Health justice for the global South during a global health crisis: Intellectual property, human rights, and a global health treaty

Abstract

Intellectual property rights (IPRs) refer to legal protections afforded to producers and creators for their intellectual creations and consists of a variety of exclusive rights such as trademarks, trade secrets, copyright, and patents. There are constant interactions between human rights and IPRs, and the fundamental principle at play is balancing these private, exclusivity rights with the public's interest in both the production and dissemination of information and technology.It is argued that IPRs have the potential to diminish the rights to health and society's right to benefit from scientific advancements. It further restricts the free flow of knowledge and ideas, thus stifling further innovation. Counterarguments include that IPRs provide economic incentive for individuals (including juridic persons) to continuously contribute to the betterment of society through innovation. A state's ability to ensure access to affordable medicines and to promote further medical research and innovation, as required by the rights to life, health, and science, can be negatively impacted by IPRs. The current COVID-19 pandemic serves as a good example of the free flow of knowledge and technology from the global North to the global South having been unacceptably slow and disproportionate, with vaccine and treatment shortages having driven many economies to the ground.

Intellectual property (IP) today is regulated by The Agreement on Trade-Related Aspects of Intellectual Property Rights, 1994 (TRIPS). TRIPS is an international agreement between all the member nations of the World Trade Organization. It attempts to establish the minimum standards for IP regulation. But the reality of matter is that big private pharmaceutical companies dominate the market and are currently excluding poor and developing nations from accessing essential medical technologies and medicines by setting high monopoly prices for the use of their inventions. IP and public health care have been interlinked since the dawn of the IP era.

This study will revisit the age-old concern of whether TRIPS could facilitate public health emergencies and more specifically the public health of developing nations. TRIPS does have certain instruments at its disposal when IPRs interfere with effective action during a public health crisis, often referred to as the TRIPS flexibilities. TRIPS flexibilities are virtually unused by countries of the global South. It would seem that they are ineffective for these countries and better suited for countries of the global North during public health emergencies. The TRIPS flexibilities, at the time of their adoption, were helpful to promote access to medicines in a time where supply chains where fairly simple and where patent barriers were the only barriers in place. But since the emergence of free trade agreements, incorporating TRIPS-Plus provisions, have overridden the use of most TRIPS flexibilities and left developing nations vulnerable while protecting the interests of developed countries.

During the COVID-19 pandemic, South Africa and India introduced the proposal of a COVID-19 IP-related waiver. A COVID-19 IP-related waiver would suggest that all IP protections should be temporarily waived until the pandemic is under control. This proposal was received with mixed feelings. It was felt by rich countries that this would lead to diminished incentivisation to continuously improve the vaccine portfolio, and that, even if all countries did have the freedom to produce vaccines themselves, they would lack the know-how and facilities to produce quality vaccines. But various countries of the global South do possess basic infrastructure and resources that, with some assistance from overseas, can develop their potential to replicate and even develop own vaccines. The real issue that this study attempts to address is whether a few pharmaceutical corporations in the global North should retain complete control over whether and where production occurs, and thus control supply, price, and distribution globally. The waiver proposal was eventually watered down and currently does not address the dire need to close the vaccine gap between the global North and South, which will be critically analysed. COVID-19 is not the first, nor is it the last global pandemic we will encounter.

Consequently, a global solution to the COVID-19 pandemic and any other comparable future health crisis would have to establish a balance between patentson vaccines and medicines and access to these. This study asserts that a global health treaty could be the starting point to address the disparities during a global health emergency and should attempt to achieve global health justice by closing the vast gaps in global health equity between the North and South through ensuring fairer distribution of health and scientific benefits. A new health treaty that attempts to provide global access to medical countermeasures must consider the current international law limitations and the vastly different economic realities of all parties to the treaty. A pandemic treaty should promote technology transfer, require knowledge and IP sharing, and create greater transparency. Apart from a liberal use of compulsory licences, parallel imports, and competition law measures, the waiver of IP monopolies on technologies and medicines relevant to the pandemic would be the heart of the treaty.