The 18 to 23 July International AIDS Conference held in Vienna this year, subtitled ‘Rights Here, Right Now’ was a platform to raise, yet again, the values-based universal and indivisible human rights and the political commitments that inform our response, globally, to the unacceptable level of new HIV infection and mortality from AIDS. At the same time the shrinking provision of aid to low income countries and persistence of avoidable inequities globally in the progressive realisation of these rights starkly raises the reality of the competition between social rights to health, and private rights to intellectual property.

International aid to developing countries has declined in the past two years, with a fall of US$1.1 billion in high income country support for developing country AIDS programmes between 2008 and 2009, according to UNAIDS and the Kaiser Foundation. At the same time rich countries continue to pursue with vigour stronger protections for intellectual property rights (IPR) – in what is now known as the 'IP Enforcement Agenda’. The effects of strong IPR protection may have been abated in earlier years by aid support for the purchase of patented medicines, but low income countries seeking to meet needs in the current financial squeeze by procuring cheaper options or initiating their own local production of medicines, including of anti-retrovirals, face an unabated challenge to their implementing even those measures that are legal under the World Trade Organisation's (WTO's) Trade-Related Intellectual Property Rights (TRIPs) agreement.

The fall in funding to AIDS has itself been challenged by many, including the President of the International AIDS Society, Dr Julio Montaner, and Stephen Lewis (former UN special envoy for HIV/Aids in Africa). As Dr Montaner said: ‘International governments say we face a crisis of resources, but that is simply not true: The challenge is not finding money, but changing priorities. When there is a Wall Street emergency or an energy crisis, billions upon billions of dollars are quickly mobilized. People's health deserves a similar financial response and much higher priority.’

At the same time the fall in funding has made very clear the need to implement long-standing calls by progressive civil society to put in place more predictable means of global financing, and for African countries to maximise use of TRIPS flexibilities and to advance local production of pharmaceuticals. Yet is it precisely in this arena that measures are being taken to strengthen and enforce intellectual property rights and reduce the flexibilities needed by developing countries. There have been numerous examples of this, included those reported in prior issues of the EQUINET newsletter.

Measures to reinforce IPRs include those in regional and bilateral agreements provisions that exceed TRIPs requirements and reduce the flexibilities provided by TRIPS (TRIPS plus); and also pressures on African countries not to exercise rights to compulsory licensing or parallel importation. The EU, which stated its commitment to access to medicines, has pursued measures that exceed TRIPs obligations in its trade agreements with developing countries including with India, in spite of an EU Parliamentary resolution on 12 July 2007 (P6_TA(2007)0353) urging it not to do so. There have been seizures in the EU of generic medicines in transit, not destined for Europe, performed at the insistence of EU pharmaceutical companies for allegedly being counterfeit. The EU has contributed to work on anti-counterfeiting legislation in East African countries that has raised new IPR restrictions on legitimate generic medicines, defining them within the scope of counterfeits (see EQUINET Newsletter 111). Similar seizure laws are being supported through a global initiative called IMPACT.

Significantly at the July AIDS conference, attention was also drawn to the use by the USA of its 'Special 301' law which it uses to list and ‘shame’ countries for violating US commercial interests by not providing sufficient protection to IPRs. Health Gap, the Foundation for AIDS Rights and the Thai Network of People Living with HIV/AIDS with others have filed a complaint with the UN's Special Rapporteur on the Right to Health, Anand Grover, alleging that use of this law reduces access to medicines in low and middle income nations and violates international human rights obligations.

Global institutions appear to be offering weak protection to developing countries in their efforts to assert their rights, and the rights and flexibilities provided for in global treaties. In the 2006/7, during the WHO's negotiations on Public Health, Innovation and Intellectual Property (for so-called ‘neglected diseases’) efforts were made to contain the challenge to IPRs from neglected diseases by including a proposal to limit the scope of the discussion to only 14 diseases, a due process violation as no country proposed this for inclusion in the negotiating text. The IMPACT programme referred to earlier has had an association with WHO (world Health Organization) that was heavily criticised at the 2010 World Health Assembly. The WTO Dispute Settlement Body (DSB), instead of the defending the flexibilities provided in its own instruments through multilateral measures, has allowed the US room for unilateralism on its Special 301 law in a January 1999 dispute raised by the European Community. This was a decision that Chakravarthi Raghavan of the South-North Development Monitor termed as blatantly based on politics, rather than legal interpretation.

Almost a decade since the 2001 Doha Declaration on TRIPS and Public Health made the important step of asserting more clearly the rights countries already enjoyed to promote access to medicines, few countries have been able to use the rights enshrined in it. The Declaration was needed then because poor countries were precluded from using these rights by the rich countries. The cases cited in this editorial suggest that the last decade has been one of countless efforts to restrict and reverse those rights.

This is in a context where the latest WHO treatment guidelines recommend that people with HIV should start treatment earlier, bringing treatment for people in developing countries in line with treatment in wealthy nations, to help prevent transmission of HIV. Of the 14 million people needing treatment, only 4 million currently receive it. While private rights to IPRs are being vigorously enforced, who is vigorously enforcing the rights to life and health of these 10 million people, or the millions more who need medicines for other common diseases, including chronic conditions like diabetes and hypertension?

And where will we be ten years from now, with an unabated and expanding IP enforcement agenda? The evidence from recent years outlined here suggests that basing future access to medicines on a benevolent global market, or even one that prioritises human rights in one region over commercial rights in another may be wishful thinking. There seems to be no alternative but for African countries to set a vision, and to develop, negotiate, build space for and implement strategies for their own local production of medicines, to meet their own market and population needs, while simultaneously fending off an IP enforcement agenda that does not meet their interests, in all its guises.

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* This article first appeared in the EQUINET Newsletter 114, September 2010. The full newsletter can be found at http://www.equinetafrica.org/newsletter
* Riaz K. Tayob is SEATINI’s South Africa representative.
* Please send comments to [email protected] or comment online at Pambazuka News.