Yusef Hamied, the founder and retired CEO of Indian pharmaceutical company, Cipla, was once asked if he had an ulterior motive for giving away AIDS medicine for free. He replied “Yes, I do…I want to do some good before I die”. Hamied’s battle against large pharmaceutical companies in the 1990s in an attempt to provide low-cost, life-saving medicine has been brought to light in Dylan Mohan Gray’s documentary, Fire in The Blood. It is a battle to protect the basic human rights of so many, a battle which is far from over.
As the Indian Supreme Court handed down their verdict on April 1st 2013 for the India v. Novartis case, the question of whether a company’s profits should be prioritised over a person’s health again rears its head.
Swiss pharmaceutical company, Novartis, were not successful. They argued for India to change its patent laws, so as to protect their oncology drug, Glivec. Public health laws in India prioritise the human right to health by allowing Indian pharmaceutical companies to produce drugs like these at a lower cost. Novartis sold Glivec for $2600 a month, per person. This is a huge leap from the generic version being produced in India, sold for $200! The Novartis verdict is a promising development in the campaign for corporate accountability but problems persist.
The right to life and to the ‘highest attainable standard of health’ are enshrined not only in the Universal Declaration of Human Rights but also in the legally binding treaty, the International Covenant on Economic, Social and Cultural Rights. Most countries have ratified. How then, did a company manage to argue in court that their profits should trump the human rights of so many?
There is an obvious gap between the theoretical rights that are codified in these legal instruments, and the practical protection and promotion of human rights. One reason for this implementation gap is the economic and political power of transnational corporations, like Novartis.
How did it come to this? Why are tens of millions of people dying from lack of access to medicine purely because they can’t afford it? Putting a high price on lifesaving medicine is asking people to question the worth of their lives or the lives of their family members.
Selling someone back their health and the possibility to live a longer, more dignified life is wrong on so many levels. Companies like Novartis argue that patenting laws protect new medical discoveries, promote innovation and prevent the manufacture and sale of bad quality medicine.
Yusef Hamied refutes this. He argues that because 90% of revenue comes from the global North, sales of low cost medicine in the global South do not affect research and development. Companies are not creating new, innovative drugs. Instead, many pharmaceutical companies are guilty of “evergreening” patents. In the field of pharmaceuticals this involves slightly altering a drug before the patent expires, prolonging the monopoly over it. The impact of evergreening is a direct prioritisation of profit over health and runs contrary to the 2010 Doha Declaration on the Agreement on Trade-Related Aspects of Intellectual Property Rights and Public Health. The Doha Declarations states that patent rules should be interpreted with the protection of public health at the forefront.
The argument that patents promote innovation is a tired one. It also becomes weaker when one considers the human rights implications.
The documentary, Fire in the Blood, showing at the Sundance Film Festival next month, further disputes this line of reasoning. The film explores the effects of medicine prices for HIV/AIDS sufferers in Africa. It demonstrated the positive effects of one good practice company, Cipla. Based in India, the “pharmacy of the developing world”, Cipla put their money where their mouth was and sold antiretroviral medicine at cost price, a practical demonstration of their “Caring for Life” mantra. Their bold move made a clear point to the profit-driven pharmaceutical companies who were monopolising the drug market; the right to health should come first.
In 2011 the UN Human Rights Council adopted the Guiding Principles on Business and Human Rights, more commonly known as the Ruggie Principles. The voluntary principles acknowledge the responsibilities of corporations to respect human rights, the environment and labour rights by setting basic standards. Over 7000 businesses have signed up in 145 countries. They are a positive step forward but there is still much to be done.
There are a number of inadequacies to be considered. Critics claim that adoption of the principles is merely an opportunity for “blue washing”- a derogatory reference to the reputational benefits of partnering with the UN. The reliance on self-evaluation is another problem. Novartis’ most recent Communication of Progress report prescribes just four pages to evaluate their human rights impact. In the review regarding their lack of complicity in human rights abuses, Novartis focused on labour rights but failed to mention their complicity in the violation of the right to health with high pricing of medicine.
What Needs to Change
For the Ruggie Principles to be effective in protecting human rights, the corporate structure needs to be modified. Legal obligations to maximise profit for company stakeholders results in human rights falling by the wayside. A study carried out by the International AIDS Society endorses the implementation of a Medicine Patent Pool which would make patent licences temporarily available to allow others to produce low-cost generic drugs for sale in developing countries. The Pool is funded by the organisation, UNITAID, which is seeking innovative ways for markets to operate effectively and in the interest of public health. The Pool is an interesting and useful mechanism but does not address the fact that companies are not legally bound to respect human rights.
Companies must recognise their responsibility. They should be legally required to adopt the Ruggie Principles, and governments must put mechanisms in place to monitor their implementation. Governments are primarily responsible and must prioritise the health and lives of people and fulfil their treaty obligations.
The last twenty years have shown the value of political activism and the potential for change. The international community must continue to demand accountability from companies who have a social responsibility. The Novartis verdict has shown that this is possible.
What You Can Do
Cipla’s actions showed the value of doing genuine good. We must aspire to one day live in a world where the health and lives of people are put before the profits of a company. You can be a part of this!
The intrinsic relationship between business and human rights is being realised globally. Global networks and initiatives are pioneering research on the subject. International NGOs, such as Amnesty International, Human Rights Watch (HRW) and Peace Brigades International are joining the campaign for greater accountability of companies. HRW dedicated a large section of its 2013 World Report to the issue, calling for improved government monitoring of corporate actions; Senior Researcher, Christopher Albin-Lackey criticised the regulation vacuum and its impact on human rights worldwide, saying governments had “failed to keep pace”.
Focused on the right to health, Médecins Sans Frontières (MSF) are leading an access to medicine campaign against companies like Novartis. Find out more and get involved on the ‘MSF Access’ website: http://www.msfaccess.org/novartis-drop-the-case.
Raise the issue by writing to your MP: for a sample letter and more information, visit http://fireintheblood.com/write.
Grugel, J. and Piper, N. (2009) ‘Do Rights Promote Development?’ Global Social Policy Vol. 9(1): pp 79–98
Hoen, E., Berger, J., Calmy, A. and Moon, S. (2011) ‘Driving a Decade of Change: HIV/AIDs, Patents and Access to Medicine, Journal of the International AIDS Society, [online] Available at http://www.ncbi.nlm.nih.gov/pmc/articles/PMC3078828/ [Accessed 08/04/2013]
Human Rights Watch (2013) ‘World Report 2013’ [online] Available at https://www.hrw.org/sites/default/files/wr2013_web.pdf [Accessed 04/04/2013]
India Knowledge (2009) ‘Cipla Pharmaceuticals’ Yusuf Hamied: ‘I Am Not Against Patents … I Am Against Monopolies’, Interview with Yusef Hamied [online] Available at http://knowledge.wharton.upenn.edu/india/article.cfm?articleid=4374 [Accessed 05/04/2013]
Ruggie, J. (2011) ‘Guiding Principles on Business and Human Rights: Implementing the United Nations “Protect, Respect and Remedy” Framework’ [online] Available at http://www.business-humanrights.org/media/documents/ruggie/ruggie-guiding-principles-21-mar-2011.pdf [Accessed 05/04/2013]