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Third World Resistance to International Economic and Structural Constraints: Assessing the Utility of the Right to Health in the Context of the TRIPS Agreement

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image of International Community Law Review

This article examines the relationship between WTO's TRIPS Agreement, patents and access to affordable medicines in Sub-Saharan Africa. The key role played by transnational corporations (TNCs) in ensuring that intellectual property rights were included in multilateral trade negotiations, and how this influence and power of TNCs has impacted on access to affordable medicine in the region is highlighted. The way in which social movements at both domestic and international levels have sought to use the right to health to resist the power of pharmaceutical TNCs bent on blocking the use by Third World countries of the exceptions or flexibilities in TRIPS, such as parallel importation of medicines and compulsory licensing is analysed. In this connection, the way in which the Treatment Action Campaign (TAC, a social movement in South Africa), used the right to health to oppose a suit filed in South Africa by pharmaceutical TNCs seeking to block legislation enacted for the purpose of enabling parallel importation of medicines, is shown. The article also explains how a network of international organisations and activists in collaboration with Third World countries pushed for the adoption of the Doha Declaration on the TRIPS Agreement and Public Health on the basis that access to affordable medicines is a critical element of the right to health. The article argues that the right to health has some limited potential of being used as a means of resistance against international economic forces inimical to the health of Third World peoples. To realise such potential however, one must go beyond using the right to health purely as a legal process or mechanism and instead harness the right as a tool to mobilize and exercise agency of Third World peoples in contesting the power of those forces.

Affiliations: 1: Doctoral Candidate, University of Melbourne Law School, Australia


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