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'Rights' and Wrongs: What Utility for the Right to Health in Reforming Trade Rules on Medicines?

Health and Human Rights: An International Journal, Vol. 10, Vol. 2, p. 37, 2008

16 Pages Posted: 29 May 2009 Last revised: 6 Dec 2014

Lisa Forman

University of Toronto

Date Written: March 4, 2009

Abstract

This paper explores the legal and normative potential of the right to health to mitigate the restrictive impact of trade-related intellectual property rules on access to medicines, as evidenced by the global outcomes of the seminal pharmaceutical company litigation in South Africa in 2001. I argue that the litigation and resulting public furor provoked a paradigm shift in global approaches to AIDS treatment in sub-Saharan Africa. I argue further that this outcome illustrates how human rights in concert with social action were able to effectively challenge dominant claims about the necessity of stringent trade-related intellectual property rights in poor countries, and ergo, to raise the priority of public health needs in related decision-making. I explore the causal role of rights in achieving these outcomes through the analytical lens provided by international legal compliance theories, and in particular, the model of normative emergence proposed by Martha Finnemore and Kathryn Sikkink. I suggest that the AIDS medicines experience offers strategic guidance for realizing the right to health's transformative potential with regard to essential medicines more generally.

Keywords: right to health, trade, intellectual property, access to medicines

Suggested Citation

Forman, Lisa, 'Rights' and Wrongs: What Utility for the Right to Health in Reforming Trade Rules on Medicines? (March 4, 2009). Health and Human Rights: An International Journal, Vol. 10, Vol. 2, p. 37, 2008. Available at SSRN: https://ssrn.com/abstract=1353221

Lisa Forman (Contact Author)

University of Toronto ( email )

Department of Statistical Sciences
Toronto, Ontario M5S 3G8
Canada

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