SEXUAL HEALTH AND HUMAN RIGHTS A legal and ... - The ICHRP

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national health security system for the fiscal year B.E. 2549 (2006) is limited to 2,796.2 million Baht for the target group of 82,000 patients. Even now there are many effective HIV antiretroviral drugs which are capable of extending life span of HIV infected persons and the Royal Thai Government has launched, since 1st October B.E. 2546 (2003), a policy to promote access to HIV antiretroviral drugs for all HIV infected persons and has also allocated budget for this purpose, but an accessibility to some kinds of HIV antiretroviral drugs which are effective and having low level of side-effect still be difficult in spite of an inevitable necessity for the HIV infected persons. This due to the fact that all those HIV antiretroviral drugs are under patent protection in accordance with the law on patent which enable the patent holders to dominate market without competition. The prices of those HIV antiretroviral drugs are, as a result, very high and a hindrance for the State to acquire the drugs for distribution to all HIV infected persons. Efavirenz has already been proved so far to be one of highly effective and safe HIV antiretroviral drugs with very low side-effect. It has also been placed in the National System for Secured Accessibility to HIV Antiretroviral Drugs. This HIV antiretroviral drug, however, is subjected to patent protection which deters the Government Pharmaceutical Organization or other manufacturers from manufacturing and importing this specific drug for sale in the market. The price of Efavirenz in Thailand is twice the price of the same drug which is generic drug in India. Budget allocated by the government is therefore sufficient to provide only some patients with Efavirenz, while the rest has to use non-patent drugs with higher level of side-effect than Efavirenz because of their lower prices.” The need for compulsory licences and other measures to increase access to HIV treatment has arisen in the context of the compliance of the research countries with the Agreement on Trade Related Aspects of Intellectual Property Rights (TRIPS) of the World Trade Organisation (WTO). The TRIPS Agreement requires WTO member countries to grant 20 year patents or exclusive rights on, among other things, pharmaceuticals. The Doha Declaration on TRIPS and Public Health 704 signed by all WTO members highlighted the impact of the Agreement on medicines. According to the Doha Declaration: “We recognize the gravity of the public health problems afflicting many developing and least developed countries, especially those resulting from HIV/AIDS, tuberculosis, malaria and other epidemics…We stress the need for the WTO Agreement on Trade-Related Aspects of Intellectual Property Rights (TRIPS Agreement) to be part of the wider national and international action to address these problems…We recognize that intellectual property protection is important for the development of new medicines. We also recognize the concerns about its effects on prices.” The Doha Declaration accordingly recognized that “the TRIPS Agreement does not and should not prevent Members from taking measures to protect public health…that the Agreement can and should be interpreted and implemented in a manner supportive of WTO 704 Declaration on The TRIPS Agreement and Public Health, World Trade Organisation, Ministerial Conference, Fourth Session, Doha, 9 - 14 November 2001, WT/MIN(01)/DEC/W/2, 14 November 2001 148
Members' right to protect public health and, in particular, to promote access to medicines for all.” All the research countries are WTO members although Nepal and Bangladesh are classified as Least Developed Countries and do not have to comply with TRIPS in relation to medicines till 2016. While Indonesia and Thailand have issued compulsory licenses for HIV medicines as noted above, courts in Sri Lanka and India, which amended their patent laws later to comply with TRIPS, have also played a role in this area. In 2003, the Bill on Intellectual Property proposed by the Sri Lankan government to comply with its obligations under the TRIPS Agreement was challenged before the Sri Lankan Supreme Court under Article 12(1) of the Sri Lankan Constitution i.e. “to determine whether the Bill or any provision thereof is inconsistent with the Constitution.” In Special Determination of the Supreme Court on the Bill on Intellectual Property, 705 the petitioners contended that the requirement of 20 year product patents would allow foreign patent holders of any product or process, including medicinal drugs and the processes for their manufacture, to control the supply and price of such drugs in the Sri Lankan market and increase the prices of medicines. The Bill presented by the government, it was contended did not adopt any of the mitigating measures in the TRIPS Agreement to prevent such a situation and drew the attention of the court to the Doha Declaration on the adoption of such measures including compulsory licensing with regard to public health crises including those related to HIV/AIDS, tuberculosis, malaria and other epidemics. The Supreme Court determined that the Bill without the mitigating provisions violated the provisions of Article 12(1) i.e. the guarantee of equality before the law and equal protection of the law. Rejecting the contention of the Government that fundamental rights can be restricted “in the interests of national economy or of meeting the just requirements of the general welfare of a democratic society”, the court held that the rights to equal rights and equal protection cannot be so overridden and that, “the provisions in Article 12(1) guarantee equal rights as well as equal protection and the provision of the TRIPS Agreement cannot be applicable to developed and developing countries equally without attributing due consideration to such rights with particular reference to the mitigatory provisions in the Agreement. Producers of patented products and processes and their agents in developed nations and consumers of such products in developing countries such as Sri Lanka cannot be taken as parties that are similarly circumstanced. There is ample justification to treat them differently as they cannot be put on equal footing. If they are to be treated equally such decision should be justified by relevant criteria.” Finding no such justification shown by the Government or any reason why mitigating provisions of the TRIPS Agreement were not included in the Bill, the Supreme Court held that the Bill was inconsistent with Article 12(1) of the Constitution. Based on the finding of the Supreme Court, the government introduced provisions related to compulsory licencing and other mitigating provisions in the law. 706 705 No. 14/2003, No. 15/2003 and No. 16/2003 available at http://www.elaw.org/system/files/Sri+Lanka+SC+Determination+on+Intellectual+Property+Bill.doc 706 See Section 86, Intellectual Property Act, 2003 (Sri Lanka) 149
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THE INTERNATIONAL COUNCIL ON HUMAN
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6. ACCESS TO HEALTH SERVICES IN REL
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ABBREVIATIONS AIDS ART ARV CEDAW CE
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in the regional reviews. This is a
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provide for information and distrib
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B. METHODOLOGY In keeping with the
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elevant and key laws and judgments;
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The inability of many sexually stig
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Equality irrespective of a person
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The centrality of women’s rights
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social standing, religious belief,
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according to the physical condition
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Constitutional Court in The Nationa
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protections or statutory law. There
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However it also noted that every Ri
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concerned with declaring that the h
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without guaranteeing the personal p
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to enlarge the meaning and content
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a concept has wider dimensions than
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Such conduct mentioned in clauses (
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embraced the complainant and asked
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does not sever the ties between the
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The potential recognition of same-s
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Similarly, seeking out sex educatio
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condom). Across such laws, the defi
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jurisdictions. Nepal, a country wit
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the conviction of the accused for s
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with an unmarried woman is not puni
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physical characteristics (virginity
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interventions and safeguards such a
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The opinion of the National Commiss
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was married to she would acquire im
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to consider the case of a woman see
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oth parties and deems all marital p
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female who has not attained 12 year
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Article 16 of the Universal Declara
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In Bangladesh, polygamy is allowed
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immovable property. The above propo
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consummation of marriage. The incap
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Violence, especially sexual violenc
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gender norms which many remand home
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female or a female to a male. It in
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from other forms of inequality as w
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c. Whereas victims of violence in h
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courts. 350 According to the Commis
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The Act provides for the appointmen
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Rani 383 it was held that a shared
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The Act specifies imprisonment of 6
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Page 99 and 100: upees or the amount of the dowry wh
Page 101 and 102: however, is that, of the 10,000 dea
Page 103 and 104: Addararachchi 439 the court conside
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Page 109 and 110: In holding that there was no justif
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Page 121 and 122: every person “the right against e
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Page 131 and 132: her.” 631 A person is deemed to h
Page 133 and 134: that they are denied the fundamenta
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Page 139 and 140: With regard to the first question,
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Page 151 and 152: 7. INFORMATION, EDUCATION AND EXPRE
Page 153 and 154: education as well as non-discrimina
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Page 157 and 158: community.” 727 In each case, the
Page 159 and 160: Nepal’s Interim Constitution limi
Page 161 and 162: Sections 292, 292A, 293 and 294 of
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Page 165 and 166: “1 (a) Condones or extenuates act
Page 167 and 168: In Thailand, places of entertainmen
Page 169 and 170: 8. SEX WORK This section examines h
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Page 175 and 176: and non-rehabilitative juvenile jus
Page 177 and 178: “In view of the aforesaid proposi
Page 179 and 180: person who commits the act are of t
Page 181 and 182: as parent or guardian has given his
Page 183 and 184: with one) on the charge that it was
Page 185 and 186: for sex workers while emphasizing t
Page 187 and 188: 19. Azimuddin v State of Uttar Prad
Page 189 and 190: 1. Acid Control Act, 2002 2. Acid-O
Page 191: 13. Intellectual Property Act, 2003
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