The European Union (EU) and India have been discussing a Free Trade Agreement (FTA) since 2005, but it has not been agreed upon yet. One of the issues in the negotiations, but perhaps more importantly an issue for health related NGOs in developing countries, is the strict regime the EU would want India to implement relating to Intellectual Property Rights (IPR). India is already a member to the World Trade Organization, which means that it is also a member to the Trade-Related Aspect of Intellectual Property Rights (TRIPS) agreement. The EU considers that India’s protection of IPR is still not strict enough.
Reactions to this FTA are strong, especially from international organisations that need India’s generic medicine to be able to afford the treatments they are providing to poor countries. I will limit my analysis to HIV victims. According to Médecins Sans Frontières (MSF), because of the competition among companies selling generic medicines, prices have dropped dramatically; as an example, HIV medicine has dropped 99% in the past ten years. India is an essential player on this field, as “more than 80% of the HIV medicines used to treat 6.6 million people in developing countries come from Indian producers, and 90% of pediatric HIV medicines are Indian-produced”. MSF is particularly worried of the enforcement measures sought by the EU: it could prevent generic medicine to leave the Indian ports or even threaten MSF and other humanitarian organizations with judicial proceedings.
In other words, the consequences of the FTA on the access to HIV treatment for patients in developing countries would be devastating. But how can these predictable consequences not be taken into account by the EU? Or rather, how is it that the lobbying of pharmaceutical companies is more important to the EU than the deaths of so many? Meanwhile, the EU boasts about being involved in human rights protection; and the European Community “promotes” human rights by including “human rights clauses” into their bilateral trade agreements. But can this be sufficient, from a human rights point of view? Can states use beautiful words in one provision of an agreement, just to better conceal the actual consequences of the next provision?
The Council of Europe has adopted the European Convention on Human Rights (ECHR). The EU is not for now a member to that convention because it has to access it formally, but since the Lisbon Treaty entered into force, on the 1st December 2009, it has the legal obligation to access it. Anyhow, all of the EU members have ratified the ECHR, so there should be no problem of application of the convention to its members. I claim that the ECHR should be applied to the EU political decision to pressure India into implementing strict IPR laws, knowing that the effect will be that thousands if not millions of people will suffer and die of HIV. I will thus argue that this decision is in violation of articles 2 and 3: the right to life and the prohibition of torture, fundamental articles of the ECHR.
One issue of jurisdiction that may arise is that of the extra-territoriality of the consequences of the EU decision. The EU would probably answer that the deaths would not be directly caused by their actions, and that the deaths are not under the “jurisdiction” of the ECHR as they would most likely not happen in Europe.
The decision itself is not extra-territorial: it is taken by states in Europe. Hence the legal reasoning I suggest here is that followed in Soering v. United Kingdom, where the decision is taken in Europe but the consequences would be suffered elsewhere following a European state’s decision. In this decision, the European Court for Human Rights (ECrHR) decided that the UK would commit a violation by extraditing Soering because “substantial grounds” had been shown that he would face a “real risk” of suffering inhuman or degrading treatment in the US. I argue that in the case of the FTA, no less substantial grounds could be established and that the risk is no smaller; and furthermore that the victims would be countless and the suffering arguably more important than in Soering’s case.
Economic profits for European pharmaceutical companies could hardly serve as a defence or a justification for the EU decision. Murders and inhuman treatments cannot be committed with the excuse of being for profit instead of political motives; it changes nothing to the result and it should not be more acceptable. The EU cannot even say that it is a mere bystander in front of India’s actions; it is rather an instigator, pushing India through economic threats to change its laws. Allowing this amounts to letting the EU do indirectly what it could not do directly.
 India has been a member of WTO since 1st of January 1995. World Trade Organization, “Member information” online at http://www.wto.org/english/thewto_e/countries_e/india_e.htm
 World Trade Organization, “TRIPS” online at http://www.wto.org/english/tratop_e/trips_e/trips_e.htm
 Centre for the Analysis of Regional Integration at Sussex, “Qualitative analysis of a potential Free Trade
Agreement between the European Union and India” (University of Sussex; 2006-2007) pp. 50-52
 Médecins Sans Frontières, “EU-India Trade Deal Could Cut Medicines Lifeline for People in Developing Countries” (10 February 2012) online at http://www.msfaccess.org/about-us/media-room/press-releases/eu-india-trade-deal-could-cut-medicines-lifeline-people
 This report requested by the European Commission to the University of Sussex clearly and generously mentions European pharmaceutical companies’ interests in the protection of IPR. Centre for the Analysis of Regional Integration at Sussex, “Qualitative analysis of a potential Free Trade Agreement between the European Union and India” (University of Sussex; 2006-2007) pp. 50-52
 Barbara Brandtner, “Human rights and the external relations of the European Community: an analysis of doctrine and practice” (1998) 9 EJIL 468
 Council of Europe, “European Convention on Human Rights” online at http://conventions.coe.int/Treaty/en/Treaties/Html/005.htm
 Council of Europe, “EU accession to the European Convention on Human Rights” online at http://www.coe.int/lportal/web/coe-portal/what-we-do/human-rights/eu-accession-to-the-convention
 Soering v. United Kingdom (1989), A161 EHCR
 Ibid at para. 91.