The coming into force of the Agreement on Trade-Related Aspects of Intellectual Property Rights (TRIPS) in the mid-1990s led to a massive strengthening of intellectual property rights in the global South. This was particularly controversial concerning restrictions on access to medicines and set the stage for spirited debates concerning the impacts of medical patents on the realisation of the right to health in the context of the HIV/AIDS crisis. Efforts to reconcile the right to health and medical patents led to a minor amendment of the TRIPS Agreement that has hardly had any impact on the ground while further strengthening of patent protection was obtained, for instance, through bilateral agreements. In the human rights field, attempts to strengthen the protection afforded by the right to health have been partly diluted by efforts to strengthen the claims of inventors under human rights law. At this juncture, two main elements need to be taken forward. The first is to revisit our understanding of the human right to health to ensure, for instance, that there is no compromise in the liberal promise of universality, in particular access to medicines for every person who needs them. The second element is the need to rethink the way in which legal incentives are given to innovate. In a context where patents are the only recognised legal incentive to innovate in the medical field, this discourages the development of medicines for diseases that may affect mostly poor patients, since companies need to recoup their investments. Further, it militates against giving attention to other systems of medicine whose innovations can usually not be protected under the patent system, even where treatments are effective.
Keywords: TRIPS Agreement, Access to Medicines, Right to Health, ICESCR
Why Are Generic Drugs Being Held Up in Transit?: Intellectual Property Rights, International Trade, and the Right to Health in Brazil and Beyond