Patents, morality and the WTO; The African question

Human Rights and the WTO: the Case of Patents and Access to Medicines is the title of a remarkable book by Holger P. Hestermeyer, published by Oxford University Press. Dr Hestermeyer is a Senior Research Fellow at the Max Planck Institute -- not THE MPI which we IP lawyers all know and love, the one that lives in Munich, but the Max Planck Institute for Comparative Public Law and International Law, Heidelberg. According to the publisher's blurb

"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".

The IPKat finds it strange to be looking closely at a subject he knows very well, but viewing it through someone else's microscope and having to use someone else's conceptual vocabulary in order to explain it. It's an excercise that is well worthwhile, though. Anyone who doesn't have the time or the inclination to read this book -- which is not actually as long as it seems -- can benefit hugely from the summary of arguments in Appendix 1 (this is a really neat idea which should be shamelessly copied by others, particularly when the book in question is 'the book of the thesis'.

Bibliographical details. Price: £60 (Hardback). ISBN-13: 978-0-19-921520-1; hardback. xxxvi + 369 pages. Rupture factor: low to medium. Further details from publisher's website here.


The IPKat has been asked a question recently: "Is there any interest in the publication of a weblog that would focus specifically -- and entirely -- on intellectual property developments across the vast continent of Africa?" Africa consists of over 50 countries and a wealth of divergent cultures, but there are many IP issues (counterfeits, access to medicines, stimulating innovation, recording and broadcasting) that they share in common. Yet the IPKat can't point his finger to any reliable source of news and comment on IP legal, commercial and political issues. A weblog would not solve all the problems of IP in Africa, but it could at least help raise the level of knowledge and understanding that is the first step to making Africa more IP-savvy.

If an African IP weblog were to be established and you think you'd be interested in reading it, can you email the IPKat here and let him know. You will be kept informed in the event that there should be any developments.