US-PERU FREE TRADE PACT NEGOTIATIONS: SPECIAL RAPPORTEUR ON RIGHT TO HEALTH REMINDS PARTIES OF HUMAN RIGHTS OBLIGATIONS

13 July 2005

The Special Rapporteur on the right of everyone to the enjoyment of the highest attainable standard of physical and mental health, Paul Hunt, today reminded Peru and the United States to take the right to health into account during their current trade negotiations, one year after his last press statement on the issue,

“A year ago, I indicated my deep concern that the US-Peru trade agreement would water down internationally agreed health standards, leading to higher prices for essential drugs that millions of Peruvians would find unaffordable. I continue being concerned today as negotiations on key issues draw to a close”, the Special Rapporteur stated.

On 2 June, The Peruvian Ministry of Health released a study on the potential effects of an eventual US-Peru Free Trade Agreement (FTA) on access to medicines. The study revealed that between 700 to 900 thousand people would be left excluded from accessing medicines without an increase in the budget of the Ministry of Health or an increase in household income for the poor. The first year of the FTA would require an additional increase in spending of US$ 34.4 million, of which US$29 million would fall on families and the rest on the Ministry of Health.

The Special Rapporteur, welcoming the impact assessment undertaken by the Ministry of Health, warned the Government of the effects of the FTA on the right to health, in particular through the introduction of patent protection stronger than required under WTO rules. In particular, the Government should ensure that it can introduce complementary measures to protect the poor from bearing the costs of the FTA. The Ministry of Health study proposes the creation of a fund for medicines drawn from sectors benefiting from the FTA.

The Special Rapporteur stated: “I am concerned that the US-Peru free trade negotiations could lead to higher protection of patents than is currently required under the rules of the World Trade Organization. Higher protection of patents could restrict Governments from taking action to protect the right to health in the future.”

The World Health Organization recently stated that “Patents are by no means the only barriers to access to life-saving medicines, but they can play a significant, or even dominant, role in that they grant the patent holder a monopoly on a medicine for the number of years the patent is in force”.
“Any standards introduced under the FTA on intellectual property protection – and patents more specifically – should include an express safeguard recognizing the right and duty of countries to protect human life and health”, the Special Rapporteur remarked. This will leave some flexibility to the Government to ensure that right to health concerns are not neglected in the process of implementing the FTA.

The right of countries to adopt measures to protect public health and nutrition is enshrined in the World Trade Organization’s Agreement on Trade-Related Aspects of Intellectual Property Rights (TRIPS). The Doha Declaration on TRIPS and Public Health confirmed the right of countries to use safeguards, such as compulsory licences, to protect public health and promote access to medicines for all. Member States of the WHO have also urged States to take into account the Doha Declaration health protections within bilateral trade agreements.

The Special Rapporteur observed that the Constitution of Peru protects the right to health. Peru has also ratified international human rights treaties that enshrine the right to health, such as the Convention on the Rights of the Child and the International Covenant on Economic, Social and Cultural Rights. Crucially, the right to health encompasses access to affordable essential medicines, including for those living in poverty.

Over 50 per cent of Peruvians live in poverty, while almost 25 per cent live in extreme poverty. And many Peruvians die from treatable medical conditions due to difficulties in accessing drugs.

The US-Peru negotiations are part of a wider process, launched in May 2004, which aims to achieve a US-Andean trade agreement between US and Peru, Ecuador and Colombia and Bolivia. The Special Rapporteur concludes that:

- the parties to the negotiations should include an express safeguard within the trade agreement recognizing the right and duty of countries to adopt measures to protect human life and health and the right to health;

- the negotiations must be open, transparent and subject to public scrutiny;

- before concluding the FTA, the Government of Peru should decide what complementary measures are needed and are feasible to ensure that the right to health of Peruvians, particularly the poorest, is protected;

- in accordance with its human rights responsibility of international cooperation, the US must not apply any pressure on Peru to enter into commitments that are inconsistent with Peru’s constitutional and international human rights obligations;

- Peru has a responsibility to ensure that the final agreement is consistent with its constitutional and international human rights obligations.

The Special Rapporteur is an independent expert appointed by the United Nations Commission on Human Rights to help States and others promote and protect the right of everyone to the enjoyment of the highest attainable standards of physical and mental health.

For further information on the mandate of the Special Rapporteur and copies of his reports, please consult the website of the Office of the High Commissioner for Human Rights (www.ohchr.org). His report on his mission to the World Trade Organization is document E/CN.4/2004/49/Add.1 of 1 March 2004. The Special Rapporteur was on mission to Peru from 6 to 15 June 2004, the report of which is available as document E/CN.4/2005/51/Add.3.

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