The human right to medicines in relation to patents in sub-Saharan Africa: some critical remarks

Abstract

Sub-Saharan Africa is affected by the largest burden of diseases in the world and by extremely low access to medicines. The affordability of medicines can be severely reduced by the registration of patents on these products. However, patent protection can increase access to innovative medicines and support other rights, interests, liberties and needs in society. As a matter of fact, most African countries provide patent protection for pharmaceutical products. This article examines whether international human rights law, and in particular a ‘human right to medicines’, can guide and redress the problematic issues of medicine patenting products in sub-Saharan Africa. Besides analysing the human rights law, it discusses whether, normatively, the problem of patents on medicines in sub-Saharan Africa ought to be solved by utilising a human rights framework. The enquiry identifies several strong limitations of human rights law in addressing the problem of access to medicines in sub-Saharan Africa, and presents the concern that human rights may serve biopower rather than function as an emancipatory tool. The relevance and merits of this argument are grounded on different instances of critical–analytical research, including interdisciplinary and empirical research on the operationalisation and implementation of human rights norms relating to access to medicines as well as theoretical insights from socio-legal studies, in particular drawn from Luhmann's social systems theory and Foucault's theory of biopower.