Squaring-up the conflict between pharmaceutical patents and the right to access to medicines

Abstract

The pharmaceutical patent system seeks to protect the private rights of patentees while at the same time ensure the public right to access to essential medicines. It has been argued that the TRIPS agreement unfairly tilts the balance against the public interest in favour of patentees’ rights. Advocates of the patent system insist that without it, there would be no incentives for future innovation and the pharmaceutical industry would not be able to recoup its investments in Research and Development. Meanwhile, human rights scholars assert that states are obliged to ensure the availability and accessibility to medicines as an indispensable component of the right to health as guaranteed, for example, by the International Covenant on Economic, Social and Cultural rights. While the TRIPS agreement provided several flexibilities to permit states to protect public health, in practice, it makes that task onerous. To remedy the deficiencies in the pharmaceutical patent system in TRIPS, the WTO issued three decisions on TRIPS and Public health. The first (Doha Declaration) represents a forward step towards a fair balance between patents and the right to health. However, the other two decisions (30 August 2003 and 6 December 2005) appear to have negated the fundamentals of the Doha Declaration due to failure to resolve the outstanding issue of generic medicines. Consequently, pharmaceutical patents appear to be in conflict with the human right to health. The conflict echoes that deeply rooted in the underlying principles and goals of the WTO system versus the human rights regime. This dissertation attempts to find a more realistic way forward to guarantee patentees’ interests without inhibiting states, through intellectual property claims, from fulfilling their public health responsibilities in their territories. The dissertation distinguishes between the obligations under both the WTO and human rights systems. It deconstructs the normative and de facto hierarchy of both systems and explains the conflict of norms in public international law. The dissertation also scrutinizes the role of human rights law in WTO disputes settlement to explore whether and to what extent the human right to health is accommodated within the ambit of the patents system in the TRIPS agreement. It concludes that this role is limited to aiding the interpretation process of the WTO agreements rather than being part of the applicable law. The actual and rhetorical practice of the WTO adjudicating bodies emphasize that they favoured WTO law, allowing it to prevail over human rights law. The dissertation recommends several solutions to allow the patent system in TRIPS to take into account human right to health in case of conflict.