With implementation of the World Health Organization strategy on intellectual property and innovation beginning in earnest, international experts this week debated how human rights could be infused into global health strategies – including the possibility of new international agreements on research and development – and whether WHO is up to the task.

WHO Director General Margaret Chan said in a recent speech “we have long had to sell health to the highest bidder,” a quote highlighted by Andrew Clapham, director of the Geneva Academy of International Humanitarian Law and Human Rights.

Clapham said health care has had to be sold to ministries of finance as an investment, as human capital, and as an engine for productivity, when “in a better world health would be marketed for its own sake, as a basic human right.”

Clapham was speaking at a book launch and symposium on 23 June entitled, “Realizing the Right to Health: Whose Role is it Anyway?”

The connection between intellectual property rights and the promotion of innovation in a market economy and the health considerations that might mitigate against overly stringent IP policies has increased the profile of public health, said Gian Luca Burci, general counsel at WHO, speaking in his personal capacity at the event.

The WHO global strategy and plan of action on public health, innovation and intellectual property “will move more into full implementation mode now,” a WHO official told Intellectual Property Watch [note: the official's name has been removed]. The small team managing the global strategy had – in the year since its adoption in May 2008 – spent most of their energy on finishing outstanding parts of the negotiation, he said. But with the text complete as of the late May World Health Assembly (IPW, WHO, 22 May 2009), work can turn to actual implementation.

But the WHO is reluctant to take the leadership role in the more political issues. In the midst of the “growing political importance of health,” said Burci, WHO has been “a little shy in proclaiming the right to health at a policymaking level.” This shyness is due in part to the human right to health being seen as controversial, as potentially involving a political fight, he said. At the May Health Assembly, members agreed to remove the WHO from the list of stakeholders for a proposed biomedical treaty on R&D against the earlier protestations of some developing countries.

The right to health is also sometimes erroneously equated with the right to health care, Burci said, which is not a popular idea in some influential countries at WHO.

New R&D Treaty or Stick with TRIPS?

Research and development has always been an “awful challenge,” said Carole Presern of the GAVI Alliance, a public-private partnership focussed on global health issues. It is necessary to be “more serious about how it is to be funded and the incentive mechanisms around it.”

But Presern asked whether a new treaty would solve the problem. Debates over a proposed R&D treaty temporarily stalled negotiations during the world health assembly, as WHO’s role in such a negotiation was questioned (IPW, WHO, 21 May 2009).

“It is clear that we have a lot more ease creating treaties that restrict access,” said Tido von Schoen-Angerer, executive director of the Campaign for Access to Essential Medicines at Médecins Sans Frontières (MSF). “TRIPS is the current R&D treaty. We’re going to have an anti-counterfeit treaty that has potential implications.” It will be “harder to get one that ensures access.”

But ensuring access is particularly critical now, said Schoen-Angerer.

A cost explosion could be on the horizon for drug procurement agencies, he said. Now that India has implemented the World Trade Organization Trade-Related Aspects of Intellectual Property Rights (TRIPS) Agreement, it is unclear where the next generation of drugs – and generic counterparts – will come from.

The current crisis with multiple-drug resistant tuberculosis – complex and difficult to treat – is a case in point. This was “a foreseeable crisis,” said Schoen-Angerer. “The background to the current situation is decades of R&D neglect because there was no market” for those medications.

There is a unique opportunity now with an expert working group under the auspices of WHO currently tasked with finding innovative R&D financing plans, he added.

The expert working group was one of the key outcomes of the WHO global strategy and plan of action, and will hold its second meeting since its May 2008 mandate, from 29 June to 1 July, according to sources. The topic of an R&D treaty might come up in the context of the working group.

“If WHO should be a negotiating forum for an R&D treaty I can’t say but I could see it being split open by a political debate for years and years,” said Burci.

There was a lot of resistance to the treaty, said Burci, who speculated that the reluctance from developed countries came from worry about regulation in an area which has until now been left to market rules. Such rules, he added, do not work well for neglected diseases.