The United Nations human rights framework is being brought to bear on intellectual property law, in the hopes that the weight of expert voices in human rights can lead IP regimes toward a better balance between the needs of industry and the needs of public policy.

The Working Group on the Right to Development, an intergovernmental political body, in August 2008 took on the task of examining two intellectual property-related development partnerships that could influence the work of policymakers in at least two UN institutions.

The two partnerships are: the World Health Organization (WHO) Intergovernmental Working Group on Public Health, Innovation and Intellectual Property (IGWG), and the World Intellectual Property Organization (WIPO) Development Agenda.

The examination is being carried out by a high level-task force, a small team of technical experts that acts at the behest of the working group. The task force was created with the intention of moving right to development discussions beyond political declarations from the working group into concrete progress. The task force held its annual meeting from 1-9 April. The task force secretary is Shyami Puvimanasinghe, from the Office of the High Commissioner for Human Rights (OHCHR). The coordinator of the unit on the Right to Development at OHCHR is Goro Onojima.

The task force has completed an initial review of the IGWG process, which included an independent consultation paper (IPW, United Nations, 3 April 2009), though it has plans to make a ‘return visit’ in the future to check on ongoing work.

Analysis of the Development Agenda is still in the planning phases. The task force is tracking preparations for a conference on IP and global challenges being hosted by WIPO 13-14 July, to see if attending the conference will be useful for its mandate. But to represent the right to development there, the task force must wait for a mandate from the working group, which meets for one week starting 22 June.

IP and human rights usually operate on different levels – an IP right is a temporary monopoly; a human right is seen as something universal and never-ending – but they can come into conflict.

The critical point with intellectual property rights and human rights, according to Stephen Marks, a public health professor at Harvard University who also chairs the high level task force, lies in resolving the longstanding tension between these two kinds of rights.

For example, if patent limits access to new technologies it could be construed to be an obstacle for the realisation of the human right to benefit from scientific progress, said Marks. At the same time, IP has a valuable function in stimulating innovation that leads to that scientific progress, he added.

Defining Development: Human Rights Criteria

The high level task force is comprised of five experts, currently: Marks, the chair; 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). It also includes international agency observers from the UN Conference on Trade and Development (UNCTAD), World Bank, the UN Development Programme, the UN Educational, Scientific and Cultural Organisation (UNESCO), the International Monetary Fund (IMF), and the World Trade Organization (WTO).

It carries out its reviews of development partnerships using a set of criteria [doc, Annex II] for evaluating partnerships.

The criteria analyse: structural framework, for example whether a partnership’s institutions contribute to “an enabling environment for sustainable development” or promote good governance; process, for example the promotion of gender equality or provisions for meaningful stakeholder consultation; and outcome, e.g. whether the partnership achieves “improvement in the well-being of populations and all individuals” in accordance with the declaration on the right to development.

The task force also has a mandate to draw up a set of “operational sub-criteria” [pdf] that would include more specific, concrete provisions. The work of the task force is submitted to the Working Group on the Right to Development, which takes recommendations from the task force but is not bound by them in making decisions.

The criteria are not yet finalised, and information gleaned from the process of analysing partnerships is being used to refine them. The exercise has a deadline of 2010 to come up with a set of final criteria. Future work past the 2010 deadline is an area of contention.

A 2007 working group report [pdf] said that future work might “take various forms, including guidelines on the implementation of the right to development, and evolve into a basis for consideration of an international legal standard of a binding nature, through a collaborative process of engagement.”

If a legal convention on the right to development were to be formed, the high level task force would likely become the drafting body for international legislation, as it is the expert body on the issue, according to a source familiar with the negotiations.

Susan Mathews, who was previously the secretary of the working group, said there are several potential outcomes of this evaluation process. After the working group presents programmes of developmental assistance and other partnerships to the Human Rights Council, the council adopts resolutions endorsing the findings of the working group, providing it legal backing.

Alternatively, the criteria of the working group could be adopted as a soft law mechanism, providing guidelines for implementation and perhaps more flexibility than international law as presently interpreted would allow, she said. At the same time, any set of criteria needs to have a practical application.

“It is not clear what the future beyond the third phase due to be concluded in 2010 will be, and how the working group will continue its work and whether the task force will continue in this form or take another. However, it is essential that the work done till that date is carried on in some form or it will not have a sustainable, lasting impact or value,” Mathews explained.

Sources said that a group of countries from the global South referred to as the Non-Aligned Movement and the Group of African countries would like to see a binding international agreement, in recognition of international obligations and responsibilities pertaining to the right to development. For countries in the Non-Aligned Movement, the right to development has a distinct “international dimension.”  With regard to the right to development acquiring legal character, developing countries are the primary actors making the push.

Industrialised countries, by contrast, prefer the right to development to fall under the auspices of national governments, and thus have called for more tempered language regarding binding legal norms, according to sources.

The human rights paradigm and its values have already begun to shift the world of intellectual property in the health sector, said Marks. The 2001 WTO Doha Declaration on Public Health, which outlines flexibilities in intellectual property rights trade rules that can be used to better serve public health needs, as well as the so-called “paragraph 6” solution which provides further flexibilities aimed at serving countries that lack the manufacturing capacity to produce needed medicines, are both examples of this shift, he added.

The June meeting of the working group will indicate the next steps on the intersection of IP and public interest goals for the human rights experts.