Details
- A politically controversial examination of the use of patents on life-saving medicines
- Examines one of the key debates surrounding the world trading system, that of the importance of protecting international human rights norms as part of the WTO legal order
- A fresh examination of the conflict between international patents law and international human rights law
The international trading system has come under increasing attack by activists as being in conflict with human rights law. Others have defended the system as contributing more to the fulfilment of human rights than many other areas of international law. This study examines the alleged conflict of WTO law with international human rights law, using one of the most prominent examples of such a conflict: that between international patent law, ie the TRIPS Agreement, and access to medication as guaranteed eg by the International Covenant on Economic, Social and Cultural Rights. This highly controversial political issue of the appropriate use of international patent law on life saving medicines gained the world's attention during the discussion about the price of AIDS medication, but recent instances also include the availability of the patented medication for bird flu and for anthrax.
The book discusses both the patent law and the international human rights law involved in great depth, distinguishing between obligations under different human rights instruments and including a highly readable introduction into both areas of law. It then explains the concept of conflict between legal regimes and why patent law and human rights law are in conflict. The current state of international law on the conflict between legal regimes and the origin of such conflicts is analyzed, covering such issues as hierarchy in international law and introducing the concept of 'factual hierarchy'. The book then turns to the role of human rights law in the WTO system, concluding that such law currently is limited to aiding the interpreting of the WTO agreements. It shows how a further integration of human rights law could be achieved and describes the progress made towards accommodating human rights concerns within the TRIPS Agreement, culminating in the first ever decision to amend a core WTO Agreement in December 2005.
Readership: Academics, scholars, and advanced students or WTO law, international human rights, and international patents. Also Human Rights Activists, WTO and WIPO practitioners, and representatives of WTO Members
Introduction
1: Background of the Debate
2: Patent Law
3: Access to Medicine as a Human Right
4: Conflict Between Patents and Access to Medicine
5: Access to Medicine as a Human Right in the WTO Order
Annex 1: Summary of Arguments
Annex 2: States and their Membership in Relevant Organizations and Agreements
Annex 3: WTO Disputes on the TRIPS Agreement
Holger P. Hestermeyer, Research Fellow, Max Planck Institute for Comparative Public Law and International Law, Heidelberg, Germany
"A prize-winning legal study...not only readable but also insightful and thought-provoking in its treatment of the conflict between patent law and access to medicines" - The Royal Institute of International Affairs 84:4
"Hestermeyer has written a very good book for legal scholars and for those seeking to master the intricacies of this important area of international law and organization." - World Trade Review
"This book is an excellent analysis of the issues which arise in considering access to medicines at the interface of four areas of law (human rights, trade, intellectual property and international law). Such studies often suffer due to the fact that the author is evidently an expert in one of the areas of law but not in the others. Hestermeyer, ...shows no such weakness" - European Human Rights Law Review
"[T]his work succeeds in adding substantially to the existing body of academic literature...it is a magnificently conducted academic exercise...Based upon a meticulous examination of case law and literature on the topic, the author...provides us with a very well-structured, logically sound and hence very persuasive argument in favour of his position. This volume is a must-read for anyone working on TRIPS, and even beyond this core interest group, any academic or practitioner interested in the interaction between different fields of international law will find this book a rewarding read." - Freya Baetens, International and Comparative Law Quarterly, Vol. 58, Issue 3, July 2009
"Human rights and patent rights have become increasingly intertwined in discussions surrounding access to pharmaceutical drugs by citizens of developing countries...in his excellent book....Hestermeyer has tackled this complex and contentious conflict, disentangled it into its essential constituent parts, including patent law, human rights, and international trade under the World Trade Organisation (WTO) regime and its side-agreeemnt on Trade-Related Aspects of Intellectual Proeprty (TRIPS), and then artfully reconstructed a clear, cogent, and hopeful model of how to approach a resolution. His research is meticulous, his prose spare yet fluent, and his arguments persuasive and well-supported" - Andrew W. Torrancem University of Kansas School of Law, The IP Law book Review
