UNCTAD - United Nations Conference on Trade and Development I Protection of Public Health

In this article we have discussed about the United Nations Conference on Trade and Development (UNCTAD) on Protection of Public Health

 Introduction:

 

The United Nations Conference on Trade and Development (UNCTAD) has focused its access to medicines work on strengthening production capacity in developing countries. In 2005, UNCTAD was mandated by the Commission on Investment, Technology and Financial Issues to carry out work related to the manufacture and supply of pharmaceuticals in the context of the Millennium Development Goal .

The Commission recommended that: “UNCTAD should, within its work programme on investment, technology transfer and intellectual property, assess ways in which developing countries can develop their domestic productive capability in the supply of essential drugs in cooperation with pharmaceutical companies.”

Within the framework of this mandate, UNCTAD established in 2006 a pilot programme on local pharmaceutical production and access to medicines, with the financial support of Germany and the United Kingdom. The aim of the programme: “The overall objective of the programme is to assist developing countries – and least-developed countries (LDCs) in particular – to establish domestic intellectual property regimes that facilitate increased access to affordable medicines...”

Within the activities foreseen by this programme, there are training courses on TRIPS flexibilities applied to local pharmaceutical production. Among the studies published by UNCTAD there are: “Role of competition in the pharmaceutical sector and its benefits for consumers” or “Enhancing productive capacities: the role of health”

The Joint United Nation Programmers on HIV/AIDS

 

The 2016-2021 Strategy of the UNAIDS Programme the objectives of the programs are as follows-

1, To reaffirm the work of promoting innovation and continuous improvement of HIV-related medicines and technologies while ensuring their availability, quality and affordability.

2, To support countries in the adoption and use of TRIPS-related flexibilities and in defending their ability to denounce the provisions of trade agreements that impede access to affordable medicines that go beyond international obligations under the TRIPS Agreement.

3, Joins efforts to explore new systems of incentives for research and development where research and development costs are de-linked from product prices.

Some Examples of the Current Work of UNAIDS on IP-related Issues

 

Information papers on IP-related issues have been developed by the UNAIDS / UNDP secretariats: the impact of IPRs on access to medicines, the challenges of IP chapters in free trade agreements,

In 2013, UNAIDS, UNITAID, WHO and the Brazilian Government organized a consultation on access to HIV medicines in middle-income countries. There were four blocks of recommendations: pricing; regulatory framework; IP and collaboration on local production; and R&D.

In May 2014, UNAIDS co-sponsored a BRICS side event during the World Health Assembly to discuss access to medicines in the context of members of this group of countries. IP was an important item on the agenda.

In May 2015, UNAIDS organized a reflection group on IP and access to medicines to inform the secretariat on possible areas and actions that UNAIDS could undertake to improve access to medicines and address barriers to Intellectual property.

In October 2015, UNAIDS, in collaboration with MSF, the Third World Network and the People's Health Movement, organized a session on TRIPS and access to medicines at the WTO Public Forum in Geneva.

Finally, it is worth mentioning that UNAIDS was part of the Secretariat of the UN SG High Level Panel that issued their report in September 2016.

The Human Rights Council:

 

In 2016 the United Nations Human Rights Council approved a resolution reaffirming that access to medicines is a fundamental element to the full exercise of the right to health. Members also agreed to hold round tables on the issue of access to medicines during the next sessions, in 2017. Resolution 32/L.23 titled: “Access to medicines in the context of the right of everyone to the enjoyment of the highest attainable standard of physical and mental health” was submitted by Brazil, China, Egypt, Haiti, India, Indonesia, Paraguay, Peru, Senegal, Sri Lanka, South Africa and Thailand. The resolution was supported by 72 co-sponsors.

Many resolutions have been adopted in the last 15 years in the context of the WHO. There, the debate has fundamentally been between health and trade. What primes: health or trade? What were the possible contradictions and what were the mechanisms to protect health from the possible negative effects of the new rules governing international trade? On a number of occasions, developing countries attempted to introduce a reference to human rights as an argument for ensuring access to medicines. Unfortunately, all attempts failed because of opposition from the United States of America.

The great value of the Human Rights Council resolution 32/L.23 is to place the debate on access to medicines at another level, at the level of human rights. It may not be just by chance that in December 2015 the UN Secretary-General called for the High-Level Panel with the following terms of reference: to study the incoherence between inventors’ rights, international human rights law, trade rules and public health.

The Human Rights Council confirms the primacy of human rights, such as the right to health over trade, intellectual property rights and other bilateral investment or trade agreements. “It is equally important that the resolution reaffirms the ability of countries to take advantage of the flexibilities envisaged by the Agreement on Trade-Related Aspects of Intellectual Property Rights (TRIPS Agreement) to promote access to medicines, recognizing that patents can be used to set high prices for medicines.”

The resolution reaffirms the importance of access to medicines for all human beings as one of the fundamental human rights and stresses that improved access could save millions of lives every year.

The resolution also refers to the Doha Declaration on intellectual property and public health which confirms that TRIPS does not prevent and should not prevent WTO members from taking measures to protect public health. the adoption by consensus of the resolution coincided with the celebrations of the 30th anniversary of the Declaration on the Right to Development, which recognized both the right to health and access to medicines and public health as essential elements for the exercise of the right to development.

 The United Nations Programmers for Development:

 

The strategy of UNDP on intellectual property and access to medicines has been to frame all its work in the context of the fight against HIV. In other words, access to medicines for people living with HIV is a priority for UNDP. This is a very successful strategy since the drugs used to treat HIV are excellent examples of drugs marketed under conditions such as monopolies, high prices, unethical behaviour, and human rights violations. These issues are common to many other medicines to which many people lack regular access worldwide.

HIV and Health

 

The UNDP website states that “Globally, 35 million people are living with HIV. While new HIV infections have declined by 38 per cent since 2001, the HIV epidemic continues to outpace the response.” However, UNDP continues to state that: “There is a growing threat from non- communicable diseases (NCDs) such as cardiovascular diseases, cancers, chronic respiratory diseases and diabetes – accounting for 60 per cent of premature deaths. Over the next twenty years, NCDs and mental health will cause a cumulative economic output loss of US$ 47 trillion globally.”

The UNDP Strategic Plan 2014-2017 “Recognizes the broad range of social and economic impacts of HIV and the synergies between health and sustainable development. This plan addresses HIV as a cross-cutting issue and emphasizes the rights of people living with HIV; reducing associated discrimination and violence against women; empowering local governance and national capacities to achieve greater equity in access to services for those affected, and strengthening the rule of law and reform of legal systems.”

This report is undoubtedly one of the most robust works produced by a UN agency in the field of health, access to medicines and in particular intellectual property. The legal environment – laws, repressive and judicial systems – has immense potential to improve the lives of people who do not have access to medicines and can save their lives. International laws and treaties can protect and improve access to healthcare and forbid discrimination stimulating the power of national laws to protect health and to ensure access to medicines as a right. This 162-page report presents compelling evidence and recommendations that can save lives, reduce costs, help eradicate the AIDS epidemic, and improve access to medicines in general. Laws can prohibit or permit specific behaviours, and in doing so they shape policies economies, and society. Laws can be an excellent tool to protect and guarantee the health of citizens.

COLLABORATION BETWEEN WHO, UNDP AND UNCTAD

 

Under the TRIPS Agreement, for a product or a manufacturing process to be patentable it has to meet the patentability criteria. These criteria are required by national intellectual property offices and they are: novelty, inventiveness and industrial application (usefulness). However, these three elements are not defined in the TRIPS agreement; therefore WTO member States are free to define these three elements in a manner that is coherent with the public health objectives defined by e

 

According to the report of the United Nations High Commissioner on Health:

 

“The requirements under the TRIPS Agreement for the grant of patents – novelty, inventive step and industrial applicability – are open to interpretation under national legislation and each country can decide according to local conditions. Consequently, the High Commissioner encourages interpretations of these requirements that do not lose sight of the public interest in the wide dissemination of knowledge . The world has never had at its disposal such a wide arsenal of treatments to fight the diseases that afflict humanity. At the same time, many people die owing to a lack of certain medicines and/or vaccines. This applies to illnesses such as AIDS, malaria, tuberculosis, cancer, diabetes, hepatitis C, bacterial meningitis and pneumonia, among many others.”

It is widely believed that patents are usually granted to protect new drugs, but the number of patents obtained annually to protect new compounds is actually very small and has been declining. Each year, thousands of pharmaceutical patents are awarded, although only a few are for new molecular entities (NMEs).

The cumulative nature of innovations, due to low patentability requirements and deficiencies in patent granting procedures, has important consequences on the patent system, which limits the dissemination of the innovations that the system seeks to promote: access to life-saving drugs. “Patents that are based on broad scientific principles are generally bad, because according to the United States Supreme Court, they may confer power to block off whole areas of scientific development, without a compensating benefit to the public.”

All of this led WHO, in collaboration with UNCTAD, UNDP and ICTSD, to develop, in 2007, a series of guidelines for the examination of pharmaceutical patents from a public health perspective. These guidelines were conceived as a contribution to improve the transparency and effectiveness of the patent system for pharmaceutical products. This would help countries to pay more attention to patent examination and grant procedures, in order to avoid the negative effects of patents on non-inventive developments on access to medicines.

The exercise to draft guidelines for patent examination sought a way to manage the pharmaceutical product patent system and, more specifically, the ‘strengthened patent system’ arising from the TRIPS Agreement and current regional and bilateral trade and investment agreements. Patents are a social contract between the patent holder and society; therefore it is necessary to explore, identify and implement mechanisms to improve the functioning and transparency of the patent system in the interest of public health.”

The report of UN SG’s high-level panel, to which we will refer next, recommends to “make use of the space available in Article 27 of TRIPS to adapt and apply rigorous definitions of invention and patentability.”The guidelines for the examination of pharmaceutical patents published by the three agencies WHO, UNDP and UNCTAD are precisely the means to put into practice that recommendation.

Conclusion

The United Nations Conference on Trade and Development plays a vital role in protecting public health by addressing the complex issues at the intersection of trade, development, and health. Through research, capacity building, and international cooperation, UNCTAD works to ensure that trade policies support public health objectives and promote access to affordable medicines and healthcare services.