It is no longer news that some countries have initiated the process to establish a binding treaty to regulate the activities of transnational corporations under international human rights law. During the 26th session of the UN Human Rights Council in 2014, the Council adopted a resolution (drafted by Ecuador and South Africa) wherein it was decided to establish an ‘open-ended intergovernmental working group with the mandate to elaborate an internationally legally binding instrument on Transnational Corporations and Other Business Enterprises with respect to human rights’. The ‘open-ended intergovernmental working group’ held its first session between 6 and 10 July 2015 in Geneva. This process, which is still in its early stages, has generated a considerable debate.
But what exactly is the rationale behind continuing with a process that, from all indications, is a pointless exercise and a waste of time? To start with, most developed countries (where most of the transnational corporations that the treaty seeks to regulate are headquartered) do not support the process. Besides, it is clear that some developing countries are also seeking to protect their local businesses from the reach of the proposed treaty. In any case, let us even assume that these ‘defenders of the victims of corporate human rights abuses’ have their way and finally manage to secure a treaty, how is the treaty really going to help the victims of corporate human rights abuses if the treaty does not enjoy universal support?
As Professor John Ruggie has rightly stated:
“First, the ongoing treaty negotiations are likely to be slow and contested. Therefore, it is imperative that progress continue to be made on implementing the UN Guiding Principles on Business and Human Rights (UNGPs), which the Council endorsed unanimously in June 2011 — and that civil society continues to invest time and energy to pressure governments and enterprises to do so. The available evidence suggests that where the UNGPs are implemented, the incidence of corporate-related human rights harm is reduced. Second, if there is to be any hope of further international legalization in the business and human rights domain, civil society needs to help by advancing workable proposals that states cannot ignore or dismiss out of hand — and which, therefore, have a chance of making a difference where it matters most: in the daily lives of people.”
Earlier this week, another draft version of India’s National IPR Policy was leaked. The draft, dated 18 April 2015, was submitted by India’s ‘IPR Think Tank’. Some comments have been made on the draft (see here, here, and here). The first draft of the IPR policy prepared by the IPR Think Tank can be found here.
It is interesting to note that the draft policy states that ‘India is fully conscious of its international obligations and has always abided by them. At the same time, it has protected the national interest and balanced the rights of IP owners with their obligations to society.’ In addition, the draft policy states that the ‘policy space and flexibilities available under the international instruments will continue to be used judiciously.’
It is also gratifying to see that a human rights approach was incorporated into the draft policy. In its discussion of public health, the draft policy states that the right to health ‘is an integral part of the right to life enshrined in the Constitution of India’ and that ‘India is committed to providing its citizens access to affordable medicines, quality healthcare and innovative products and services’. Hopefully, this portion of the policy will not be expunged from the final version of the IPR policy.
The claim is not being made here that this draft IPR policy is the best and it is probably true to say that a more robust IPR policy document will be more beneficial. In any case, an Indian government official has stated that the leaked draft IPR policy is merely an input into the IPR policy being drafted by the government. According to the official, ‘policy is not made by the think-tanks, it is made by the government’. So, let’s keep our fingers crossed for the final IPR policy from India.
There is no human right to patent protection. Or as the Special Rapporteur in the field of cultural rights, Farida Shaheed, aptly puts it in her recent report, ‘There is no human right to patent protection under article 15 of the International Covenant on Economic, Social and Cultural Rights.’
It is hoped that this recent report by Shaheed, which addresses the implications of patent policy for the human right to science and culture, will offer some sort of clarity to those who still believe that Article 15(1)(c) of the International Covenant on Economic, Social and Cultural Rights (ICESCR) provides a basis for saying that patent rights (or indeed any other form of intellectual property rights) are human rights.
It is true that Article 15(1)(c) of the ICESCR recognizes the right of everyone to ‘benefit from the protection of the moral and material interests resulting from any scientific, literary or artistic production of which he is the author’. However, anyone who has examined the historical development of Article 15(1)(c) of the ICESCR, or that of its progenitor i.e. Article 27(2) of the UDHR, already knows that it is wrong to rely on either or both of these two provisions to assert that intellectual property rights are human rights.
It is interesting to also note that Shaheed’s report also goes further to suggest that, although the flexibilities contained in the TRIPS Agreement remain optional from the perspective of trade law, from a human rights perspective, these flexibilities ‘are often to be considered as obligations’.
This is a blog about International Intellectual Property Law and Policy…
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