[The Purposes of the United Nations are:] To achieve international cooperation in solving international problems of an economic, social, cultural, or humanitarian character, and in promoting and encouraging respect for human rights and for fundamental freedoms for all (…).
The General Agreement on Tariffs and Trade (GATT) provides the framework for the World Trade Organization as a driver for freer trade. However, critics of the organization have complained that free trade had become inconsistent with human rights obligations. There are often suggestions that various international laws covering trade and intellectual property is in conflict with human rights law. Others defend the system as contributing more to the fulfillment of human rights than many other areas of international law.
The general provisions of GATT’s Agreement on Trade Related Intellectual Property Issues (TRIPS) include that patents shall be available without discrimination. Now, there is a study that looks at the relationship between WTO law with international human rights law, using one of the most prominent examples of such a conflict: the one that exists between international patent law, and access to medication as guaranteed by the International Covenant on Economic, Social and Cultural Rights.
“Human Rights and the WTO: The Case of Patents and Access to Medicines,” by Holger P. Hestermeyer (Oxford Press; 300 pp.) provides a background of international human rights law and the right to health. It then looks at the right to intellectual property
It is therefore a question as to how to guarantee a application of WTO law, in a manner consistent with WTO members’ human rights obligation in health. The major tenets of these arguments are that there is the existence of a legal right to access to medicine, although not explicitly mentioned in any agreement. Further, that the adoption of patent legislation under TRIPS leads to higher drug prices, rendering certain drugs unavailable to portions of the population. And finally, that this price effect can infringe the right of access to medicine, even though the prices are set by private individuals.
This has become a major issue as developing countries try to use of international law to gain access to life saving medicines in light of the price of AIDS medicine, as well as medicines for bird flu and for anthrax.
Human Rights and the WTO discusses the conflict between legal regimes and why patent law and human rights law are in conflict. The current state of international law on the conflict between legal regimes and the origin of such conflicts is analyzed, covering such issues as hierarchy in international law and introducing the concept of ‘factual hierarchy’. The book then turns to the role of human rights law in the WTO system, concluding that such law currently is limited to aiding the interpreting of the WTO agreements. It shows how a further integration of human rights law could be achieved and describes the progress made towards accommodating human rights concerns within the TRIPS Agreement.
One question that book explores is “who is bound by international human rights laws? For even if member countries are bound by such laws, are pharmaceutical companies — those responsible for setting drug prices — also bound by the same obligations? The WTO Declaration explicitly states that “intellectual property protection is important for the development of new medicines” and member countries made an unequivocal point of “reiterating our commitment to the TRIPS Agreement.” Furthermore, the WTO members agreed to address the HIV/AIDS pandemic while “maintaining our commitments in the TRIPS Agreement.”
What’s not so clear, however, is who should shoulder the burden of the healthcare costs? Should it be the drug companies themselves? But, if we allow countries to break patents in order to reduce costs and, concurrently, increase access and treatment of patients, then we are putting 100% of the extra burden on the very company that developed the drug. Meanwhile, multi-billion dollar multi-national corporations are able to maintain their profits because they sell more mundane products like plasma TVs.
This is certainly a topic worthy of further discussion.
“Human Rights and the WTO: The Case of Patents and Access to Medicines” is available on Amazon.
About the Author: Dr. Hestermeyer is admitted to the New York State Bar, he is a former Fulbright Fellow, German National Merit Foundation Fellow and German National Merit Foundation Doctoral Fellow.