n African Human Rights Law Journal - Achieving social justice in the human rights/intellectual property debate : realising the goal of access to medicines

Volume 13, Issue 1
  • ISSN : 1609-073X
  • E-ISSN: 1996-2096



What happens when the assertion of intellectual property rights by their holders impacts on the human rights of consumers, in particular, their right to access health care and health products such as medicines? Proponents of access to medicines as a human right reference the soft law of human rights and the broad ethical frameworks within which human rights understandings are situated but, paradoxically, the pharmaceutical companies that hold proprietary interests in medicines also claim human rights to their medical discoveries. They argue that the ecology of research and development on medicines is inextricably linked to the possession of exclusive rights in the form of patent and data protections. The proprietary interests of pharmaceutical companies are stringently pursued and enforced by global powers via their trade policy and otherwise. Thus, this article argues that human rights must trump those proprietary rights, for a number of reasons, and seeks to introduce a social justice perspective on the human rights/intellectual property debate. It begins by reviewing the competing paradigms of the right to health versus proprietary intellectual property rights, showing how the human rights regime has achieved superiority in theory, but inferiority in practice. It proceeds to delineate the context in which essential medicines have increasingly become endangered global public goods. This is primarily because of strong intellectual property protections afforded to pharmaceutical companies with the advent of the TRIPS Agreement, TRIPS-plus bilateral and regional trade agreements between the USA and the European Union and developing countries, and other measures designed to broaden, strengthen and lengthen intellectual property protections worldwide. The article then explores the potential for lobbying, advocacy, law reform measures and activism in achieving the objective of 'access to medicines for all', and demonstrates the extent to which human rights advocacy programmes can contribute to doing so through the delivery of rights-based education and training to targeted audiences.

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