Australia, Chile and New Zealand reply to UN Rapporteur for Right to Health on TPP complaints

KEI has recently learned that 6 of 9 countries ignored a UN Special Rapporteur request to respond to the March 22, 2011 complaint regarding the TPP. We are also disappointed in the comments from the three that did respond. The UN process for dealing with such complaints is somewhat bureaucratic and secretive. Among the three countries that did respond, Australia, Chile and New Zealand, all defended the secrecy of the TPP negotiating text and asserted that the TPP would not violate the right to health. Excerpts from the three countries that did respond follow, but note always that six countries including the United States did not respond, and that the United States was in fact the primary target of the complaint.

Australia on Transparency

The Australian Government has not kept the TPP negotiations secret.

Dr Emerson has instructed negotiators to provide candid and detailed information on negotiations and draft texts, to ensure stakeholders are well placed and sufficiently informed to enable them to make submissions and representations on issues of concern to them, as the negotiations continue. As you would be aware, negotiating text often contains a range of ambit claims. It has no status until it is agreed by all parties. The Australian Government is not convinced that publicly releasing contested text would assist informed public debate on the issues. It is not normal international practice in free trade agreement negotiations to make texts publicly available until they are agreed.

Australia on right to health

We are not able to comment on other countries’ positions but, from Australia’s perspective, the Government has made abundantly clear that Australia will not support provisions in trade agreements that constrain our ability to regulate legitimately on social, environmental or other important public policy matters, including healthcare.

Retaining the ability to ensure access to quality, affordable medicines for Australian consumers is a priority, and the Government would not accept an outcome in the TPP that would negatively impact upon the integrity of of Australia’s public health system.

Chile on Transparency

TPP member would like to add that, as in all past and future trade negotiations, countries involved have the right to keep offers, drafts texts and proposals confidential, as these documents reflect the positions of one and/or more countries that are engaged in a particular negotiation.

Chile on Right to Health

Finally, with respect to your final question, in the case of Chile, we would like to clarify that the main objective of the Ministry of Health of our country is to improve the levels of public health, by developing a harmonized health system that focuses on people and access to medicines. This system should strengthen the different factors that affect public health and also provide for an appropriate access to the health care system. Through this system, it will be possible to ensure the right to a higher standard of health in our country.”

New Zealand on Transparency

Trade negotiations, like most policy processes involving sensitive issues, have both a public and a private component. New Zealand’s practice on the specific issues of observer access and release of text has varied according to the circumstances of each negotiation. Large multilateral processes tend by their nature to be more open, often making it hard to reach agreement on sensitive issues. The general approach of New Zealand and other international parties in smaller trade negotiations whether bilateral or plurilateral, is not to allow observers into the negotiating room not to release texts until the signature. This is the practice followed in the TPP negotiation, but outside of these parameters we have made substantial efforts to engage with stakeholders at each step of the process.

I have also addressed the ‘secrecy’ question in detail above. New Zealand’s approach to the public and private components of trade and other policy processes in the TPP negotiations, including around access to texts, is consistent with international practice.

New Zealand on the Right to Health

On the question of accuracy, the preceding information shows that the picture set out in the allegations you cite bears little resemblance to the reality of New Zealand policy and practice, including in the TPP negotiation. With regard to the other specific questions you mention concerning patent procedure, ex officio border measures, monopolies for life-saving medicines and higher medicines prices, I should just repeat that no New Zealand government would consider becoming party to a negotiated outcome that called into question either the right to health or access to essential medicines.

United States on on Transparency

No response

United States on on Right to Health

No response

Commentary

The notion that secret negotiations are the norm is of course not true in terms of multilateral negotiations on intellectual property rights at WIPO or the WHO, or even WTO negotiations on intellectual property rights issues, but it is unfortunately the tradition in bilateral and regional trade agreements. The assertion by Australia, Chile and New Zealand that they do not or will not support barriers to access to medicine can be seen as lacking candor, given the nature of the proposals tabled by the United States on patents and drug pricing, and the likelihood of harmful measures being included in the final agreement, giving U.S. objectives and power in the negotiations.

Comment by KEI

The UN's Special Rapporteur Anand Grover asked nine countries to respond to specific allegations that the TPP would undermine the right to the highest standard of health. Only three governments bothered to respond, each defending the secrecy of the negotiations and lying about or minimizing the expected impact of the negotiation on access to medicines. Apparently the United States -- the leading target of the complaint and the most aggressive proponent of of high drug prices -- did not respond to Grover's July 19, 2011 letter. In 2009, President Obama was awarded the Nobel Peace Prize, for "his extraordinary efforts to strengthen international diplomacy and cooperation between peoples." Apparently these "extraordinary efforts" do not extend to engagement with the UN's Special Rapporteur for the right to health on a topic that concerns life and death issues for millions of persons.

The responses by Australia and New Zealand on the issue of secrecy demonstrate how little each government respects its own citizens. When the Australian Government says it is "not convinced that publicly releasing contested text would assist informed public debate on the issues" you have to wonder how they arrive at this conclusion. Can you have an "informed public debate" on text that no one can see? New Zealand's statement that "in smaller trade negotiations whether bilateral or plurilateral . . . .not to release texts until the signature . . . is consistent with international practice" begs the question of whether or not the TPP can be considered one of the "smaller trade negotiations," and whether or not such secrecy is warranted at all for any trade agreement, or for every chapter and every paragraph in the TPP. As a practical matter, if Australia and New Zealand won't go on the record calling for the disclosure of the text, the Obama Administration will find it easy to maintain its policy of asymmetric access between big business and the public. We note that in the ACTA negotiations the European Parlliament forced the parties to disclose a copy of the negotiating text, and the Bush Administration published the entire text of the FTAA. Corporate lobbyists are always well informed, but public disclosure is done when governments recognize the legitimacy and value of an informed public.

James Love, Knowledge Ecology International, 27 September 2012.


Commentary by co-petitioners

The Chilean government’s answer to the UN Rapporteur for the Right to Health is ambiguous and misleading. In order to conceal the secret nature of the TPP negotiation and to ensure that no documentation is publicly available, the government declined to provide a clear answer. The fact is civil society has repeatedly requested access to TPP negotiating texts, but the Chilean government has denied access. In appeal, the Council for (Public) Transparency ordered the government to release supporting studies related to the negotiations, but it merely provided links to a few unrelated APEC documents dated back to 2009. But the answer is also misleading because it describes the role of Ministry of Health, but it omits the fact that the Ministry of Health has not been involved in negotiation in spite of the fact that several provisions of the TPP would seriously undermine access to medicines and public health in Chile.

Alberto Cerda Silva, Professor in Law, University of Chile Law School


Background

On 22 March 2011, Knowledge Ecology International (KEI), ten public interest groups and three law professors submitted a petition to Anand Grover, the Special Rapporteur for the United Nations on the Right to Health.

A copy of the petition is available on the Internet here: http://www.keionline.org/node/1099

The Special Rapporteur was asked to intervene in a regional trade agreement named the Trans-Pacific Partnership (TPP) Agreement. In particular, the parties filing the complaint charge that the negotiations on intellectual property norms, in terms of process and substance, threaten and violate the right of hundreds of millions of persons to the enjoyment of the highest attainable standard of health.

At the time of the complaint, parties to the negotiations included the governments of Australia, Brunei, Chile, Malaysia, New Zealand, Peru, Singapore, Vietnam and the United States. On 19 July 2011, the Special Rapporteur sent a communication separately to each of the nine governments drawing attention to the human rights concerns raised by the complainants. Australia, Chile and New Zealand were the only governments who responded to the Special Rapporteur's communique.

For the Special Rapporteur's communication to each of the nine countries, please click on the country links below.

Please find the responses of Australia, Chile and New Zealand. It should be noted that none of the responses by these three countries provided satisfactory answers to the technical issues raised by the Special Rapporteur including the elimination of pre-grant opposition procedures, the elimination of Section 3(d) type patentability requirements that seek to prevent evergreening of patents, and requirement of parties to "provide ex-officio border measures with respect to in-transit goods that are suspected of using ‘confusingly similar’ trademarks (a separate category from counterfeit products)".

The major elements of the communication from the Special Rapporteur to each of the nine countries are reproduced below.

I have the honour to address you in my capacity as Special Rapporteur on the right of everyone to the enjoyment of the highest attainable standard of physical and mental health pursuant to General Assembly resolution 60/251 and to Human Rights Council resolution 15/22.

In this connection, I would like to bring to your Excellency’s Government’s attention information I have received concerning According to the information received:

Since March 2010 several rounds of negotiations on the Trans Pacific Partnership (TPP) agreements have been held among the Governments of Australia, Brunei, Chile, Malaysia, New Zealand, Peru, Singapore, the United States and Vietnam. Intellectual property rights, including provisions for patents and the protection of regulatory test data on medical inventions, are reportedly on the agenda of the TPP negotiations.

It is alleged that the TPP negotiations have been conducted behind closed doors, without providing opportunities for persons, potentially affected by the TPP, to participate effectively and influence the outcome of the negotiations. Yet numerous entities from the private sector were allegedly provided with access to that information and could contribute to the negotiations.

Despite the alleged secrecy of the TPP negotiations, some information about the content of those negotiations was reportedly leaked. Accordingly, key parties to the negotiations proposed to eliminate ‘pre-grant opposition’ procedures. Those procedures are considered to be an important tool to prevent patent applicants from gaining patent monopolies based on weak or erroneous information, improve the quality and efficiency of patent office examinations, safeguard access to medicines and allow broad participation from civil society and other groups. It is alleged that alternative proposals discussed at the negotiations may not ensure the above-mentioned requirements and may limit the ability of developing countries to set patentability standards.

It is alleged that according to the negotiated TPP agreements parties would be required to provide ex officio border measures with respect to in-transit goods that are suspected of using ‘confusingly similar’ trademarks (a separate category from counterfeit products). In that context, it is alleged that differences in national policies on the standards for trademarks infringement involving medicines and geographically diverse trademark registrations would cause difficulties for legitimate generic manufacturers.

It is also alleged that some of the TPP’s intellectual property provisions would strengthen monopolies for life-saving medicines and create barriers for access to medicines. It is further alleged that new intellectual property standards would not only result in high prices for medicines but could also negatively impact the ability of developing countries to take positive steps towards ensuring the enjoyment of the right to health of their citizens.

I urge your Excellency’s Government to take all necessary measures to guarantee that the rights and freedoms of the aforementioned person(s) are respected and that accountability of any person guilty of the alleged violations is ensured. We also request that your Excellency’s Government adopts effective measures to prevent the recurrence of these acts.

Moreover, it is my responsibility under the mandates provided to me by the Human Rights Council, to seek to clarify all cases brought to my attention. Since I am expected to report on these cases to the Human Rights Council, I would be grateful for your cooperation and your observations on the following matters:

1. Are the facts alleged in the above summary of the case accurate?

2. Has a complaint been lodged?

3. Please provide the details, and where available the results, of any investigation, medical examinations, and judicial or other inquiries which may have been carried out in relation to this case. If no inquiries have taken place, or if they have been inconclusive, please explain why.

4. In the event that the alleged perpetrators are identified, please provide the full details of any prosecutions which have been undertaken; Have penal, disciplinary or administrative sanctions been imposed on the alleged perpetrators?

5. Please indicate whether compensation has been provided to the victim or the family of the victim.

I would appreciate a response within sixty days. I undertake to ensure that your Excellency’s Government’s response to each of these questions is accurately reflected in the reports I will submit to the Human Rights Council for its consideration.

Please accept, Excellency, the assurances of my highest consideration.

Anand Grover
Special Rapporteur on the right of everyone to the enjoyment of the highest attainable standard of physical and mental health

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Australia_23.11.11_(4.2011).pdf168.39 KB
Chile_24.11.2011_(2.2011).pdf81.94 KB
New_Zealand_08.08.11_(1.2011).pdf296.75 KB