right to self-determination and on the balance of rights 
and duties inherent in the protection of intellectual property rights, 
and its provisions relating to, inter alia, the safeguarding of 
biological diversity and indigenous knowledge relating to biological 
diversity, and the promotion of the transfer of environmentally 
sustainable technologies,

Aware of the World Trade Organization Agreement on Trade-Related Aspects 
of Intellectual Property Rights (TRIPS), and of its current review by 
the World Trade Organization Council on TRIPS,

Aware also of the panel discussion organized by the World Intellectual
Property Organization on 9 November 1998 on "Intellectual Property and
Human Rights";

Noting the Human Development Reports 1999 and 2000, which identify
circumstances attributable to the implementation of the TRIPS Agreement
that constitute contraventions of international human rights law,


Noting also that members of the Working Group on Indigenous Populations, 
participants at the World Intellectual Property Organization Roundtables 
on Intellectual Property and Indigenous Peoples (23-24 July 1998 and 1-2 
November 1999), and representatives of indigenous peoples have called 
for adequate protection of the traditional knowledge and cultural values 
of indigenous peoples,

Noting furthermore that actual or potential conflicts exist between the
implementation of the TRIPS Agreement and the realization of economic,
social and cultural rights in relation to, inter alia, impediments to 
the transfer of technology to developing countries, the consequences for 
the enjoyment of the right to food of plant variety rights and the 
patenting of genetically modified organisms, 'bio-piracy' and the 
reduction of communities' (especially indigenous communities') control 
over their own genetic and natural resources and cultural values, and 
restrictions on access to patented pharmaceuticals and the implications 
for the enjoyment of the right to health,

 

1.  Affirms that the right to protection of the moral and material
interests resulting from any scientific, literary or artistic production 
of which one is the author is, in accordance with article 27, paragraph 
2, of the Universal Declaration of Human Rights and article 15, 
paragraph 1 c), of the International Covenant on Economic, Social and 
Cultural Rights, a human right, subject to limitations in the public 
interest; 

2.  Declares, however, that since the implementation of the TRIPS 
Agreement does not adequately reflect the fundamental nature and 
indivisibility of all human rights, including the right of everyone to 
enjoy the benefits of scientific progress and its applications, the 
right to health, the right to food, and the right to self-determination, 
there are apparent conflicts between the intellectual property rights 
regime embodied in the TRIPS Agreement, on the one hand, and 
international human rights law, on the other;

3.  Reminds all Governments of the primacy of human rights obligations 
over economic policies and agreements; 

4.  Requests all Governments and national, regional and international
economic policy forums to take international human rights obligations 
and principles fully into account in international economic policy 
formulation;

5.  Requests Governments to integrate into their national and local
legislations and policies, provisions, in accordance with international
human rights obligations and principles, that protect the social 
function of intellectual property;

6.  Further requests inter-governmental organizations to integrate into
their policies, practices and operations, provisions, in accordance with 
international human rights obligations and principles, that protect the 
social function of intellectual property;

7.  Calls upon States Parties to the International Covenant on Economic, 
Social and Cultural Rights to fulfil the duty under articles 2, 
paragraph 1, 11, paragraph 2, and 15, paragraph 4, to cooperate 
internationally in order to realize the legal obligations under the 
Covenant, including in the context of international intellectual 
property regimes;

8.  Requests the World Trade Organization, in general, and the Council 
on TRIPS during its ongoing review of the TRIPS Agreement, in 
particular, to take fully into account the existing State obligations 
under international human rights instruments;

9.  Requests the Special Rapporteurs on globalization and its impact on 
the full enjoyment of human rights to include consideration of the human 
rights impact of the implementation of the TRIPS Agreement in their next 
report;

10. Requests the United Nations High Commissioner for Human Rights to
undertake an analysis of the human rights impacts of the TRIPS 
Agreement;

11. Encourages the Committee on Economic, Social and Cultural Rights to
clarify the relationship between intellectual property rights and human
rights, including through the drafting of a general comment on this 
subject;

12. Recommends to the World Intellectual Property Organization, the 
World Health Organization, the United Nations Development Programme, the 
United Nations Conference on Trade and Development, the United Nations 
Environment Programme and other relevant United Nations agencies that 
they continue and deepen their analysis of the impacts of the TRIPS 
Agreement, including a consideration of its human rights implications;

13. Commends the Conference of Parties to the Convention on Biodiversity 
for its decision to assess the relationship between biodiversity 
concerns and intellectual property rights, in general, and between the 
Convention on Biodiversity and TRIPS, in particular, and urges it also 
to consider human rights principles and instruments in undertaking this 
assessment; 

14. Encourages the relevant civil society organizations to promote with
their respective Governments the need for economic policy processes 
fully to integrate and respect existing human rights obligations, and to 
continue to monitor and publicize the effects of economic policies that 
fail to take such obligations into account;

15. Asks the Secretary-General to provide a report on this question at 
its next session.

 
 17th August, 2000

[Adopted without a vote]
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