1. Access to Medicines, TRIPS and Human Rights
Undergraduate Medicine Pre-Clerkship, Global Health Longitudinal Elective, 9 February 2011
Access to Medicines, TRIPS and Human Rights
Lisa Forman
Lupina Assistant Professor, Dalla Lana School
of Public Health, Munk School of Global Affairs
Director, Comparative Program in Health and Society
University of Toronto

2. Structure Access to medicines and TRIPS
Human rights and advocacy for AIDS medicines
Implications for global health equity

3. 1. Access to Medicines Gap
2 billion people—1/3 global population—lack regular access
50 percent of populations in poorest Asia and Africa lack access

4. Factors Affecting Access
Economic factors disproportionate in poor countries
Common infectious and non-communicable diseases require costly drugs
Source: WHO (2004) 4 4

5. WTO Agreement on Trade-Related Aspects of Intellectual Property Rights (TRIPS)
20 year exclusive patents for pharmaceuticals
TRIPS ‘flexibilities’ allow generic manufacture and import (compulsory licensing, parallel imports)
But obstacles to their use
Unilateral trade sanctions
Corporate litigation
‘TRIPS-plus’ free trade agreements 5

6. Impacts on health and development
Pressures persist despite Doha Declaration on Public Health (2001)
TRIPS/TRIPS-plus rules raise drug prices, reduce access to generics, exacerbate drug gap
Threaten realization of rights to health and development

7. 2. International human right to health
Universal Declaration of Human Rights
25.1 Everyone has the right to a standard of living
adequate for health and well-being including food,
clothing, housing and medical care and necessary
social services
International Covenant on Economic, Social
and Cultural Rights
12.1 State parties recognize everyone’s right to
the enjoyment of the highest attainable standard of
physical and mental health

8. Corporate Views Circa 2001
“In the middle of the global AIDS epidemic, it is easy—although misguided—to assume that the cost of drugs used to treat HIV and AIDS is the primary barrier to people in poor countries having greater access to such drugs …The main barrier to access is the lack of adequately resourced healthcare systems”
Richard Sykes, Chairman of Glaxo Smith Kline (2002)
“We are not the Red Cross. We are a for-profit company”
Clementine L. Clemente, Executive VP, Pfizer (2001)

10. Global compliance with status quo
UN suggested treatment was unwise use of resources
No international funding
Limited price concessions
Medicines largely inaccessible in low and middle income countries 10 10

11. Issue reframed by activists
Global activists resist status quo
Norm entrepeneurs reframe as issue of rights and morality
Battles using rights-based argument, research and mass action 11 11

12. Opportunistic advocacy in South Africa
40 companies sue government to block drug legislation
Companies argue breach of TRIPS
Social actors join case bringing human rights arguments 12 12

13. Global Public Action Global demonstrations in thirty cities
International petition with signatures
EU, Dutch, German and French resolutions call for withdrawal of case
Mandela criticizes companies
Source: Gideon Mendel 13 13

14. Growing Negative Opinion
Los Angeles Times
18 March 2001
South Africa Again Gives the World a Conscience
Sydney Morning Herald
March 6, 2001
Drug giants fight against cheap relief for AIDS
TIME
AIDS Drugs Case Puts Our Ideas about Medicine on Trial
Tony Karon, 5 March 2001
The Washington Post
Patent Wrongs
Editorial, 25 February 2001 14 14

15. Norm Cascades at UN
April 2001: Commission on Human Rights, Access to Medication in the Context of Pandemics such as HIV/AIDS
June 2001: Intellectual Property Rights and Human Rights: Report of the Secretary-General
The Impact of TRIPS on Human Rights–Report of High Commissioner
Aug 2001: Intellectual Property Rights and Human Rights
Dec 2001: Committee on Economic, Social and Rights, Human Rights and Intellectual Property
July 2002: OHCHR and UNAIDS, Revised Guideline 6 on Access to Prevention, Treatment, Care and Support 15 15

16. Norm emerges at WTO Doha Ministerial Declaration on TRIPS and Public
Health (November 2001):
TRIPS can and should be interpreted and implemented in a manner supportive of WTO Member’s right to protect public health and, in particular, to promote access to medicines for all.
We affirm the right of WTO Members to use, to the full, the provisions in the TRIPS Agreement, which provide flexibility for this purpose 16 16

17. Major policy shifts
International funding materializes in GFATM and PEPFAR
From 3x5 to goal of universal access adopted by WHO, UNAIDS, UN General Assembly, G8 in 2005 17 17

18. Major price drops

19. ARV Access Shoots Up 19 19

20. AIDS Deaths Reduce “Declines in [mortality in] the past two years are
partly attributable to the
scaling up of antiretroviral
treatment services”
Source: WHO and UNAIDS, 2007, annotation added 20 20

21. He challenges other pharmaceutical giants to follow his lead.
Drug Giant GlaxoSmithKline pledges cheap medicines for world’s poor Head of GSK shocks industry with challenge to other ‘big pharma’ companies Sarah Boseley, 13 February 2009
New GSK head, Andrew Witty, will slash prices on all medicines in the poorest countries, give back profits to be spent on hospitals and clinics and share knowledge about potential drugs currently protected by patents
Witty says he believes drug companies have an obligation to help the poor get treatment.
He challenges other pharmaceutical giants to follow his lead.

22. Efficacy of human rights
Rights-based action ensured coercive reputational damage key to withdrawal
PMA initiated broader acceptance of human rights claim for AIDS medicines in Africa
Global support for AIDS treatment in Africa followed

23. Implications for global health equity
Activists established causality between trade rules, corporations and inaccessibility
Causality between actors, rules and outcomes created consensus on violation
Apparent moral violation makes human rights frame resonate

24. Conclusion
Rights offer ideational tools to reconstruct identities, preferences and behaviour
Rights offer a normative and legal power to shift actors towards more just outcomes 24 24

25. For further information
Acknowledgements
Research funded by
Comparative Program on Health and Society,
University of Toronto
Canadian Institutes of Health Research
For further information 25 25