Environmental Engineering Reference
In-Depth Information
market structure and thus influences economic interests and capabilities, forming
'new constellations of interest' that may in fact be detrimental to drug supply.
In short, the trIPS agreement is a product of extensive negotiations and thus
includes provisions that demonstrate where concessions were made, particularly for
developing countries and lDcs, which were concerned about its impact on drug
access. It contains provisions that may be used by governments to ensure that health
objectives are not compromised. but even though the text of the agreement suggests
the potential for governments to put health needs over trade needs, the reality for
many developing countries and lDcs is that they may not make use of the provisions
because of administrative, political, and knowledge barriers. the agreement itself
affects actors' interests as well as their capabilities for action. Still, the provisions
that potentially benefit governments demonstrate the potential health safety valves
are embedded in the agreement. these provisions have subsequently been supported
by a number of international institutions.
Challenges to the Primacy of the Paradigm of Commercial Interests
the trIPSagreement is an interesting hybrid of economic logic (support for industries
that do r&D) and social inclusions that offer some limited relief from the heaviness
of economic imperatives. the inclusion of health safety valves in the agreement
has been endorsed by the Un's economic and Social council, which analysed the
agreement for its health and human rights implications in 2002. of relevance here is
the aforementioned article 12 of the International covenant on economic, Social, and
Cultural Rights, which obliges 'States Parties … recognize the right of everyone to
the enjoyment of the highest attainable standard of physical and mental health' (Un
Office of the High Commission for Human Rights [UNHCHR] 1966). The CESCR
(2000) set out the content of this right in General comment no. 14. relevant to this
discussion are the obligations on states to promote a number of health objectives.
First, the convenant puts a positive obligation on states to promote research
with particular regard to diseases such as HIv/aIDS. Second, states must take into
account the particular situation of HIv/aIDS and other epidemics in the right to
health. third, the obligations related to the right to health require states 'to refrain
from interfering directly or indirectly with the enjoyment of the right to health. the
obligation to protect [the right to health] requires States to take measures that prevent
third parties from interfering with article 12 guarantees … [and] the obligation to
fulfil requires States to adopt appropriate legislative, administrative, budgetary,
judicial, promotional and other measures towards the full realization of the right to
health' (ceScr 2000, para. 33). Fourth, states and private actors are obliged to give
'due attention in international agreements and … States parties should take steps to
ensure that these instruments do not adversely impact upon the right to health' (para.
39). they also have international obligations to 'provide essential drugs' and to 'take
measures to prevent, treat and control epidemic and endemic diseases' (para. 43[d],
para. 44[c]).
