Abstract
LL.M. (Human Rights)
The right to health is a universally accepted right and is protected in international
legal instruments. This study examines health as a human right and the interrelationship
between political and civil rights, and the right to health. Whilst the State
is primarily responsible for the promotion and protection of health, the role of non-
State actors is explored. Emphasis is placed on the role of multinational corporations
in the protection of human rights. A key component of the right to health is access to
medicines. The role of multinational pharmaceutical corporations is examined in an
attempt to determine if these entities have any obligations to the promotion and
protection of the right to health. This study has concluded that pharmaceutical
corporations do have human rights obligations, but often fail to fulfil these. A key
element of this failure is the excessive pricing of drugs. Pricing is protected by patent
rights, enforced by the World Trade Organization’s Trade-Related Aspects of
Intellectual Property Rights (TRIPS) Agreement. Failure by member States to abide
by the TRIPS Agreement could result in sanctions against the defaulting State. This
study examines the position of access to drugs in India and Brazil, and concludes that
prior to compliance with the requirements of TRIPS, both these countries were able to
develop generic drugs by awarding compulsory licences to manufacturers. This
resulted in the substantial lowering of drug prices. With Brazil and India now having
to comply with the requirements of the TRIPS Agreement, drug prices are beginning
to escalate, resulting in reduced accessibility. Citizens and civil society groups in both
countries are using the courts to enforce their rights. Similarly, in South Africa, access
to essential drugs is restricted because of excessive pricing. Active citizens and civil
society bodies have challenged the South African government. It is hoped that South
Africa will develop intellectual property laws that will limit pharmaceutical patents,
particularly the process of ‘evergreening’, which is an attempt to patent a slight
variation of an existing product whose patent is about to expire. The study concludes
with a recommendation to the South African government to exercise the flexibilities
granted in the TRIPS Agreement by issuing compulsory licensing and engaging in
parallel imports. Domestic legislation must be used to interpret the TRIPS Agreement
without restricting the right to health.