3 - The Interface between Patent Rights and the Right to Health under International Human Rights Law

Summary

This chapter answers two key questions, integral to the issues addressed in this book. First, are patent rights human rights under international human rights law? Second, is the incorporation of a model of human rights compatible with the TRIPS Agreement? The answers will determine whether developing countries can successfully incorporate a model of human rights into the design, implementation, interpretation, and enforcement of their national patent laws. Section 3.2 examines the human right to health under international law. Section 3.3 provides an analysis of the nature of the relationship between patent rights and the right to health under international human rights law and answers the first key question. Section 3.4 examines the extent to which the TRIPS Agreement permits developing countries to fulfil their right to health obligations and answers the second key question. The chapter concludes with the view that patent rights should not be considered as human rights under international human rights law and that the model of human rights is compatible with the TRIPS Agreement. Thus, there is nothing that prohibits a developing country from insisting on the primacy of human rights obligations when attempting to resolve the tension between patent rights and the right to health at the national level.