2009 Report of the Special Rapporteur on the right to health

11th HRC
31 March 2009

Analysis of precedential value

The spe­cial rap­por­teur on the right of every­one to the enjoy­ment of the high­est attain­able stan­dard of phys­i­cal and men­tal health is a human rights expert man­dated to report and advise on this human right. This man­date was cre­ated by the Com­mis­sion on Human Rights in April 2002 and has been peri­od­i­cally renewed since. This report con­sti­tutes an author­i­ta­tive source of expert prece­dent for the mean­ing and sig­nif­i­cance of key lan­guage. The incum­bent at the time of this report’s release was Anand Grover (India).

The report is based on Mr. Grover’s exchanges with “State rep­re­sen­ta­tives, the World Health Orga­ni­za­tion (WHO), the Joint United Nations Pro­gramme on HIV/AIDS (UNAIDS), the United Nations Pop­u­la­tions Fund (UNFPA) offi­cials and sev­eral civil soci­ety orga­ni­za­tions,” and the Com­mit­tee on the Elim­i­na­tion of Dis­crim­i­na­tion Against Women, and atten­dance at a series of AIDS- and rights-related con­fer­ences.

Used as precedent

access to health products

Flex­i­bil­i­ties were included in TRIPS to allow States to take into con­sid­er­a­tion their eco­nomic and devel­op­ment needs. States need to take steps to facil­i­tate the use of TRIPS flex­i­bil­i­ties.The Spe­cial Rap­por­teur there­fore rec­om­mends that devel­op­ing coun­tries and LDCs should review their laws and poli­cies and con­sider whether they have made full use of TRIPS flex­i­bil­i­ties or included TRIPS-plus mea­sures, and if nec­es­sary con­sider amend­ing their laws and poli­cies to make full use of the flex­i­bil­i­ties.Devel­op­ing coun­tries and LDCs should estab­lish high patentabil­ity stan­dards and pro­vide for exclu­sions from patentabil­ity, such as new forms and new or sec­ond uses, and com­bi­na­tions, in order to address ever­green­ing and facil­i­tate generic entry of med­i­cines.Devel­op­ing coun­tries and LDCs should adopt the prin­ci­ple of inter­na­tional exhaus­tion and pro­vide for par­al­lel impor­ta­tion with sim­pli­fied pro­ce­dures in their national laws.Devel­op­ing coun­tries and LDCs need to incor­po­rate in their national patent laws all pos­si­ble grounds upon which com­pul­sory licences, includ­ing gov­ern­ment use, may be issued. Such laws pro­vide straight­for­ward, trans­par­ent pro­ce­dures for rapid issue of com­pul­sory licences. There is also a need to revisit the 30 August deci­sion and pro­vide for a sim­pler mech­a­nism.Devel­op­ing coun­tries and LDCs should specif­i­cally adopt and apply pro-com­pe­ti­tion mea­sures to pre­vent the abuse of the patent sys­tem, par­tic­u­larly in regard to access to med­i­cines.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 and should be mind­ful of actions which may infringe upon the right to health.

access to health products, key population and community leadership

LDCs and devel­op­ing coun­tries should actively pro­mote the par­tic­i­pa­tion of indi­vid­u­als and com­mu­ni­ties in deci­sion-mak­ing processes relat­ing to TRIPS and TRIPS flex­i­bil­i­ties and con­duct impact assess­ments of the same.