ABSTRACT

Since the signing of the 1994 Marrakesh Agreement establishing the World Trade Organization (WTO) and the included Agreement on Trade-Related Aspects of Intellectual Property (TRIPS), activists, scholars and policymakers have expressed concerns over how the global protection of intellectual property rights (IPR) may affect access to essential medicines. On 31 March 2009, the United Nations (UN) Human Rights Council’s Special Rapporteur on the Right of Everyone to the Enjoyment of the Highest Attainable Standard of Physical and Mental Health, Anand Grover, issued his report on the right to health and TRIPS.1 Grover concluded that the TRIPS and Free Trade Agreements (FTAs) had negatively affected pharmaceutical prices and availability, making it difficult for states to meet their obligations to fulfil the right to health.2 The report was the latest volley in the debate over what appears to be two contradictory aspects of human rights protection: the right to health and the right to intellectual property. As such, reaction to the special rapporteur’s report, predictably, has been split between developed and developing countries. While states such as Egypt and India were supportive of the findings, and particularly critical of the evergreening3 of existing patents, the USA and Switzerland were particularly critical of the findings, arguing that intellectual property has not had an adverse effect on the availability of pharmaceuticals and that the report did not take into account the concerns of states that manufacture medicines.4