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KMID : 0986720150230010069
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Korean Journal of Medicine and Law
2015 Volume.23 No. 1 p.69 ~ p.91
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A Clash of Rights and Costs: An Examination of Restrictions to the Realization of the Right to Health from the Perspective of International Human Rights Law
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Jung Min-Soo
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Abstract
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Although health is recognized as a dignified value today, research on whether it is guaranteed as a right to health on the juridical level remains insufficient. The present study examines problems related to international human rights law that arise in the clash of the right to health and patent rights from the perspective of costs. In the case of Gleevec, an anti-cancer drug indispensable to leukemia patients, or Fuzeon, a therapeutic agent that replaces antiretroviral drugs for HIV/AIDS patients, patients have had to pay high prices to protect patent rights to new drugs. However, because most of the multinational pharmaceutical companies that possess patents to new drugs are based in advanced countries, patients in developing countries or low-development countries, which have weak research and development (R&D) foundations, have had low accessibility to indispensable pharmaceutical drugs due to price barriers. To resolve such problems, the right to compulsory licensing has been included in the Agreement on Trade-Related Aspects of Intellectual Property Rights (TRIPS) of the World Trade Organization (WTO) so that nations faced with crises can limit patents in order to protect their citizens’ health. However, this has been applied only in a restricted way, from the perspective of exceptionalism, and therefore has been limited in strongly protecting the right to health. Restrictive of human rights, the argument that the protection of patent rights activates the R & D of new drugs, thus bringing even greater benefits to the entire human race, has aggravated a tendency toward excessive pharmaceuticalization. Regarding this, the Treatment Action Campaign (TAC), led by non-governmental organizations (NGOs) worldwide in sub-Saharan Africa, has taught many lesions. Organizing grassroots groups, the TAC has guaranteed the justiciability of the right to health in Africa and expanded the horizons of international human rights law so that the right to health can be recognized as a value more fundamental than that of patent rights.
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KEYWORD
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Right to health, Human Rights, Trade-Related Aspects of Intellectual Property Rights, Treatment Action Campaign, Justiciability
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