In this paper, we address whether and how human rights norms and frameworks can be used to improve access to medicines (A2M) by reducing the barriers that intellectual property (IP) laws create to such access. We evaluate the feasibility and usefulness of four human rights- based strategies that our contacts in the A2M community suggested might be particularly productive: (1) the use of human rights arguments in domestic court cases that deal with intellectual property laws, (2) the articulation of norms in the United Nations (UN) human rights system, (3) the use of human rights arguments and frameworks to secure greater pharmaceutical corporate accountability, and (4) the use of health-related rights to build multilateral and regional alliances that can more effectively oppose free trade agreements (FTAs) with TRIPS-plus provisions (TRIPS being Trade-Related Aspects of Intellectual Property Rights). We offer insights and specific short- and long-term action steps for each strategy, including recommendations for further research.
We also offer this brief executive summary of each of the four sections that follow.
In the first section, we address how, in the past few years, domestic courts have displayed a growing willingness to use human rights laws to reinterpret and even strike down IP laws that impede access to medications. For example, a court in India concluded that it could not issue injunctions in patent cases where the result would be a substantial increase in the price of medicines, relying in part on the right to life in the Indian constitution. A court in Kenya struck down an “anti-counterfeiting” law as a violation of the right to health in the Kenyan constitution. And a court in Colombia concluded that local health rights required it to enforce price control requirements (if not issue a compulsory license, as activists argued). If the logic of these cases were successfully extended to other countries and other areas of doctrine, domestic human rights protections could serve as a powerful fulcrum to help dislodge harmful intellectual property laws. Judicial articulation of the relationship between the right to health and intellectual property law might also legitimize broader political actions that prioritize the right to health over intellectual property protection. Although such court cases have not always succeeded, and gains have been incremental thus far, this strategy appears to be gaining momentum. We recommend that activists prioritize the pursuit of human rights arguments in IP-related court cases at the national level. We consider this to be the most promising of the four approaches we have considered, with the greatest likelihood of providing real results for access in the near future.
The second section considers how a number of international human rights treaties contain rights that bear on access to medicines. A variety of UN human rights bodies have already begun to develop law at the intersection of health-related rights and IP. An important general comment, for example, makes it clear that access to medicines is a component of the right to health. Human rights bodies have also recognized that TRIPS can negatively impact access and have urged states to utilize TRIPS flexibilities and avoid TRIPS-plus provisions in FTAs. But existing articulations of these obligations remain somewhat underspecified and are often couched in terms that leave much discretion to states. At least one recent human rights document, however, suggests that states “must” use TRIPS flexibilities, at least in certain circumstances. There is potential to build upon this work, to enunciate more specific obligations, and to stimulate more focused reviews of state practice. However, processes for achieving these results within the UN system are challenging. Pursuing a system-wide strategy that incorporates all of the political and expert bodies would require tremendous resources with uncertain rewards. We recommend that A2M activists assess and pursue selected human rights mechanisms that are likely to be the most feasible and productive, especially as applied in specific, strategic moments and country contexts. This may be particularly valuable to help support and disseminate successes at the national level.
The third section engages with the question of corporate accountability. Pharmaceutical corporations have traditionally rejected the notion that they have obligations under the right to health, in part because the international human rights system has not historically considered corporate actors to be directly governed by human rights law. Recent developments, including the emergence of the Working Group on Business & Human Rights, may give A2M activists new tools for campaigns against companies. Some, however, have concerns about the limits of the norms that are being developed in this process, which tend to be modest, for example focusing on transparency. In campaigns, however, human rights language continues to be an important moral resource for targeting corporate conduct. We recommend further discussion by activists of the benefits and limits of formal human rights work on corporate liability, and that “informal” human rights language be invoked in campaigning to help concretize norms on pharmaceutical companies’ moral and legal obligations.
The fourth section notes that activists already utilize human rights arguments to oppose TRIPS-plus provisions in FTAs. Human rights arguments could be additionally employed at all political levels by activists to generate political will and foster solidarity for the formation of multilateral alliances. Heightened negotiating power resulting from south-south alliances framed around human rights could provide developing countries with the opportunity and strength to oppose TRIPS-plus FTA provisions and stem the proliferation of IP norms that threaten access to medicines. Human rights arguments may provide a useful set of norms to help ensure that resulting alliances remain committed to protecting the right to health. We recommend that activists continue to invoke human rights as a political tool to encourage south-south alliances, particularly informal ones, and to help generate leverage against regressive FTAs.
Finally, the paper concludes with several appendices that we hope will be of use to activists working on these issues. Appendix A gathers the most important recent domestic court cases in the area and describes their key holdings. Appendix B collects and describes the most important international human rights documents and standards relevant to IP and A2M. Appendix C offers clarification on the evolution of principles of corporate obligations to respect human rights.