Does One Size Fit All? Patents, the Right to Health and Access to Medicines

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Abstract

The question posed in this article is whether the right to health and patents conflict or coexist. This question is examined from the perspective of the issue of access to affordable medicines in developing countries focusing on the right to health as set out in the ICESCR and patent standards (and flexibilities) as required by the TRIPS Agreement. In the strict sense, there is no conflict between the right to health and patents. ICESCR and TRIPS do not contain mutually exclusive obligations. Yet, it is shown that tension between the two does exist. There are a number of ways in which such tension can be resolved. The UN Sub-Commission for the Promotion and Protection of Human Rights has contended that human rights should enjoy primacy over patents, yet there is no evidence to suggest that the right to health and/ or access to essential medicines are considered prioritised norms under international law. The WTO disagrees and views IPRs and human rights as complementary. In international law there is a strong presumption against conflict. In line with the principle of systemic integration a good faith interpretation of the relevant WTO and human rights provisions should lead to a reading of TRIPS' obligations which is coherent with human rights law. However, this balancing act must also take place at the domestic level and the success of such a coexistence approach, namely whether (developing) states are able to strike a balance between access to medicines and patent protection, will depend much on the actual implementation and interpretation by states. Consequently, some examples of state practice regarding the interpretation and implementation of TRIPS in light of the right to health are highlighted.
Original languageEnglish
Pages (from-to)445-473
JournalNetherlands International Law Review
Volume62
Issue number3
DOIs
Publication statusPublished - 2015

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