September 5, 2013
Source: Media.wix.com
NEW HAVEN –Human rights norms and frameworks could be instrumental in expanding
access to medicines (A2M) around the world by providing leverage against inappropriate
intellectual property (IP) laws, according to a new policy paper produced by the Yale
Global Health Justice Partnership.
Over the last decade, it has become clear that patents – and the international trade laws
that require countries to provide them – can be very dangerous to health, particularly in
developing countries. Patents increase the price of medicines and so decrease access to
them. As a result, millions of people in middle- and low-income countries cannot afford the
drugs they need to be healthy. There is thus a clear link between intellectual property law
and human rights, and in particular the right to health. But it is only recently that the
concrete implications of health-related rights for intellectual policy have begun to be
articulated.
This paper provides a critical, up-to-date analysis of how human rights doctrine and
arguments might be used at the international and domestic level to challenge intellectual
property laws that undermine health. It identifies the domestic and international doctrine
that creates a foundation for a new and more vigorous human rights approach to IP law,
identifies key areas for research, and outlines possible next steps.
Access the paper here
Specifically, the paper evaluates four domains where human rights-based strategies might
have greater impact if further developed: (1) in domestic court cases that deal with IP laws;
(2) in the United Nations human rights system; (3) in efforts to promote corporate
accountability among pharmaceutical companies; and (4) in multilateral and regional
alliances intended to more effectively oppose free trade agreements (FTAs) that threaten
health.
The paper identifies work at the national level as particularly promising, citing several
important recent cases where courts have used constitutional human rights protections to
limit or invalidate IP law. For example, a court in Kenya recently struck down a law that
threatened generic medicines, citing human rights grounds. A court in India also recently
refused to allow a patent-holding company to bar a generic company from the market,
again reasoning – on human rights grounds – that the implications for access to medicines
would be too severe.
“The report demonstrates that courts are beginning to understand that intellectual
property rights cannot be interpreted and protected in a vacuum; they must be read co-extensively with other, more fundamental rights, such as the right to health. We hope that
the report helps activists and lawyers to make more effective use of human rights law to
improve access to medicines. More specifically, we hope this paper spurs the development
of more detailed litigation strategies that can be used in nations that respect the right to
health,” said Hannah Brennan (YLS ’13), one of the report’s authors.
A leading international lawyer and IP expert, Carlos Correa, said: “Human rights, once seen as a diffuse ideal, are becoming a concrete and effective tool to mitigate the impact of
intellectual property rights in the area of public health. This report shows an interesting
evolution from the concept that States have the right to use TRIPS flexibilities to the idea
that they have a duty to do so under their human rights obligations, as well as how these
obligations have been enforced by national courts in cases where access to medicines was
at stake. The report provides useful insights on ways in which governments, NGOs and the
private sector can contribute to move human rights from concept to practice.”
The paper also recommends that activists assess and pursue select human rights
mechanisms at the United Nations, especially as applied in specific, strategic moments and
country contexts; advance discussions of how human rights norms can be used to enhance
corporate accountability; and continue to invoke human rights to form alliances and resist
regressive FTAs.
“We believe that human rights-based strategies are not a panacea, but they could make a
real difference if access to medicines activists develop the strategies analyzed in this paper
in a targeted way and build campaigns that take advantage of the potential linkages among
strategies,” said Miriam Hinman (YLS ’15), another report author.
The Global Health Justice Partnership is an initiative of Yale Law School and Yale School of
Public Health that works at the interface of global health, human rights, and social justice.It
trains the next generation of scholars and practitioners to tackle the complex
interdisciplinary health justice challenges and mobilizes research to help drive the social
change necessary for improving the health and wellness of people around the world.
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