Positive Living organisations in Malaysia express concern at the potential for Free Trade Agreements to impact on accessibility of HIV medications
04 May 2011
Accessibility to treatment for People Living with HIV (PLHIV) is a huge determinant for their livelihoods. Easy access to adequate medical treatment, including access to treatment information, vastly improves PLHIV quality of life. It enables PLHIV to lead healthy and empowered lives, subsequently invalidating the fear, confusion, stigma and discrimination they are often subjected to.
Currently, Malaysia is negotiating with the United States of America as part of the Trans-Pacific Partnership (TPP) agreement and is also beginning negotiations with the European Commission (EC) for a bilateral free trade agreement (FTA). These free trade negotiations bring access to anti-retroviral medication under direct threat, and thus the livelihoods of Malaysians living with HIV have also become threatened. Concern is centred on potential FTA provisions that would limit access to life-saving medicines for PLHIV in Malaysia, such as data exclusivity, extending patent life span, ‘evergreening’ the patent, limitation of conditions for compulsory licensing and making the drug regulatory authority play the role of ‘patent police’.
FTAs have been known to include stringent versions of these provisions, resulting in governments adopting Intellectual Property Rights obligations that exceed the general requirements of the World Trade Organization. Restrictive provisions decrease the availability of generic HIV medications, exponentially increase the cost of medication and thus significantly impact limit access to medication for People Living with HIV.
Ultimately, the FTAs are threatening Malaysian’s right to health, a right enshrined in numerous international and regional human rights treaties. According to the Report of the Special Rapporteur on the right of everyone to the enjoyment of the highest attainable standard of physical and mental health
“…medical care in the event of sickness, as well as the prevention, treatment and control of diseases, are central features of the right to health. These features depend upon access to medicines. Therefore, access to medicines forms an indispensible part of the right to health.”
Thus, states have an obligation under international law to protect the right to health to ensure that medicines are available, affordable and accessible.
Regardless of FTAs, cost of health care for HIV positive Malaysians is already increasing. The World Health Organization (WHO) now recommends starting HIV treatment when patients have a CD4 count of 350 rather than 250, meaning more patients in Malaysia will be requiring treatment earlier, thus increasing treatment costs by almost RM30m for the government. If an FTA is signed that further limits access to cost effective medication, expenses will only further rise.
Malaysia must protect the right to health and continue striving towards the target outlined in The National Strategy on HIV and AIDS 2011-2015 of ensuring ‘provision and access to comprehensive services for at least 80% of People Living with HIV who are eligible for ARV treatment, care and support…’ This target is already made more difficult by the revised WHO recommendations but will only become increasingly unreachable if FTAs with strict Intellectual Property Rights provisions are signed.
It is imperative that Malaysia protects access to affordable HIV medication and the right to health care for People Living with HIV, which is directly under threat from the TPP and EC free trade negotiations. PT Foundation is calling for a commitment from the Malaysian Government to protect the rights of PLHIV and to ensure easy and affordable access to medication. PT Foundation will be monitoring the negotiations closely to ensure that HIV medicines and healthcare for PLHIV is protected.
 Khor, Martin. (2008). Bilateral and Regioanl Free Trade Agreements: Some Critical Elements and Development Implications. Third World Network, Malaysia, pp78-81.
 Grover, Anand. (2009). Promotion and Protection of all Human Rights, Civil, Political, Economic, Social and Cultural Rights, including the Right to Development: Report of the Special Rapporteur on the right of everyone to the enjoyment of the highest attainable standard of physical and mental health. Submitted to Human Rights Council, Eleventh Session, pp6.
 Ministry of Health, Malaysia. (2010). National Strategic Plan on HIV and Aids 2011 – 2015: Draft Strategic Framework, pp1.