Jul 272015
 
Image:  EFF (CC-BY)

Image: EFF (CC-BY)

This post contains a brief summary of, and excerpt from, a report published by the Third World Network. Click here for the full report.  (eds.)

This document summarises some of the ways in which the Trans-Pacific Partnership Agreement (TPP) can harm human rights. The analysis below only examines the impact on recommendations and comments by United Nations (UN) Special Procedures mandate-holders[1] and other United Nations human rights bodies,a so there are other human rights which are likely to be adversely affected by the TPP which are not covered here.

In a statement on the TPP and other free trade agreements, 10 UN Special Rapporteurs/Independent Experts expressed concern about the secret way in which they have been negotiated and their potential adverse impacts on human rights (including the rights to life, food, water and sanitation, health, housing, education, science and culture, improved labour standards, an independent judiciary and a clean environment).[2]

The relevant TPP provisions which go beyond the World Trade Organization (WTO) rules are outlined in Annex 1. Since the TPP governments have refused to release the text,[3] this assessment is based on other publicly available documents, see below. While other WTO, free trade agreement (FTA) and bilateral investment treaty (BIT) disputes are unlikely to set precedents for TPP interpretation, they are often likely to be followed, so some of these interpretations have been noted.

Excerpt, pages 42-43

Human rights body comment or recommendation How TPP provision affects human rights
The right to health includes access to essential medicines. [243] ‘States are bound to promote the right to health through the ensuring access to affordable treatments. . .’ [244]‘the World Bank has noted that IPRs can sometimes prevent the distribution of potential international public goods helpful to poor countries, which can seldom afford the prices charged by patent owners’[245]‘there is evidence to suggest that the effect of patents on affordability is significant with drug prices falling sharply when generic substitutes enter a market to compete with drugs upon patent expiry’[246]‘According to UNAIDS, the high prices of HIV treatments are due, in part, to patent protection which allows control over their manufacture and sale’[247]

‘Developing countries and LDCs should not introduce TRIPS-plus standards in their national laws. Developed countries should not encourage developing countries and LDCs to enter into TRIPS-plus FTAs’[248]

The study above noting the impact on Vietnam of agreeing to TRIPS+ in the TPP states that ‘Similar price impacts can be expected for other countries participating in the TPPA, though these are less economically vulnerable than Vietnam.’[249] Even in countries which are richer than Vietnam, medicines can be difficult to afford for governments who subsidise them or patients who pay out of pocket. For example biologics are increasingly important medicines. At the monopoly prices for biologics (which more of them would have for longer if the provisions proposed in the TPP are accepted, see Annex 1): in 2007, Americans spent $286.5 billion for prescription drugs, $40.3 billion of which was for biologic drugs’[250], biologics ‘are eventually going to represent more than 50 percent of spending in the next few years[251] and ‘The average daily cost of a brand name biologic product is approximately 22 times greater than a traditional drug’[252].‘12 out of the 13 new cancer drugs approved last year were priced over 100,000 dollars annually. And some drugs are coming to market with prices closer to 400,000 dollars.’[253] One biologic medicine costs about $569,000/ patient/year, often for a lifetime.[254]The leaked TPP IP chapter text, see Annex 1, shows that developed countries are still seeking TRIPS-plus provisions in this FTA.
‘the State has to do all it reasonably can to make an essential medicine available in its jurisdiction e.g. by using, where appropriate, the TRIPS flexibilities, such as compulsory licences and parallel imports. . . Clearly, the affordability of essential medicines raises crucial issues, such as drug pricing, compulsory licences, parallel importing, and the reduction of import duties. . . The exclusion of competitors as a result of the grant of a patent can also be used by patent holders as a tool to increase the price of pharmaceuticals. High prices can exclude some sections of the population, particularly poor people, from accessing medicines. Given that the right to health includes an obligation on States to provide affordable essential medicines according to the WHO essential drugs list, intellectual property protection can lead to negative effects on the enjoyment of the right to health. In other words, in some cases intellectual property protection can reduce the economic accessibility of essential medicines.’ [255] The implementation of patent term extensions alone (something the USA is proposing in the leaked TPP IP chapter, see Annex 1) has already cost Australian taxpayers more than $200million/year.[256]In addition to the impact of the intellectual property chapter, see above, there are concerns that the leaked TPP transparency chapter annex (see Annex 1 below) could restrict the ability of government medicine reimbursement schemes such as Australia’s Pharmaceutical Benefits Scheme[257] and New Zealand’s PHARMAC[258] to keep medicine prices affordable.

In 2012, 16% of Australians already experienced a cost-related access problem (did not fill or skipped a prescription, did not visit a doctor, or did not receive recommended care) and the health impact assessment noted that higher copayments discourages medicine use and higher downstream costs and prolonged illness.[259]

‘traditional medicines have been appropriated, adapted and patented with little or no compensation to the original knowledge holders and without their prior consent.This raises significant issues, not only in the field of the right to health, but also for the cultural rights of these communities and their members’[260] If accepted, the proposal in the leaked TPP intellectual property chapter to allow patents on plants and animals would make it easier to appropriate and patent traditional medicines in TPP countries. The proposed traditional knowledge and genetic resource provisions would not be sufficient to counteract this, see Annex 1 intellectual property chapter section and there is unlikely to be a sufficient culture exception in the TPP, see investment and exceptions chapters in Annex 1.

 

NOTES:

1 As listed here: http://www.ohchr.org/EN/HRBodies/SP/Pages/Themes.aspx
2 http://www.ohchr.org/EN/NewsEvents/Pages/DisplayNews.aspx?NewsID=16031&LangID=E@
3 https://ustr.gov/sites/default/files/TPP-letter-on-confidentiality.pdf and responses to Special Rapporteur on the Right to Health, http://www.ohchr.org/Documents/HRBodies/SP/A.HRC.19.44.EFSonly.pdf, https://spdb.ohchr.org/hrdb/21st/USA_02.07.12_%2813.2011%29.pdf

* * *

243 http://www.ohchr.org/Documents/Publications/Factsheet31.pdf, A/61/338
244 E/CN.4/Sub.2/2001/13
245 E/CN.4/Sub.2/2001/13
246 E/CN.4/Sub.2/2001/13
247 E/CN.4/Sub.2/2001/13
248 A/HRC/11/12
249 http://papers.ssrn.com/sol3/papers.cfm?abstract_id=2536254
250 http://www.ftc.gov/sites/default/files/documents/reports/emerging-health-care-issues-follow-biologic-drug-competition-federal-trade-commission-report/p083901biologicsreport.pdf
251 from 2014 FTC workshop on biologics: http://www.ftc.gov/news-events/events-calendar/2014/02/follow-biologics-workshop-impact-recent-legislative-regulatory (has transcript)
252 http://www.gphaonline.org/media/cms/Lttr_to_FDA_on_biosimilars_INN_June_2014.FINAL.pdf
253 from 2014 FTC workshop on biologics: http://www.ftc.gov/news-events/events-calendar/2014/02/follow-biologics-workshop-impact-recent-legislative-regulatory (has transcript)
254 http://www.fiercepharma.com/story/why-does-alexions-soliris-cost-500k-plus-uk-gatekeepers-want-know/2014-03-04
255 E/CN.4/2004/49/Add.1
256 http://hiaconnect.edu.au/wp-content/uploads/2015/03/TPP_HIA.pdf
257 See for example http://hiaconnect.edu.au/wp-content/uploads/2014/02/TPP-policy-brief-FINAL-17-FEB-2014.pdf
258 http://infojustice.org/archives/6039
259 http://hiaconnect.edu.au/wp-content/uploads/2015/03/TPP_HIA.pdf
260 E/CN.4/Sub.2/2001/13

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