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The Right to Health and Constitutional Imperatives for Regulating the Exercise of Pharmaceutical Patent Rights in Sub-Saharan Africa

Document Cited authorities 7 Cited in Related
Vincent
Date01 June 2013
Pages250-278
AuthorPoku Adusei
Published date01 June 2013
DOI10.3366/ajicl.2013.0061
INTRODUCTION

The last half-century has spawned a considerable debate about human rights and its regime complex.1

See S. D. Krasner, ‘Structural Causes and Regime Consequences: Regimes as Intervening Variables’, in S. D. Krasner (ed.), International Regimes, Cornell University Press (1983), p. 2.

This regime complex consists of a web of interlocking national laws, constitutions, customs and practices, judicial decisions, and international and regional agreements regarding human rights. Also prominent in the human rights rhetoric is a growing body of academic literature describing human rights norms as: jus cogens, global morality, obligations erga omnes, universal entitlements, the ‘veritable Magna Carta’ of humanity, and the inherent dignity and worth of humans.2

For a plethora of pro-human rights metaphors, see W. A. Cann, ‘On the Relationship between Intellectual Property Rights and the Need of Less-Developed Countries for Access to Pharmaceuticals: Creating a Legal Duty to Supply under a Theory of Progressive Global Constitutionalism’, 25 University of Pennsylvania Journal of International Economic Law (2004): 755.

 In legal circles, the concept of human rights has attained a high priority status in the hierarchy of international legal norms as compared with private interests in pharmaceuticals. Indeed, human rights norms are universal ideals that transcend any limitations and inadequacies associated with the Western concept of property ownership that supports the grant of exclusive rights over knowledge goods, such as medicines, to patentees (which include many pharmaceutical companies). Equally, the concept of human rights is immune to the criticisms levelled at the globalised patent regime and its workings in Sub-Saharan Africa (hereinafter SSA or Africa).3

For a critique of the regime of patents and how it impedes access to life-saving medicines, see P. Adusei, ‘Regulatory Diversity as Key to the “Myth” of Drug Patenting in Sub-Saharan Africa’, 54(1) Journal of African Law (2010): 26.

However, despite the superior legal status of human rights norms and the frequent use of pro-human rights metaphors in policy and academic discourse, the realisation of the fundamental right to health,4

Other terms commonly used in the literature to describe health as a human right include ‘the right to health care’, ‘the right to medical care’ and ‘the right to health protection’. In this article, I use the terms ‘right to health’ and ‘right to health care’ interchangeably to describe the protection of health as a human right. Whereas the former term is mostly used in international human rights treaties, the latter term is more realistic in terms of implementation. The right to health also encapsulates the right to access medicines.

which includes the right to access medicine, treatment and prevention measures, still faces significant challenges in SSA. The lack of adequate health care arises partly because patents make the cost of access to life-saving medicines prohibitively expensive for the sick population in less developed countries.5

See C. Correa, ‘Trade Agreements on Intellectual Property and Public Health in Developing Countries’, in Globalization and Access to Drugs, WHO (1999), p. 82.

 The preference for patents as a regulatory tool does not encourage efforts to develop other regulatory policies aimed at promoting the affordability of and/or access to essential life-saving medicines in SSA. In consequence, access to medicine as a human right6

The UN has put it beyond doubt that access to medication in the context of epidemics is an essential human right: see UN Commission of Human Rights, Access to Medication in the Context of Pandemics Such as HIV/AIDS, UN Doc E/CN.4/RES/2001/33 (2001); WHO, The World Medicines Situation, WHO (2004).

 is constrained by the grant of pharmaceutical patent rights to private corporations, which regulate the prices of patented medicines on the market. Worse still, the public health crises epitomised by the human immunodeficiency virus/acquired immunodeficiency syndrome (HIV/AIDS), malaria and tuberculosis (TB) epidemics add another layer of complexity to the already fragile healthcare services in SSA. Conceivably, the incidences of HIV/AIDS, malaria and TB epidemics have outpaced governments’ treatment capacities, and millions of people in SSA are deprived of their fundamental right to health.7

R. Quadir, ‘Patent Stalemate? The WTO's Essential Medicines Impasse between Pharmas and Least Developed Countries’, 61 Rutgers Law Review (2009): 437, 444.

The goal of this article is to explore the intersections between human rights law and patent law in light of the access to medicine challenges in SSA. It proceeds on the premise that HIV/AIDS, malaria and TB epidemics raise fundamental human rights issues in terms of both the rights of persons infected and the lack of access to medicines to treat these pandemics in SSA.8

See Cann, supra note 2, p. 756.

It argues that the protection of the fundamental right to health should serve as a corrective measure against excessive exploitation of pharmaceutical patent rights in SSA. Human rights offer a framework for action to compel governments to provide healthcare services to their citizens and to alter the conditions, including unfair industry practices, which create, exacerbate and perpetuate deprivation and marginalisation in SSA.9

See S. Gruskin, ‘Rights-Based Approaches to Health: Something for Everyone’, 9 Health and Human Rights (2006): 5.

 Indeed, adopting a human rights-based approach to patent law making will provide specific guidance to policy makers to create exceptions to private pharmaceutical patent rights in SSA. In addition, a rights-based paradigm justifies trumping rigid pharmaceutical patent rules in favour of the right to health guaranteed in transnational human rights instruments and national constitutions in SSA. The salient point here is that human rights norms, with particular emphasis on the right to health, have a higher normative and constitutional value than WTO patent law.10

H. Hestermeyer, Human Rights and the WTO: The Case of Patents and Access to Medicines, Oxford University Press (2007), p. 203.

Following this introduction, part II of this article discusses the general intersections between patent law and human rights law. In recent years, the use of patents as instruments to promote public health has attracted significant attention and recognition in international patent policy. This part contributes to that debate and also responds to controversies surrounding the role of patents in promoting access to medicines in SSA. In essence, increasing access to effective, safe and affordable medicines is considered to be a crucial element of healthcare delivery in SSA.

Part III details the provisions in international instruments, which oblige states to respect, protect and fulfil their obligations regarding health and health care. Specifically, I discuss the scope of the provisions on the right to health guaranteed in international documents, such as the Universal Declaration of Human Rights, 1948 (UDHR),11

Adopted by the UN General Assembly on 10 December 1948: UNGA Res 217A (III). As a General Assembly Resolution, the UDHR is hortatory. Nevertheless, scholars agree that the UDHR exerts a binding effect of customary international law.

the International Covenant on Economic, Social and Cultural Rights, 1966 (ICESCR),12

Adopted on 16 December 1966, 993 UNTS 3 (entered into force on 3 January 1976).

 and the International Covenant on Civil and Political Rights, 1966 (ICCPR).13

International Covenant on Civil and Political Rights, 16 December 1966, 999 UNTS 171 (entered into force on 23 March 1976).

 In addition, I analyse the normative content of the right to health in human rights discourse

Part IV discusses the obligations of SSA countries to protect the fundamental right to health under the African Charter.14

African Charter on Human and Peoples’ Rights, 27 June 1981, 21 ILM 58 (entered into force on 21 October 1986).

Here, I discuss how the right to health guaranteed under the African Charter has been interpreted by the African Commission on Human and Peoples’ Rights (African Commission) in human rights jurisprudence. The African Commission has the mandate to promote and ensure the protection of human rights throughout the African continent.15

See African Charter, ibid., articles 30, 31 and 41.

 This part also discusses some states’ practices that support the proposition that the right to health has become a general principle of international law

Part V moves the discourse from the realms of transnational law into the field of domestic protection of the right to health in SSA. It posits that the fundamental right to health has been enshrined in many national constitutions in SSA and this trend gives especial significance to the right to health in human rights discourse at the domestic level. Consequently, I employ the twin concepts of constitutional supremacy and the primacy of human rights to justify why the right to health should trump any patent limitations in order to facilitate access to medicines for the masses affected by epidemics in SSA. Here, I employ the South African constitutional jurisprudence on the protection of the right to health to inform this discussion. Part VI concludes this article.

 ON THE INTERSECTIONS BETWEEN PATENTS AND HUMAN RIGHTS

Historically, patent law and human rights law evolved as relatively distinct concepts. Whereas patents are considered to be strict private property rights and thus not deserving unwarranted public interference, the right to health is viewed as a human aspiration for which a state should endeavour to provide. Perhaps, patent law and human rights practitioners failed in the past to fully appreciate how either body of law could aid or threaten each other's sphere of influence or opportunities for expansion.16

L. R. Helfer, ‘Human Rights and Intellectual...

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