International Public Health

Patients' Rights vs. the Protection of Patents

Yves Beigbeder

• Publisher: Routledge
• Year: 2017
• ISBN:
  9781351155427
• Edition: 1
• Topic: Politics & International Relations
• Subtopic: Politics
• Index: Politics & International Relations

This perceptive book highlights the need for cooperation between major organisations - whether intergovernmental, commercial or nongovernmental - to ensure developing countries have access to affordable medicines and vaccines, in spite of their different mandates and interests. Yves Beigbeder reviews specific areas of international public health issues and programmes from the vantage point of one particular intergovernmental organisation - the World Health Organisation. He includes studies on the value and risks of public-private partnerships, the access of poor populations to essential drugs and the fight against malaria and tuberculosis and the HIV/AIDS epidemic. Further chapters focus on polio eradication, onchocerciasis control, alliances for vaccines and immunization, the promotion of breastfeeding, and the struggle against the tobacco industry.

Part I
The United Nations and the World Health Organization

Chapter 1
United Nations Organizations and Business

On 31 January 1999, speaking at the World Economic Forum in Davos, Switzerland, United Nations Secretary-General Kofi Annan first proposed the Global Compact (United Nations, 2002). Amid a rising concern about the effects of globalization, he called on business leaders to join this international initiative that would bring companies together with UN agencies, labour, non-governmental organizations and other civil society actors¹ to foster action and partnerships in the pursuit of good corporate citizenship.

On 5 July 1999, Annan and International Chamber of Commerce President Adnan Kassar affirmed that the UN goals of peace and development are compatible with business goals of wealth and prosperity. Both acknowledged that the universal values promoted by the UN are the very values that can help safeguard open markets and expand the benefits of globalization (UNA of the USA, 2000).

In 1998, Annan had already engaged in a dialogue with the international business community which he called ‘mutually beneficial’ (United Nations, 1998). For Annan, business has a stake in the soft infrastructure produced by the UN system the norms, standards and best practices on which the smooth flow of international transactions depends, UN work on behalf of peace, human rights and development. In turn, the UN appreciates that business has the capacity, technology and expertise necessary to fuel economic growth.

The Global Compact was officially launched at UN headquarters on 26 July 2000, in a meeting attended by senior executives from more than 50 major corporations and the leaders of a few labour, human rights and development organizations.

The concept and implementation of the Global Compact were due to the initiative and efforts of Annan, without preliminary submission to and endorsement by Member States. It raised immediate protests from a number of NGOs, as an ‘unholy alliance’ with profit-making enterprises which had been the target of condemnations by UN bodies and developing countries in past decades.

Engagement with the business community would parallel, and perhaps rival, the long-standing, close relationships the UN has with NGOs, its first and often indispensable partners in the fields of human rights, the environment, development, trade issues, humanitarian assistance and the issues of women and children.

The first UN partners: the NGOs

Article 71 of the UN Charter authorized the Economic and Social Council ‘to make suitable arrangements for consultation with non-governmental organizations which are concerned with matters within its competence’. The Principles to be applied in establishing consultative relations between NGOs and the Council were revised in 1996.² They provide that the aims and purposes of the NGO must be in conformity with the spirit, purposes and principles of the UN Charter. The NGO must undertake to support the work of the UN and to promote knowledge of its principles and activities. The NGO’s programme of work must be of direct relevance to the aims and purposes of the UN. The NGO must be of recognized standing within the particular field of its competence or of a representative character. The NGOs applying for consultative status may be at the national, sub-regional, regional or international levels. End 2002, there were 2143 NGOs in consultative status with the Council, and some 400 NGOs accredited to the Commission on Sustainable Development, a subsidiary body of the Council.

Large numbers of NGOs have attended large-scale international conferences on special themes, such as population, the status of women, the environment. For example, the UN Conference on the Environment and Development in Rio de Janeiro in 1992, registered 1400 NGO representatives: only a few had consultative status with the Council (Weiss & Gordenker, 1996).

Most UN agencies and funds have set up their own consultative status with NGOs. Among them, the UNESCO National Commissions and the NGO Committee on UNICEF, which have built strong bridges with professional groups, NGOs and even individual citizens. The same applies to the FAO Freedom from Hunger Campaign. The Programme Coordinating Board of the Joint UN Programme on HIV/AIDS (UNAIDS) includes five representatives of NGOs, including associations of people living with AIDS, besides government representatives.

NGOs work at both policy and operational levels. They mobilize public opinion, they act as counter-powers, lobby and challenge governments and intergovernmental bodies, they monitor and challenge business organizations. Many carry out the field work of UN agencies such as the UNHCR and UNICEF.

The UN and transnational corporations: from opposition to cooperation

In 1974 and 1975, the UN General Assembly voted for the establishment of a New International Economic Order, against the will of the industrialized countries. In this context, Transnational Corporations (TNCs) were criticized by Third World and socialist countries for their investment and commercial practices, their political pressures, and charged with corruption. They claimed that TNCs were impeding development and competing unfairly on a global basis. The new automatic majority of developing countries in UN bodies promoted the formulation of codes of conduct to regulate transactions between TNCs and host governments. In 1974, the UN established in New York an intergovernmental Commission on Transnational Corporations (UNCTC). In 1975, a newly created UN Center on TNCs began work on a code of conduct. Also in 1975, negotiations started at the United Nations Conference on Trade and Development (UNCTAD) on restrictive business practices and on the transfer of technology, but no agreement was reached on an International Code of Conduct for Transnational Corporations. Codes on specific products were however approved: in 1981, the International Code of Marketing of Breast-milk Substitutes, sponsored by WHO and UNICEF (see Chapter 3), – in 1985, the FAO Code of Conduct on the Distribution and Use of Pesticides and in 1988 the WHO Ethical Criteria for Medicinal Drug Promotion.

The political and economic climates changed in the 1980s. TNCs were now seen as agents of the investment, trade and technology transfer required for development. Reflecting the trend towards neo-liberalism and the development of economic globalization, UN policy towards TNCs changed course (Utting, 2001). Instead of trying to regulate foreign direct investment (FDI), UN agencies like UNCTAD sought to facilitate the access of developing countries to FDI. Deregulation and privatization were encouraged. UNCTC ceased to function as a separate entity in 1992.

The UN General Assembly recognized in 1993 the importance of the market and the private sector for the efficient functioning of economies in various stages of development (A/RES/48/180). The resolution recalled with satisfaction the active collaboration between the UN system and private sector associations, such as the ongoing efforts of UNDP with the International Chamber of Commerce, the Business Council for Sustainable Development and the Chamber of Commerce and Industry of the Group of 77. The Assembly encouraged organs, organizations and bodies of the UN system to foster active partnerships between public and private entities.

Another resolution adopted by the UN General Assembly in February 1998 (A/RES/52/209) recognized that business and industry, including TNCs, play a crucial role in the social and economic development of countries and recognized the need to increase private sector involvement in the provision of infrastructure services, inter alia, through joint ventures between public and private entities. Yet another resolution adopted in 2000 (A/RES/54/204) noted, inter alia, the efforts of the Secretary-General to create partnerships with the private sector. However, it did not give free rein to business: the resolution encouraged governments to create an environment enabling businesses to conduct their activities in a humane, sustainable and socially responsible way.

The climate between the public and private sectors was also changing in industrialized countries. In May 2001, Franz Schoser, then Chief Executive of the German Association of Chambers of Commerce and Industry said in a meeting with journalists: ‘In the seventies, German development policy worked against the private sector. In the eighties, it ignored the private sector. And since the nineties, it has finally been working with the private sector’. Another German leader added that neither the public nor the private sectors can cope alone with the huge development challenges facing us (Rabe, 2002).

The Global Compact, a voluntary network

At the core of this network are the Global Compact Office at the UN headquarters, and four UN agencies, the International Labour Organization (ILO), the Office of the UN High Commissioner for Human Rights (UNHCHR), the UN Environmental Programme (UNEP) and the UN Development Programme (UNDP). It seeks to involve governments, companies, labour, civil society organizations and the UN as convener and facilitator.

The Compact is a voluntary corporate citizenship initiative. It is not a regulatory instrument: it does not ‘police’ or enforce the behaviour or actions of companies. It relies on the enlightened self-interest of companies, labour and civil society to initiate and share substantive action in pursuing the principles upon which the Compact is based. The Compact seeks to make globalization more equitable and thus more sustainable for the vast numbers currently excluded from the international marketplace. For the Secretary-General, the Compact is also ‘a chance for the UN to renew itself from within, and to gain greater relevance in the 21st century by showing it can work with non-state actors, as well as states, to achieve the broad goals on which its members have agreed’ (United Nations, 2002). It aims at filling the void between regulatory regimes, at one end of the spectrum, and voluntary codes of industry conduct, at the other.

The Compact asks companies to embrace, support and enact, within their sphere of influence, a set of core values in the areas of human rights, labour standards and the environment. The Compact’s nine principles are derived from the Universal Declaration of Human Rights, the ILO Declaration on Fundamental Principles and Rights at Work, and the Rio Declaration on Environment and Development (see below, Presentation 1.1). A participating company needs to bring about positive change only in those areas that are relevant to its business operations.

Presentation 1.1 The Nine Principles of the Global Compact

Human Rights

1. Businesses should support and respect the protection of internationally proclaimed human rights; and
2. Make sure that they are not complicit in human rights abuses.

Labour Standards

1. Businesses should uphold the freedom of association and the effective recognition of the right to collective bargaining;
2. The elimination of all forms of forced and compulsory labour;
3. The effective abolition of child labour; and
4. Eliminate discrimination in respect of employment and occupation.

Environment

1. Businesses should support a precautionary approach to environmental challenges;
2. Undertake initiatives to promote greater environmental responsibility; and
3. Encourage the development and diffusion of environmentally friendly technologies.

Source: The Global Compact, Corporate Leadership in the World Economy UN, January 2001.

In January 2002, the Secretary-General convened an Advisory Council on the Global Compact composed of senior business executives, international labour leaders, public policy experts, and heads of civil society organizations across the world (United Nations, 2002). Members of the Council are addressing four related priorities: 1), safeguarding the integrity of the Global Compact; 2) serving as advocates of the Compact; 3) providing expertise relating to the Compact’s focus area; and 4) offering advice on policy and strategy. The Compact has initiated several Policy Dialogues which have brought together companies with labour and civil society organizations. Topics have included ‘The Role of Business in Zones of Conflict’, ‘Business and Sustainable Development’. In the fledging Learning Forum, companies will be submitting on the Compact website annual examples of how they apply one or more of the nine principles. They will be encouraged to develop case studies. A global academic network will oversee these processes. The Compact will also encourage public-private partnerships that support UN goals. Finally, Global Compact Outreach promotes global support for the Compact at national level.

A Working Group on Company Participation and Civil Society Engagement will propose safeguards to ensure that companies engaged in Compact activities do not abuse or exploit their affiliation with the UN.

Two conditions must be met for companies to be identified as participants in the Global Compact initiative. First, companies must submit a formal letter of intent to the Secretary-General affirming their commitment to the nine principles. Secondly, the companies must submit annually an example of their efforts to uphold and implement one or more of the nine principles. If both requirements are fulfilled, a company’s identity and their submitted example will be posted on the Compact website. Restrictions apply to the use of the Compact logo and to the general UN logo. No financial contributions from companies are accepted. All funding for the Compact comes from member states’ donations and not-for-profit entities.

By the end of 2002, 563 companies worldwide had pledged support for the Compact and were implementing its principles.³ Among them, large petroleum, chemical and pharmaceutical companies, international banks, telecommunication firms, car and other manufacturers. The country distribution was uneven: 82 companies in India, 91 in the Philippines, 117 in Spain, and only 35 in the USA. Companies in 18 European countries were participants, 11 from Asian countries, only five from Latin American countries and from Africa.

Why do companies join? According to Ruggie⁴ (2000), a major reason is the protection and promotion of the company brand. Another reason is that some companies have come to view global corporate social responsibility as a natural extension of corporate social responsibility in their home countries, as one of the rules of the game in the new global market place. For some companies in the cutting edge industries, more elevated social purposes are becoming part of corporate culture, aimed at attracting the very best candidates for employment. Finally, there may be companies looking to the Compact for a free ride, mere publicity, a ‘bluewash’ instead of good practices.

Other participants included the International Chamber of Commerce,⁵ the International Organization of Employers and other International Business Associations. Among several labour organizations is the International Confederation of Free Trade Unions, representing 156 million members in 221 national trade union centres from 148 countries. Among civil society organizations are Amnesty International and Human Rights Watch, the Save the Children Alliance, the World Wide Fund for Nature (WWF), Transparency International, and a number of academic institutions.

NGOs against the Global Compact

Since March 1999, CorpWatch⁶ has led an international campaign to document and expose the growing number of partnerships between various UN agencies and corporations with poor human rights and environmental records. It proposed an alternative relationship between the UN and corporations, one in which the UN would serve as counterbalance to corporate-led globalization. CorpWatch is the secretariat of the Alliance for a Corporate-Free United Nations.

In September 2000, it published a report (Bruno and Karliner, 2000) on Corporate Partnerships at the United Nations, ‘Tangled Up in Blue’. The report argued that corporate influence at the UN was already too great, and that new partnerships were leading down a slippery road toward the partial privatization and commercialization of the UN system itself. It stated that the Secretary-General’s Office and UN agencies such as UNICEF, UNDP, WHO, and UNESCO were partnering with corporations known for human, labour and environmental rights violations. For CorpWatch, the Global Compact and its cousin partnerships at other UN agencies were threatening the mission and the integrity of the UN.

According to the report, the Global Compact had four major problems:

• – Wrong companies: The Secretary-Gener...

Table of contents

• Cover
• Half Title
• Title
• Copyright
• Contents
• List of Presentations
• Foreword
• List of Abbreviations
• Introduction
• PART I: THE UNITED NATIONS AND THE WORLD HEALTH ORGANIZATION
• PART II: SETTING INTERNATIONAL PUBLIC HEALTH POLICY
• PART III: PUBLIC-PRIVATE PARTNERSHIPS FOR HEALTH
• PART IV: FIGHTING THE INDUSTRY
• Conclusion
• Bibliography
• Index