The World Health Organization global strategy on health and intellectual property includes powerful and potentially paradigm-shifting elements, but it also has notable shortcomings for human rights, says a new document prepared for the United Nations group responsible for the right to development.

Part of the Office of the High Commissioner for Human Rights (OHCHR), the Working Group on the Right to Development has a mandate to evaluate development partnerships – such as the global strategy, or the World Intellectual Property Organization Development Agenda – from a human rights framework. [Correction: the Working Group on the Right to Development is an intergovernmental body and is thus not part of OHCHR, though OHCHR provides administrative and technical support to the body].

The document, available here, will go to a meeting of the high-level task force on the implementation of the right to development, which provides independent expertise to the working group, and which is meeting in Geneva 2 to 9 April.

The global strategy does well, the document says, in emphasising the importance of using the full extent of flexibilities under the World Trade Organization Trade-Related Aspects of Intellectual Property Rights (TRIPS) agreement for public health purposes, and in promoting the need for innovation on neglected diseases – including a “promising initiative” of a working group on financing for such innovation.

But the strategy is weakened by its failure to specifically warn against the implementation of so-called “TRIPS-plus” measures – reaching beyond TRIPS commitments – in bilateral trade agreements that could impede the realisation of the right to health, the report adds. It is also weak on the duty of member states to promote sustainable financing mechanisms, recommending only that existing financing mechanisms be used rather than recommending pathways for additional measures, and focussing only on public-private partnerships when detailing existing strategies, rather than exploring different kinds of financing measures.

The WHO Global Strategy and Plan of Action on Public Health, Innovation and Intellectual Property was approved in May 2008, and sets forth the health agency’s plan to address inequities in access to health products and health innovation as related to the IP system (IPW, WHO, 29 May 2008).

The right to development group’s [clarification: refers to the task force] 2008-2010 work plan includes a mandate to assess global partnerships on basis of their effect on access to essential medicines, and on transfer of technology. In that vein, the new document – written by an expert external to the UN – evaluates the WHO global strategy, and the Intergovernmental Working Group (IGWG) process that led to it, on the grounds of the right to health, including access to medicine, and the right to benefit from scientific progress.

It was authored by University of Toronto postdoctoral fellow Lisa Forman, a specialist in human rights and public health at the university’s Munk Centre for International Studies.

The Human Rights Evaluative Process

OHCHR is the UN agency set up to identify and speak out against human rights violations. The Working Group on the Right to Development was established in 1998 to “monitor and review progress made in the promotion and implementation” of the rights described in the 1986 UN declaration on the right to development.

It does this through the use of a set of criteria, detailed in the second annex of this document [doc], a January 2008 report of the high level task force.

The high level task force on the right to development is comprised of five independent experts, and currently includes: Chair Stephen Marks of the Harvard School of Public Health (US), Nico Schrijver of Leiden University (Netherlands) Grotius Centre for International Legal Studies, Sakiko Fukuda-Parr of the New School (US), Raymond Atuguba of the Law Faculty at the University of Ghana, and Flavia Piovesan of the Faculty of Law at Pontifical Catholic University of São Paolo (Brazil).

IGWG Process From A Human Rights Perspective

For a process to properly ensure the right to development, it must necessarily include the effective participation of key stakeholders in the realisation of that right. Participation is, Forman’s report says, “intimately connected to adherence with the other principles underlying the right to developing, including non-discrimination, transparency and accountability.”

The report recognises the participation of several international civil society groups as well as the use of public, web-based hearings and consultations, as key to achieving effective participation. But it notes a dearth of national civil society groups, and questions whether an internet-based format where submissions must be typed in English is conducive to genuine participation. Delegation size – generally smaller in less developed countries – also affected full participation in the breakaway working group sessions that were part of the process.

Delegation of tasks and accountability is somewhat weak in the global strategy, with the primary actors being “governments” – with little specification as to differing responsibilities between developing and developed countries – and with language like ‘request,’ ‘invite,’ and ‘urge’ tempering calls for particular actions. Further, indicators for success fail to set defined targets and, while capable of counting the number of measures taken in the name of public health, are incapable of measuring the impact of such measures.

Also “notably absent,” the report says, “are any indicators measuring the production of new medicines, or the proportion of the population with access to existing medicines,” a “significant deficit” in a strategy aimed at achieving just that.

Right to development criteria could augment the IGWG and global strategy, which might address rights implicitly but contains no explicit acknowledgment of such rights. The report suggests several revisions on right to development principles [Clarification: an informed source suggested describing the report as suggesting "additional right to development criteria related to access to essential medicine"], including the addition of elements calling for: assessment of TRIPS-plus measures and their impact on health; assurance that access to essential medicines is done according to the right to health; and a requirement that pharmaceutical companies integrate human rights into their business strategies.

A human rights review of the World Intellectual Property Organization Development Agenda is planned in the near future.