Complaint Alleges U. S. Violation of Poor People's Right to Health

Dr. Anne T. Sulton | 8/11/2010, 12:21 p.m.

Matthew Kavanagh, Director of U.S. Advocacy for Health GAP (Global Access Project), recently joined a distinguished panel of lawyers and activists during the 18th Annual International AIDS Conference to announce the filing of a formal complaint with the United Nations Rapporteur on the Right to Health. The complaint, called an Allegation Letter, alleges U.S. violations against the right of poor people to decent health.

Joining Kavanagh at the press conference were Sean Flynn associate director of the Program on Information Justice and Intellectual Property at American University Washington College of Law; Sanya Reid Smith, legal advisor and senior researcher for the Third World Network in Switzerland; Supatra Nakapew, representative of fthe Foundation for AIDS Rights in Thailand and chair of the Thai NGOs Coalition on AIDS; and Loon Gangte, representative of Delhi Network of People Living with HIV and International Treatment Preparedness Coalition.

Essentially, the Allegation Letter claims that the United States, through its trade policies relating to intellectual property, is engaging in "violations of the international right to health". This claim is based upon the United Nations' Universal Declaration of Human Rights. This Declaration directs all nations to promote and protect the rights to life and health of their own citizens and to avoid adopting policies having a negative effect on people in other nations.

The Allegation Letter contends that critically important medicines are not available to millions of poor people across the globe because the United States is threatening to punish countries failing to vigorously protect the intellectual property rights of American drug companies. The issue is quite complex. However, the differences of opinions generally revolve around the type of protections that should be afforded to American companies developing life-saving medicines urgently needed by poor people living in other countries.

On one hand, American drug companies reasonably expect the United States government to do all that it can to ensure their rights are protected in every nation on this planet. The companies claim that among the rights they have are those called "intellectual property rights".

Essentially, "intellectual property rights" protect an individual's or business' interests in his or its intangible products such as musical songs, artistic drawings, designs, inventions, and discoveries.

When a drug company develops a new drug, this is considered the intellectual property of the drug company. The drug company rightly expects the government to protect its interests in its intellectual property. On the other hand, poor people living in other countries urgently need these life-saving drugs, but cannot afford to pay the prices charged by the American companies. In some cases, companies in other countries are copying these drugs developed by the American companies.

The American companies then complain to the United States Trade Representative that their intellectual property rights are being violated. These complaints could end up being listed in the Special 301 Annual Review, which is a report to the United States Congress that is required under Section 301 of the United States trade law.

In its April 30, 2010 report, the Office of the United States Trade Representative states that it "encourages our trading partners to consider ways to address their public health challenges while maintaining intellectual property systems that promote investment, research, and innovation."

This report also identifies countries failing to adequately protect intellectual property rights. If a country fails to adequately protect intellectual property rights, then it can be placed on a "watch list". Being placed on a "watch list" is the first step in a process of punishing a country for failing to adequately protect intellectual property rights.

Basically, it is a warning to make certain that the intellectual property rights of American companies are respected, and that ignoring these rights could result in trade sanctions. Trade sanctions could include charging tariffs on products imported from a country or imposing additional administrative rules to import products from a country.

Based upon the United States Trade Representative's 2010 Special 301 Report, American drug companies' complaints are being heard. The 2010 report places the following countries on the "priority watch list" because of issues relating to medicines or pharmaceutical products: Chile, India, Indonesia, Pakistan, Thailand, and Venezuela. On the 2010 "watch list" for issues relating to medicines or pharmaceutical products are: Bolivia, Brazil, Columbia, Dominican Republic, Ecuador, Egypt, Finland, Lebanon, Malaysia, Mexico, Norway, Turkey, and Vietnam.

American drug companies claim that violations of their intellectual property rights have an adverse impact on their businesses, in part, because it makes it more difficult to recoup the money invested in producing the new medicines.

However, other official United States government reports indicate that United States government agencies, including the National Institutes of Health, have given billions of dollars to American drug companies to help them develop new drugs, including drugs addressing HIV/AIDS.

American taxpayer funding of American drug companies' research raises the question of whether the American drug companies should be able to claim intellectual property rights in drugs developed through American taxpayer financing. Also at issue is whether the American government should punish other countries with trade sanctions when they fail to prevent violations of the intellectual property rights asserted by American drug companies in life saving drugs developed through American taxpayer financing.

The Allegation Letter filed with the United Nations Rapporteur on the Right to Health can be found on the following website: http://www.wcl.american.edu/pijip/go/blog-post/human-rights-groups-to-challenge-special-301.