TRIPS AND RIGHTS: ACCESS TO MEDICINES, INTERNATIONAL HUMAN RIGHTS LAW, AND THE INTERPRETATION OF THE WTO TREATY ON INTELLECTUAL PROPERTY RIGHTS

R Elliott
Canadian HIV/AIDS Legal Network

Objectives: People and countries with scarce resources need affordable medicines. Strict patent laws keep drug prices high. The Agreement on Trade-Related Aspects of Intellectual Property Rights (“TRIPS”) sets out minimum requirements for patent laws for World Trade Organization (WTO) member countries, affecting millions. States have binding obligations under international human rights (IHR) law to progressively realize each person’s right to the highest attainable standard of health. But political negotiations, and decisions of WTO tribunals, have given scant consideration to the impact of IHR law in interpreting and applying TRIPS. The objective was to identify the correct legal interpretation of TRIPS.
Method: A paper examined the sources of international law such as treaties (eg, UN Charter and IHR conventions), customary international law (eg, Universal Declaration of Human Rights), and legal doctrine (judicial decisions and teachings of experts such as General Comments of UN Committee on Economic, Social & Cultural Rights). The paper outlined the status of the right to health in international law and analysed the relationship between IHR law and trade agreements. The paper applied established rules of treaty interpretation to determine the correct interpretation of TRIPS.
Results: States’ human rights obligations have primacy in international law. Therefore, TRIPS must be interpreted in a fashion consistent with these superseding obligations. Where this is not possible, States’ obligations under TRIPS must be recognized as non-binding to the extent of the conflict with IHR law.
Conclusions: States should formally recognize the primacy of their human rights obligations, through a clear WTO Ministerial Declaration. In interpreting TRIPS, WTO tribunals must prefer any reasonable interpretation consistent with States’ human rights obligations. TRIPS should be amended to state the primacy of States’ human rights obligations, and to recognize the non-binding nature of clauses that require States to act in breach of its obligations under IHR law.