Intellectual property rights, human rights and the right to health

Abstract

The paper analyses tensions between intellectual property rights, human rights and the right to health in four respects. First, it considers whether intellectual property rights are human rights by reappraising, in particular, Article 27 of the Universal Declaration of Human Rights, Article 15(1) the International Covenant on Economic, Social and Cultural Rights, and the report of the High Commissioner on Human Rights on the impact of the Agreement on Trade-Related Aspects of Intellectual Property Rights (TRIPS). Second, it looks at the tensions between intellectual property rights and the right to health, specifically in relation to whether a rights-based approach to health can be used as a mechanism to facilitate access to medicines, re-examining Article 25 of the Universal Declaration of Human Rights and Article 12 of the International Covenant on Economic, Social and Cultural Rights. Third, it discusses the implications of the right to health for intellectual property rights with reference to the experiences of using a human rights-based discourse to assert the right to health in the context of pharmaceutical product patents, compulsory licences and access to medicines, particularly anti-retroviral drugs for people living with HIV/AIDS in Brazil and South Africa. Fourth, the paper concludes by drawing attention to two significant initiatives at the World Health Organisation (WHO) with human rights implications: the WHO the Resolution on Public Health, Innovation and Essential Health Research and Intellectual Property Rights of 27 May 2006; and the WHO Global Strategy and Plan of Action on Public Health, Innovation and Intellectual Property of 24 May 2008.