Philippe Cullet

Patents and Medicines: the Relationship between TRIPS and the Human Right to Health

The question of access to drugs in developing countries is at present largely influenced by the TRIPS Agreement. TRIPS compliance in the field of health requires substantial changes to existing patent laws in some countries. These changes must be analysed in the context of the spread of epidemics like HIV/AIDS and in relation to other international obligations that states have, for instance, with regard to the human right to health. Intellectual property rights treaties today have significant impacts on the realization of some human rights like the right to health. This article examines the extent to which TRIPS encompasses flexibility for developing countries to be able to foster better access to medicines. It also examines these issues from the point of view of human rights and considers, in particular, the ways in which the relationship between human rights and intellectual property can be improved in international law.

Joint implementation and forestry projects: conceptual and operational fallacies

Increased human activity is causing a build-up of greenhouse gases (GHGs) which are thought to contribute to global warming. Climate change is an international environmental concern because the effects of GHG emissions will be felt throughout the world irrespective of their origin.Similarly,mitigation activities undertaken anywhere in the world have the same impact on the global environment. The Framework Convention on Climate Change, opened for signature in June 1992 during the Rio conference, seeks to address the problem of global warming at the international level. It has received widespread acceptance and has been ratified by 171 states.While the convention does not set out specific emission reduction targets,the recently adopted Kyoto Protocol sets out quantified emission limitation and reduction commitments for OECD countries and countries undergoing the process of economic transition to a market economy (Annex B parties).Annex B parties commit themselves to reduce their overall GHG emissions by at least 5 per cent below 1990 levels between 2008 and 2012.1 Developing countries do not take on emission limitation or reduction commitments. In the first part of this article,we analyse the mechanism of joint implementation (JI) generally and in the Climate Change Convention specifically.The second part concentrates on JI projects in the forestry sector.We argue that the carbon sequestration potential of trees on which JI forestry projects are predicated has not been proven.Indeed,in the long term,these projects have a very limited effect on carbon sequestration considering that woody biomass eventually decays or burns.We also argue that JI forestry projects often conflict with local and international environmental priorities.The third part addresses concerns with JI at the international level.It focuses on reordering JI priorities and fitting development concerns in JI.

Human Rights and Intellectual Property Protection in the TRIPS Era

Human rights and intellectual property protection are two distinct fields that have largely evolved separately. Their relationship needs to be re-examined for a number of reasons. First, the impacts of intellectual property rights on the realization of human rights such as the right to health have become much more visible following the adoption of the TRIPS Agreement. Second, the increasing importance of intellectual property rights has led to the need for clarifying the scope of human rights provisions protecting individual contributions to knowledge. Third, a number of new challenges need to be addressed concerning contributions to knowledge, which cannot effectively be protected under existing intellectual property rights regimes. This article examines the different aspects of the relationship between intellectual property rights, human rights, and science and technology related provisions in human rights treaties. It analyzes existing knowledge protection-related provisions in human rights treaties. It also examines some of the impacts of existing intellectual property rights regimes on the realization of human rights. Further, it analyzes the recently adopted General Comment 17 on Article 15(1)(c) of the International Covenant on Economic, Social and Cultural Rights (ICESCR) and proposes an alternative broader reading of this provision focusing on traditional knowledge.

Plant variety protection in Africa: towards compliance with the TRIPS Agreement

Plant variety protection has come to the fore in the wake of the adoption of the Agreement on Trade-Related Aspects of Intellectual Property Rights (TRIPS Agreement). TRIPS generally imposes the patentability of inventions, whether products or processes, in all fields of technology and specifically mandates the introduction of a form of legal protection on plant varieties. Article 27.3(b) thus states that member states “shall provide for the protection of plant varieties either by patents or by an effective sui generis system or by any combination thereof.”

Definition of an Environmental Right in a Human Rights Context

This article examines the theoretical background of a right to environment, its contents and the different ways to achieve implementation of the norm. Environmental protection is first ascertained as a universal concern which warrants consideration within a human rights context. Innovative features of the right such as the emphasis on prevention and on the principle of solidarity deriving from the internationalization of environmental problems are then examined. Further, some implementation mechanisms such as procedural rights developed at the same time in environmental and human rights instruments or the judicial appraisal of environmental protection in the context of enforceable human rights are highlighted.

Intellectual Property Rights and Biodiversity Management: The Case of India

This article analyzes the impacts of the international legal framework for the promotion of intellectual property rights on Indias legal regime concerning the control over biological resources and inventions derived from biological resources. It focuses in particular on the newly adopted Biodiversity Act and Plant Variety Act as well as on amendments to the Patents Act and their organic relationship within the overall domestic legal framework. It analyzes these enactments in the context of the move towards the control of biological resources and derived products through property rights fostered by existing international treaties, in particular the TRIPS agreement and the biodiversity convention. This has impacts not only for control over biological resources and derived products but also more generally on the management of agriculture in India and other developing countries and the realization of food security and the human right to food at the individual level.

Right to water in India – plugging conceptual and practical gaps

This article examines the content of the human right to water. It starts from the premise that the right is firmly anchored in international and national law. It thus moves beyond debates concerning either the existence or the legal status of the right in favour of a more in-depth discussion of its content. It focuses on India, a country where the right is well entrenched at a broad level but where the actual content of the right is not well defined in legal instruments. It considers some of the aspects of the right that are most critical at this juncture from a policy perspective, including the need to ensure that the universality of the right in theory is matched by universal realisation, the need for the core content of the right to be provided by the state and the need to recognise the right as including a free water component if it is to make a difference for the overwhelming majority of poor people.

Property-Rights Regimes over Biological Resources

The increasing economic importance of biological resources and, in particular, knowledge related to these resources, has made the allocation of property rights one of the most contentious issues in the debate concerning biodiversity management at the international level. The author surveys the different property-rights regimes developed to regulate access to and control over biological resources, and the relevant international instruments and institutions. He argues that the overemphasis on private property rights regimes, in particular monopoly intellectual property rights such as patents, has been inimical to the sustainable management of biological resources at local and international levels. He suggests ways to allocate property rights so as to promote forms of biodiversity management that are both socially equitable and environmentally sustainable, and analyses some of the recent developments concerning alternative forms of intellectual-property protection.

Dolphin bycatches in Tuna Fisheries: A smokescreen hiding the real issues?

The taking of dolphins in Tuna Fisheries has attracted a lot of attention in both law and science. The problem assumed international significance in the wake of the two General Agreement on Tariffs and Trade (GATT) panels on imports of tunas. This article addresses the issue of incidental bycatch in fisheries generally and avers that dolphins are but one of the numerous species that are taken incidentally in commercial fisheries. It argues that the bycatch problem should be approached from a broader perspective that takes into account whole ecosystems and diverse interests in fisheries. It then posits possible ways of encouraging more selective fishing techniques that minimize overall bycatches.

The Kyoto Protocol and Vulnerability: Human Rights and Equity Dimensions

Given the broad-based nature of climate change, the focus of law and policy has never been exclusively environmental. Economic and trade issues have, for instance, played a key role from the outset. While environmental and economic considerations have been central to the climate change legal regime, the same cannot be said for its human rights aspects. The existing regime provides a number of entry points for the consideration of human rights. The notion of vulnerability is an effective starting point since it has been an important component of the regime since its inception. This important concept must, however, be given more specific content if it is to be effective in shaping the climate change regime in the future. Vulnerability applies both at the level of states and people. Concerning states, differential treatment already provides the conceptual basis for addressing vulnerability. However, the framework needs to be thought afresh to make it more effective at capturing the varying vulnerabilities of different developing countries as well as to take into account changed circumstances since the adoption of the Climate Change Convention (UNFCCC). Concerning people, the climate change regime needs to move beyond its traditional international environmental law model to encompass consideration of the specific vulnerabilities of individuals and communities. This is best achieved through the language of human rights that has already been widely discussed in environmental law contexts.