Is the TRIPS Agreement and its' safeguards still a stumbling block in fulfilling the right to health and if so what should be done?

Gill, Alison Elizabeth

Is the TRIPS Agreement and its' safeguards still a stumbling block in fulfilling the right to health and if so what should be done?

Thesis / Dissertation

2010

Publisher

University of Cape Town

Department

Democratic Governance and Rights Unit

Faculty

Faculty of Law

Abstract

In order to meet the Millennium Development Goals by 2015 the world must radically rethink the means of achieving the targets set by these Goals. The developing world is crippled by poverty and disease; HIV/ AIDS is rife in Africa and is spreading at frightening speed to many other parts of the globe. World Health Organisation (WHO) figures suggest that in 2008 33 million people were infected with HIV. Chapter I shall consider the problem of the AIDS/HIV epidemic in more detail and the international response so far. The chapter shall then look at the various sources of international law within a human rights context to determine whether states have an obligation to do something about the disease. Preventative strategies on their own however will not effectively deal with the pandemic; in order to reverse the tide medical professionals also require access to essential drugs to treat patients already infected. One of the greatest hurdles to overcome is the patentability of pharmaceuticals in the health sector; such patents are undoubtedly limiting the availability and affordability of the life saving anti retroviral medicines (hereinafter ARV's) required to treat the disease. If we are to combat HIV/ AIDS and other diseases it is essential that society looks towards changing the pharmaceutical protection that is afforded under the TRIPS Agreement. Under this Agreement pharmaceutical manufacturers are able to patent their brand of drug which prevents other companies from selling the same drug without the patent owner's permission for a potential period of 20 years. At present the vast majority of the world's developing population are unable to afford costly life saving medicines. The TRIPS Agreement and the concept of pharmaceutical patents allow drug manufacturers to keep the cost of medicine high without the fear of competitor drugs and the medicines can therefore be given an artificially high price. In the context of HIV/AIDS, in developing countries where people often have to pay for ARV's out of their own pocket it is vital that they are affordable. Countries like India have previously been able to manufacture cheaper generic medicines as the pharmaceutical industry was not protected under Indian patent law, but since the introduction of the TRIPS Agreement, pharmaceuticals now fall under the rules of international intellectual property protection. Chapter 2 aims to discover the concept behind intellectual protection for pharmaceuticals, it shall also look at the international regulatory bodies of intellectual property. The World Trade Organisation is the international forum in which the TRIPS Agreement was born and one of the main objectives of the organisation as a whole is to increase standards of living, yet the concept of drug patenting appears to contradict this objective. The TRIPS Agreement therefore includes flexibilities to allow WTO Members to be able to provide essential medicines including ARV's to the public, Chapter 3 shall begin by looking at the TRIPS Agreement and the safeguards provided within the agreement. Over the last decade the provisions of the TRIPS Agreement has been a disputed issue and the Agreement has undergone changes during further WTO negotiation rounds. Concerns were aired during the World Trade Organizations negotiations in 2001 at the Doha Ministerial Conference and the topic has remained a controversial one ever since. Chapter 3 shall continue by looking at the international declarations created from recent WTO negotiations. Developing countries are pushing for an even broader scope of patent applications which would result in more pharmaceutical products becoming patentable for 20 years. As the process of globalisation continues, new trade agreements are having a greater impact upon access to drugs. On the one hand inventors should be rewarded for their efforts in researching and developing medicines, on the other, humanity has a right to health which includes access to treatment. International Law is often faced with conflicting rights; in this situation a balance must be struck which reflects the interests of the right to health and the right to intellectual property protection. In recent years the link between the right to health and the topic of medical patents has become an issue for debate on the world stage. The enforcement of the Agreement on Trade-Related Aspects of Intellectual Property has to some extent harmonized patent laws and set a higher minimum standard of protection and for the enforcement of intellectual property for countries to guarantee. This has greatly worried many developing nations and health organisations in relation to the impact this has on access to essential medicines especially in the area of HIV/ AIDS treatment. Chapter 4 shall look at the conflicts of norms in international law and how such situations should be dealt with in both a human rights context and within the WTO framework. Modern technology makes it possible to treat many diseases including HIV, however until an effective mechanism in dealing with the problems of patenting is enforced the health of some of the poorest nations are unable to benefit. Chapter 5 shall look to the possible solutions in solving this conflict. The outcome of this dissertation is to show that the current (amended) Agreements and Declarations are still failing in their intention to provide that balance between the right to health and intellectual property rights, using access to HIV/ AIDS medicines as a prime example. It shall be argued that conflicts between these norms in International Law must be addressed, and the current flexibilities in the TRIPS Agreement should be reviewed.