Trade Related Aspects of Intellectual Property Rights (TRIPS): At the Intersection of Health and Human Rights

2013 Lipi Mishra 100x150The past few weeks have been busy for delegations from around the world preparing to attend the World Trade Organization (WTO) TRIPS Council Meeting (hosted in Geneva from June 11 to 12). It has been particularly frantic for member countries categorized as least developed countries (LDCs), a category to which Uganda belongs.

As a cursory background on the issue, the TRIPS (Trade Related Aspects of Intellectual Property Rights) agreement essentially stipulates that countries must implement certain standards of patent protection, copyrights, trademarks, and other forms of intellectual property. Thus, the agreement seeks to protect and enforce intellectual property rights on a global level. However, there is a provision for flexibilities in the TRIPS agreement for member countries that are LDCs. The flexibilities provide these countries with a renewable exemption from TRIPS obligations. With such exemptions, LDCs are given policy space to overcome capacity constraints in the hopes that they will be able to develop a viable technological and legal base and then start enforcing TRIPS when they have the resources to do so.

Where the problematic issue arises is that the period of the last extension granted to LDCs is set to expire on July 1st, 2013 and certain WTO members have expressed resistance at granting a further extension of anything longer than 5 to 7 years for LDCs. LDCs, with the support of other countries, have opposed this position and are lobbying for more time so that they can overcome the constraints that prevent them from creating a viable technological base and enforcing IP laws.

CEHURD’s role in this issue has been formative in spearheading a movement to lobby the appropriate actors on behalf of civil society to grant LDCs an extension. Last week, CEHURD celebrated a few successes in its fight for an extension on the TRIPS deadline. First, CEHURD along with the Southern and Eastern African Trade Information and Negotiations Institute (SEATINI) successfully petitioned the East African Legislative Assembly (EALA) to pass a resolution urging WTO member countries to grant a TRIPS extension for LDCs. Then, before the TRIPS Council meeting even convened, the WTO announced that an 8 year extension for LDCs had been granted; a marginal victory for LDCs, but a victory nonetheless.

Press Conference held at the CEHURD Office on the LDC Request for an extension on TRIPS (Trade Related Aspects of Intellectual Property) Obligations.

Press Conference held at the CEHURD Office on the LDC Request for an extension on TRIPS (Trade Related Aspects of Intellectual Property) Obligations.

So, what are the implications of these issues on human rights? Well, intellectual property law, in general, is at an interesting juncture with respect to the right to health. Access to medicine issues are particularly pronounced in developing countries, like Uganda, where there is a high disease burden but limited financial resources to address that burden.

Many LDCs, including Uganda, where HIV and TB are rampant, rely on the importation of generic medicines to meet the health needs of their population. Intellectual property laws can end up acting as a regulator and restrict the importation of generic medicines into these countries, which is why Uganda and its fellow LDCs rely on TRIPS flexibilities. LDCs, the poorest countries in the world, are protected from opening their weak economies to monopoly protections for IP-based multinational corporations. Without those flexibilities, strict IP laws can inhibit the wide dissemination of generic medicines to populations that need them the most. Even more broadly, such IP laws may render many essential public goods including educational resources and green technologies unaffordable.

This whirlwind of issues has elucidated to me just how complex human rights issues can get, especially when issues of trade, intellectual property, and health are factored in. On the one hand, there are apparent human rights issues that need to be addressed if an individual cannot access potentially lifesaving antiretroviral therapies to manage their HIV as a result of overly stringent IP laws. On the other hand, the right of pharmaceutical companies to enforce their patents in order to thrive is also a concern that needs to be acknowledged.  Policy and advocacy work tends to recognize the range of these issues and address them by concurrently lobbying the government for policy reform and also eliciting support from other facets of civil society.

Despite the fact that the extension on TRIPS flexibilities has been granted, the battle is hardly over. Rather, the real heavy lifting is about to start revving up. Uganda, along with its LDC counterparts, must continue to create the necessary legal infrastructure around intellectual property law and accelerate the process of overcoming capacity constraints by establishing a sound and viable technological base.

There is never a dull day at CEHURD’s human rights advocacy department. With the conclusion of the TRIPS Council meeting, the CEHURD team is already wading through the field for its next hot-button issue.

Strategic Litigation and Societal Engagement: A Creative Recipe for Pushing Forward Health and Human Rights Law in Uganda

2013 Lipi Mishra 100x150Greetings! I report to you from Kampala, Uganda – a city unlike any I’ve ever encountered. While it took a few days to acclimatize to the hustle and bustle of boda bodas (motorcycle taxis), mutatus (mini buses) and the perpetual periods of sizzling heat, I’m happy to report that my bearings are now on straight. I’m in Kampala working with the Centre for Health, Human Rights and Development (CEHURD), an indigenous Ugandan NGO that addresses a wide array of issues pertaining to the enforcement of human rights and the jucticiability of the right to health.

My first two weeks at CEHURD have been nothing short of fantastic. I’ve had the unique opportunity to go to the Ugandan High Court to report on a trial (more on this later), met with a member of the East African Legislative Assembly at the Ugandan Parliament for a briefing on recent changes to TRIPS agreements (Trade Related aspects of Intellectual Property rights), and partook in a meeting for the Coalition to Stop Maternal Mortality in Uganda which brought Ugandan NGOs together to discuss issues of access to safe and legal abortions, contraceptives, and Uganda’s progress on the UN’s Millennium Development Goals.

What is particularly intriguing about CEHURD is its creative approach to driving forward human rights law. Not only does it conduct policy research, but it also engages in strategic litigation – a concept that I am only recently familiarizing myself with. Strategic litigation entails the careful selection of cases to bring before the court in order to utilize the judiciary to push forward changes in the law. Important factors that serve as an impetus for strategic litigation success include opportunistic timing (i.e. is the issue politically relevant? Can courts handle the issue?), suitable and compelling facts, and appropriate legal resources to actually carry out the case.

Civil Suit No. 111 is one such example of strategic litigation being carried out by CEHURD. Proceedings for this case began on May 17, 2013. The case was brought before the Ugandan High Court by CEHURD on behalf of the family of Nanteza Irene who died in labour at Nakaseke Hospital as a result of being allegedly deprived of medical attention for almost 10 hours.

CEHURD has taken on this case in order to trigger Constitutional issues of rights to life, health, freedom from inhumane and degrading treatment, and equality. While the case is currently ongoing, the legal community eagerly awaits this ruling as it can have a great deal of implications for health policy, resource distribution, and accountability in healthcare settings.

CEHURD also pushes forward issues of human rights and the justiciability of the right to health through policy and advocacy – a route that is many of us are more familiar with. The combination, however, of strategic litigation, research, and advocacy creates a powerful arsenal in identifying and addressing human rights issues in a way that taps into legislative, judicial, and broader societal spheres. At any given moment, CEHURD is conducting a number of activities ranging from engaging members of civil society, working on pro bono cases, organizing rallies and demonstrations, or petitioning the government on contentious bills. Engaging diverse elements of society has proven to be quite successful in a host of other settings that have sought to push forward the rights of women, children, and LGBTI communities, and thus, the replication of the model here in Uganda with respect to health issues is already demonstrating exciting promise.

While the nexus between health and law may not necessarily be intuitive, I’d like to devote my summer to exploring, articulating, and emphasizing that an important overlap does, in fact, exist between these two spheres.  In light of this overlap, the right to health should be justiciable just like any other right; this is a sentiment echoed by the former Secretary-General of the United Nations, Kofi Annan who said, “…health will finally be seen not as a blessing to be wished for, but as a human right to be fought for.” The combination of diverse activities that combine strategic litigation, research, advocacy, and civic engagement is a recipe that I believe will strongly equip change-makers in this fight.

To find out more about CEHURD, visit their website: http://www.cehurd.org/

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