Human Rights Dialogue (1994–2005): Series 2, No. 6 (Spring/Summer 2001): Rights and the Struggle for Health: Articles: Applying Human Rights to the HIV/AIDS Crisis

May 6, 2001

In the United States and Europe, people with HIV/AIDS are living longer, healthier lives primarily because of the availability of antiretroviral treatment. Yet in the developing world, we are faced with death on a scale comparable to World War II, by a disease more lethal than any since the Black Death decimated Europe's population 600 years ago. Accounting for this disparity is simple, according to Justice Edwin Cameron, formerly a judge on the South African constitutional court and himself an HIV patient: "There are people throughout Africa…and nearly 34 million people in our whole world who are this moment dying. And they [are] dying because they don't have the privilege that I have, of purchasing my health and life."

The Treatment Action Campaign (TAC) is a South Africa-based grassroots NGO that campaigns for access to treatment, with a focus on HIV/AIDS patients. For us, a human rights framework is not merely an academic tool, but the fundamental basis of our advocacy. Achieving social justice on the issue of obtaining the drugs necessary to sustain life requires efforts on both the domestic and the international levels. In South Africa, we have been using legal action and the threat of legal action to force the government and pharmaceutical companies to recognize and adhere to basic rights, such as the right to health care, that are enshrined in the constitution. The international community, however, must reconsider the patent abuse of pharmaceutical companies and move faster to develop a global trust fund for combating the HIV/AIDS epidemic in all developing countries.

Out of the South African revolution against apartheid emerged an internationally respected constitution with a bill of rights, encompassing the rights to life, dignity, health care, and reproductive choices--the core issues underlying TAC's campaign. With the new constitution and the establishment of the constitutional court, legal action is a critical part of achieving social justice. Human rights arguments and legal action alone are, however, of limited use. It is crucial to combine them with mass mobilization, including rights awareness campaigns. In the context of HIV/AIDS, this means organizing people affected by the disease. Treatment literacy programs, protests, marches, and even civil disobedience are crucial components of grassroots pressure. This is a difficult challenge in a poor country like South Africa, which has low levels of scientific literacy, a high rate of poverty, and a high incidence of people infected with HIV/AIDS being unaware of their status.

We have already seen practical results in gaining access to medicine from this approach. Last year, TAC threatened legal action against the government for not implementing an HIV/AIDS mother-to-child transmission prevention (mtctp) program using antiretroviral medicines. The threat of action, coupled with protests and nonviolent street action, led to immediate results: The Department of Health announced the implementation of mtctp in eighteen pilot sites around the country, reaching 10 percent of pregnant mothers attending public antenatal clinics. While this was insufficient, it indicated a gradual realization of the rights being argued for. TAC halted its legal action in response to these measures. Since then, however, the government has wavered on its commitment and delayed the implementation of the eighteen sites. The minister of health has also suggested that there are no plans to go beyond the pilot program. TAC is thus once more considering legal action on mtctp. More important, popular action demanding a countrywide mtctp program has gained momentum, which has had the effect of speeding up the implementation of the pilot sites.

Another example of combining legal action on a human rights basis with popular protest was the highly publicized court case between forty pharmaceutical companies and the South African government, which began in 1997. The pharmaceutical industry attempted to block the introduction of legislation that would substantially lower the prices of medicines. TAC joined the case as an amicus curiae (friend of the court) in support of the government. A number of aspects of the legislation were contested by the industry, but best known was the principle of parallel importation, which the new legislation would allow.

Parallel importation is the importation of a product under patent from a distributor in another country. This does not refer to generic versions of the product, only to the patented product sold at a lower price elsewhere. Changing the law to allow these medicines into the country is important if one considers that some essential patented drugs are sold at lower prices in countries such as Spain and India than they are in South Africa. Though the reduced cost would benefit all HIV/AIDS patients, the pharmaceutical industry sees this eventuality as a breach of their property rights, which are protected under the South African constitution. TAC's counsel argued that all other constitutional rights should be considered within the context of the rights to life and dignity--the most fundamental of all human rights.

TAC coupled its legal action with a call to its allies around the world to participate in a global day of protest against the pharmaceutical industry's stand. The response was huge. In more than ten countries, including developing countries like Brazil, Kenya, and the Philippines (as well as South Africa), crowds gathered to protest this unjust policy. The result was a public relations disaster for the pharmaceutical industry and their swift withdrawal from the case. The industry's legal action has, however, succeeded in delaying the implementation of the new legislation from 1997 until the recent court case. Within the next two months, the legislation will be enacted.

Though important, TAC's domestic initiatives must be complemented by more concerted action on the part of the international community to get medicine to people in need. Treatment activists argue that the pharmaceutical industry is charging excessively high prices on essential patented medicines. Only competition from generic manufacturers (with royalty-based compensation for the patent-holders) offers a sustainable means of driving prices on these medicines to their marginal cost, as has happened in Brazil. The World Trade Organization Trade Related Aspects of Intellectual Property agreement, which establishes minimum standards for WTO members with regard to intellectual property law, has been partly responsible for the failure of developing countries to allow generic competition on patented medicines.

Though the agreement contains exceptions that are, in our opinion, sufficient from a legal perspective to allow the issuing of licenses for generic versions of products under patent to be produced and imported (with compensation to the patent-holder), developing countries have been fearful to act on these exceptions. This is because the agreement is poorly drafted and ambiguous, which leaves much scope for trade action by rich countries--influenced by the pharmaceutical industry--against poor ones at the WTO. Essentially, many developing countries have simply been intimidated out of pursuing generic importation or production. Furthermore, many poor country governments, though not all, cannot afford to supply HIV/AIDS drugs, even if they are sold close to their marginal cost. TAC and its allies are therefore promoting the establishment of a global trust fund financed predominantly by the United States, the European Union, Canada, and Japan. This fund would pay for medicines (including antiretrovirals), the development of health care infrastructures, and prevention programs. Such a fund is in the process of being established, but it requires a much larger financial commitment from the rich countries to be successful. If the human rights to health and medical care enshrined in Article 25 of the Universal Declaration of Human Rights--surely the most important global agreement and the one to which all bodies like the WTO should adhere--are to have meaning beyond mere platitudes, then the global trust fund for alleviating the HIV/AIDS pandemic must be given full support.

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