International Intellectual Property, Access to Health Care, and Human Rights: South Africa v. United States

This Article examines the question of access to patented medicines in international law. It analyzes the extent to which international agreements may lawfully limit affordable versions of these medicines that may be available through parallel imports or compulsory licensing procedures. It considers the concept of intellectual property rights from a national and international perspective to determine how these rights must be sensitive to matters of national sovereignty when extraordinary, life-threatening diseases afflict societies in catastrophic ways. This Article suggests that viewing property (including intellectual property) as a human right requires that its scope be delimited and understood in the context of other human rights.

In short, property and human rights should be understood as complementary, rather than antagonistic ideas. This Article also reviews the Agreement on Trade-Related Aspects of Intellectual Property Rights (TRIPS) in light of the contemporary standards of construction and interpretation applicable to agreements of international human rights law.