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E/CN.4/Sub.2/2000/7
Commission on Human Rights Sub-Commission on the Promotion and Protection of Human Rights Fifty-second session [31 July - 18 August 2000] 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 [Adopted without a vote]
BIO-IPR docserver
TITLE: United Nations Body Warns of Conflicts between Intellectual Property Rights and Human Rights Could Influence Patents for Drugs, Biotech Seeds AUTHORS: Miloon Kothari and Peter Prove (INCHRITI) and Kristin Dawkins (IATP) PUBLICATION: Press Release DATE: 22 August 2000
August 22, 2000
Press Release
UNITED NATIONS BODY WARNS OF CONFLICTS BETWEEN INTELLECTUAL PROPERTY RIGHTS 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.
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) 462 84 92 E-mail: hichrc(at)ndf.vsnl.net.in
Peter Prove Lutheran World Federation and INCHRITI Tel: (41-22) 791 63 64 Fax: (41-22) 798 86 16 E-mail: pnp(at)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: (1-612) 870 34 10 Fax: (1-612) 870 48 46 Email: kdawkins(at)iatp.org
GOING FURTHER (compiled by GRAIN)
J. Oloka-Onyango and Deepika Udagama, "Globalization and its
impact on the full enjoyment of human rights", Preliminary
report, Subcommision on the Promotion and Protection of
Human Rights, Commission on Human Rights, United Nations,
E/CN.4/Sub.2/2000/13, 15 June 2000.
http://www.unhchr.ch/Huridocda/Huridoca.nsf/TestFrame/21a92
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Robert Evans, "Report for UN Calls World Trade Body
'Nightmare'", Reuters, 11 August 2000
http://dailynews.yahoo.com/h/nm/20000811/wl/un_wto_dc_1.htm
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