Analysis

There is a growing tendency among States to defy, terminate and/or replace their international investment agreements with domestic laws as a reclamation of national sovereignty vis-à-vis international institutions. Thus, international investment law and its reform needs to be informed by research into domestic systems of governance in order to conceptualize better how regional and international law principles are implemented alongside and through the use of domestic legal instruments, but also in order to reform policies within the international investment law or national law context

We hope the papers in this symposium will contribute to the ongoing efforts worldwide to achieve epistemological and methodological diversity in the IEL discipline. As a new Forum, we aim to remain flexible, experimental and responsive to the changing landscape in IEL. We will like to take this opportunity to thank the academics who have supported the Academic Forum over the last two years. We hope we can continue to count on your support as we devise robust and practical ways to decolonise and pluralise IEL research, scholarship and practice as a counterpoint to the dominant Western-centric IEL imagination.

This note discussed how the protection of foreign investors work with the recent investment claim by Zhongshan against Nigeria as an example. It highlighted that investment treaties and investor-State arbitration protect the interests of foreign investors and provide them the mechanism to enforce their acquired rights at the international level. More importantly, the piece argues that the investment award provides an opportunity for lessons for Nigeria, especially on the need for those that act under the mandate of the State, at any level, to be aware of Nigeria’s international obligations, including towards foreign investors and the far-reaching implications of their actions.

Equitable access to medicines and vaccines are key determinants of a country’s resilience to emerging health threats. As the world tries to figure out how to live alongside the SARS-CoV2 virus with the constant threats of emerging variants and new waves, several challenges remain globally for the supply of and access to medicines. For example, the AIDS drugs access crisis, which highlighted the challenges in accessing lifesaving medicines and vaccines. People all over the world are affected by the crisis which is a result of either unavailability or unaffordability.

In his illuminating book ‘Patents, human rights, and access to medicines’, Emmanuel Oke provides a lucid exposition of the intersection between patent law and the human right to health, through an exploration of judicial engagement with this intersection by courts in three developing countries: India, Kenya and South Africa. The book represents a thorough and comprehensive evaluation of a vitally important subject that has not received the kind of sustained scholarly attention that Oke bestows on it. In this post, I shall review chapter 6 of the book, titled ‘India as a case study’.

Oke’s book Patents, Human Rights and Access to Medicines, is a timely and valuable contribution to the literature in this area. Its timeliness is due to the global context of the COVID-19 pandemic since 2019. The discussion of the import of patents to access to medicines, from a human rights lens is a critical endeavour which has been undertaken by several scholars. The seminal Intellectual Property, Human Rights and Access to Medicines-A Selected and Annotated Bibliography, now in its 3rd edition (Velásquez, Correa and Ido, 2020) curates the majority of this literature.

The book discusses the manner in which patent rights adversely affect access to medicines by developing countries and proposes ways to mitigate this. From the author’s point of view, the current international patent rights system as embodied in the World Trade Organization’s (WTO) Agreement on Trade Related Aspects of Intellectual Property Rights (TRIPS Agreement) is too concerned with protecting the interests of innovators at the expense of all other users. In this way, the TRIPS Agreement, by introducing mandatory minimum and stronger standards for the protection of patent rights, has provided an incentive for pharmaceutical companies to charge inflated prices while concentrating their investments mainly towards diseases that affect developed countries. Further, the TRIPS Agreement has diminished the policy space available for developing countries to design patent regimes that are suitable for their developmental and technological needs and circumstances.

The book is a must-read for policymakers, governments, regional communities, students, researchers, health practitioners and anyone that may be interested in 'the access to medicine for all' campaign. The depth of analysis and critical thinking renders the author's arguments very persuasive and practical. It will stimulate the readers to view patent law and policy as a ‘work in progress’ rather than being ‘cast in stone’ and get them thinking about how it can be further improved. The book is highly recommended.

I credit this book with providing an extremely thorough analysis of the relationship between pharmaceutical patents and human rights and moving us forward to an understanding that will undoubtedly improve access to medicines if applied. It will no doubt prove invaluable to policy makers, judges, legislators, activists, governments, students, and the general public.

In the book, I critically examine the nature of the relationship between patent rights and the right to health under international law. I equally critically evaluate how tribunals and courts in Kenya, South Africa, and India address the tension between patent rights and the right to health. Crucially, the book highlights the strategic role that national courts can play in facilitating access to affordable medicines.