15 - The role of national laws in reconciling constitutional right to health with TRIPS obligations: an examination of the Glivec patent case in India

Summary

Introduction

Together with the notion that people should have access rights over external resources, and that people have rights over their own persons and powers, another notion has gained ground – the idea that people should have access, as a matter of moral right, to certain welfare conditions. A moral right, as Henry Shue states, provides the rational basis for a justified demand, that the actual enjoyment of a substance be socially guaranteed against standard threats. This notion in fact became the very grounds on which group rights and human rights were claimed, as moral minimums or ‘basic rights’ – basic because they precondition the enjoyment of all other rights. The right to health is one such right, premised on the fact that ill health leaves a person incapable of engaging in autonomous activity and therefore enjoying any rights that protect such activity. The classification of health as a basic right is useful in order to qualify this right as vital to a minimally adequate existence and, in so doing, justify the priority of this right over rights that are based on wants or desires. From the perspective of this chapter it is important to draw this distinction so as to assert the primacy of the right to health vis-à-vis innovators' rights protected by the Trade-Related Aspects of Intellectual Property Rights (‘TRIPS’ or ‘TRIPS Agreement’) regime, which are more in the nature of economic rewards stimulating innovation and not, generally, preconditioning survival.