Integrating Human Rights into Intellectual Property Policies

Access to medicines (A2M), and particularly to essential medicines, has been recognized as a core component of the right to the highest attainable standard of health. The right to health also requires that medicines be available in sufficient quantity; accessible (including economically); acceptable (including medically); and of good quality. Moreover, the right to health has had powerful consequence in recent years, particularly in national courts, which have repeatedly articulated an enforceable state obligation to provide access to medicines.

Nonetheless, the implications of the right to health for Intellectual Property (IP) policy and R&D policy in particular have only recently begun to attract attention. This GHJP project seeks to address whether and how human rights norms and frameworks can be used to improve A2M by reducing the barriers that IP laws create. Specific outputs include:

Policy paper on Human Rights, Intellectual Property Law, & Access to Meds
In 2013, GHJP produced a policy paper analyzing four possible human rights approaches: (1) the use of human rights arguments in domestic court cases that deal with intellectual property laws, (2) the articulation of norms in the United Nations (UN) human rights system, (3) the use of human rights arguments and frameworks to secure greater pharmaceutical corporate accountability, and (4) the use of health-related rights to build multilateral and regional alliances that can more effectively oppose free trade agreements (FTAs) with TRIPS-plus provisions (read the paper here). The paper provides a critical, up-to-date analysis of how human rights doctrine and arguments might be used at the international and domestic levels to challenge IP laws that undermine health.

Submission to UN Secretary-General's High Level Panel on Access to Medicines
In February 2016, GHJP submitted a paper to the United Nation's Secretary-General's High Level Panel on Access to Medicines, describing the role that the High Level Panel can play in clearly articulating several implications for states and international organizations of the right to health in the context of intellectual property and innovation policy. The submission built on our 2013 policy report and was prepared in response to the High Level Panel's call for contributions on the question of "how to promote innovation and increase access to medicines, vaccines, diagnostics and related health technologies in low-, middle-, and high-income countries.

Comments on South Africa's draft IP Consultative Framework
In September 2016, GHJP and the Program On Regulation, Therapeutics, And Law, submitted comments on South Africa's draft Intellectual Property (IP) Consultative Framework, urging South Africa to: (1) acknowledge the primacy of the right to health when it conflicts with IP protections; (2) adopt a SSE system through patent opposition and/or priority examination; and (3) maximize its use of critical TRIP flexibilities including stricter patentability criteria, government use and compulsory licensing, as well as higher standards for granting interim or final interdicts.