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4-Patents: UN body warns of conflicts between IPR and human rights



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TITLE:  A) United Nations body warns of conflicts between
           intellectual property rghts and human rights could
           influence patents for drugs, biotech seeds
        B) Intellectual Property Rights and Human Rights
SOURCE: A) Press Release sent by Institute for Agriculture and Trade
           Policy, USA
        B) Commission on Human Rights
DATE:   A) August 22, 2000
        B) August 17, 2000

-------------------- archive: http://www.gene.ch/ --------------------


United Nations body warns of conflicts between intellectual property 
rghts 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.

Kristin Dawkins of the Minneapolis-based Institute for Agriculture 
and Trade Policy welcomed the Sub-Commission resolution, calling it 
"a courageous act in today's political climate." She noted the role 
of the pharmaceutical industry in the drafting of the TRIPS 
Agreement, commenting that "the TRIPS requirements for an 'effective' 
system of intellectual property protection for plant varieties could 
violate Farmers' Rights to save, exchange, re-use and sell seed from 
their own harvests.

Already in the United States, the Monsanto Company (recently acquired 
by Pharmacia, Inc.) has employed Pinkerton detectives to find and 
prosecute farmers who are harvesting seed from its patented crops. If 
replicated throughout the world, such enforcement of intellectual 
property rights would violate the human rights of hundreds of 
millions of farming families who depend on recycling seed for 
survival." This, Dawkins said, would constitute a direct violation of 
Article 1 of the Covenant on Economic, Social and Cultural Rights 
which stipulates that "In no case may a people be deprived of its own 
means of subsistence."

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.


Contacts:
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@ndf.vsnl.net.in
Peter Prove, Lutheran World Federation and INCHRITI. Tel: 
41.22.7916364; Fax: 41.22.7988616; E-mail: pnp@lutheranworld.org

For more information on the TRIPs Agreement and its impacts on the 
human rights to food and health, please contact:
Kristin Dawkins, Institute for Agriculture and Trade Policy Tel: 
612.870.3410; Fax: 612 870 4846; Email: kdawkins@iatp.org

                               *****

E/CN.4/Sub.2/2000/7
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






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