The conflict between patent protection and access to affordable medicines is one of the most highly charged controversies in international political economy. This controversy first attracted intense attention when the United States sued South Africa over South Africa's revised Medicines Act in late 1997. The Act incorporated reforms that would facilitate South Africa's access to lifesaving antiretroviral drugs to combat its devastating HIV/AIDS pandemic. The US–South African conflict made headlines around the world and many scholars, activists, and observers harshly criticized trade laws that would place patent holders' quest for profit above human lives. Hestermeyer's book adds to the rapidly growing literature on this important problem.
Hestermeyer offers the perspective of a scholar of international law and carefully traces the development of the sharp political controversies that tensions between access to essential medicines and patent protection have engendered. He seeks to provide a comprehensive introduction to the controversies for non-specialists and underscore the links between public international law, trade law, international human rights law, patent law, and food and drug law. Ultimately, he succeeds in tying all these threads together. He concludes that issues of access to medicines belong under the rubric of human rights law. He also makes a normative argument, claiming that human rights should trump other rights.
Hestermeyer's scholarship is careful and detailed. He builds his case systematically and logically by first offering background to the debate for the general reader, and then providing a general discussion about patents and the Agreement on Trade-Related Aspects of Intellectual Property Rights (TRIPS). He goes on to discuss access to medicines as a human right, and the ways in which patents can jeopardize access to medicine. He concludes that access to medicine should be treated as a human right in the WTO.
He displays a fine command of the clauses of human rights law that bear upon these crucial issues. He slices through some prevalent arguments and clarifies disputes; for example he points out that the notion of ‘a right to health’ is absurd since ‘nature and human frailty take their toll’ (p. 91). Instead, what actually is at stake is the right to health care. Yet, Hestermeyer points out that ‘the immediate full realization of a right to health care or of the right to food and other such rights is impossible’ (p. 91). Thus, he concludes that the International Covenant on Economic Social and Cultural Rights ‘is not utopian’ as it urges states to move progressively toward provision of these rights as resources allow.
The author points out the contradictory dynamic by which the natural law rationale of patent law is almost universally rejected at the national level, yet has been resuscitated at the multilateral level (p. 38). He raises the possibility that many developing countries lack the expertise and market power to challenge developed country interpretations of intellectual property agreements (p. 48, n. 205). Hestermeyer rightfully points out that for major pharmaceutical firms, obtaining patents in countries lacking pharmaceutical manufacturing capacity is unnecessary (pp. 72–73).
Hestermeyer usefully contrasts the utilitarian notions of property rights with the natural law justifications that now animate the debates over so-called traditional knowledge. Here it becomes clear how easily human rights discourse can be hijacked with regard to intellectual property law. According to the author, some allege that ‘intellectual property law itself is protected by human rights norms’; nonetheless, the author makes clear that human rights conceptions of authors' rights and intellectual property rights perspectives are hardly one and the same (p. 85). He argues that pharmaceutical patents in developing countries unjustifiably interfere with access to medicine and examines patent rights through the ‘glasses of a human rights scholar’ (p. 137). He alludes to the role of taxpayers, and public sector funding, behind many privately owned blockbuster drugs and highlights that patents are ‘utilitarian tools to advance a policy, not human rights instruments’ (p. 157).
Hestermeyer sharply draws the conflict between two bodies of law as follows: TRIPS requires pharmaceutical product patents in developing countries, but granting such patents violates human rights obligations (p. 169). Highlighting a number of areas of conflict between WTO and the human rights regime, he presents five possibilities for resolving such conflicts and using non-WTO law in WTO dispute settlement (pp. 209–10). First would be to treat WTO as ‘self-contained’, hermetically sealed off from other branches of international law. Second would be to import non-WTO law into WTO in a very limited way, for example to clarify the meaning of a WTO provision. Third, non-WTO law could be considered to be applicable, and adjudicating bodies would be free to apply it, but only in ways that would not diminish the rights and obligations of the WTO agreements. Fourth, following Joost Pauwelyn (Reference Pauwelyn2001), would be to apply the entire corpus of international law to WTO dispute settlements. This would introduce non-WTO laws into WTO in a much broader and deeper way. If a panel found that these laws conflicted with WTO law, they could rule that a Member violating a WTO rule, but abiding by a conflicting non-WTO law, the panel could refrain from ruling against the Member. Finally, he raises the proposal that the WTO could be used to enforce non-WTO law, to introduce enforcement in areas of law lacking the enforcement and sanctioning mechanisms of the WTO dispute settlement process. Hestermeyer argues that the most politically feasible approach would be to introduce non-WTO law through WTO jurisprudence. He notes that Europe successfully imported human rights considerations into EU law via the judiciary (p. 288). He insists that human rights law be given a larger role in the WTO, and that it will be up to the WTO Appellate Body judges to make this happen (p. 292).
I respect Hestermeyer's command of international law, yet as a political scientist I am more skeptical about the likelihood that negotiators can build a consensus around human rights. At the end of the day, I am not persuaded that the power of a human rights discourse and its support in a variety of treaties in international organizations could ever trump the power and interests animating these negotiations. While human rights law is a well-established body of law, and human rights discourse is widely intelligible and accessible, I remain skeptical of their capacity to override more pervasive interests such as wealth and power. No matter how sensible or compelling this argument is in the abstract, the US government identifies too much with the owners of pharmaceutical patents (‘intellectual property’) and its competitive exporters to cut them off at the knees for ‘human rights’. One need only recall the President James Earl Carter administration to remember how porous and arbitrary a human rights rubric for foreign policy making can be; there is no reason to think that this version would be either any more compelling or different. Strong powers favor regimes that help their broad goals, and can look away when such allies do not meet US human right standards (although the proverbial bar has gotten very low under the George W. Bush administration). The continuing US support for Pakistan, and recognition of China and support for the Olympics in Beijing (despite violent upheavals and suppression in Tibet) illustrate this dynamic.
In conclusion, Hestermeyer has written a very good book for legal scholars and for those seeking to master the intricacies of this important area of international law and organization. International human rights and international trade lawyers and scholars will find this volume useful. It is based upon extensive research.
