ABSTRACT
This chapter discusses the human right to health in the context of patent protection and access to medicines. It examines the extent to which human rights considerations are relevant in the domestic implementation of trade and IP instruments and whether a country can rely on its human rights obligations in exploring the flexibilities in the Agreement on Trade Related Aspects of Intellectual Property Rights (TRIPS) discussed in Chapters 1-5. It considers the limitations in international human rights law especially in relation to socio-economic rights that make it difficult for the right to health to be a potent justification for derogation from trade or IPRs. The potential for conflicts between IP, international trade law and human rights is examined. The chapter discusses access to medicines as an integral part of the Sustainable Development Goals and the extent to which the human right to access to medicines may be justiciable in Africa under national and regional instruments. It posits that even where international human rights obligations are not directly enforceable by national courts, such courts are nonetheless obliged to apply their national laws, as much as possible, in a way that gives effect to their international human rights obligations.
