Great points Leila, Jesus, Randa, Isra, Maria Elisa, Maria Jose, and Armando. In summarizing your points I would like to highlight the legal provision in the ICESCR Art. 15, which is the provision that speals about the right to intellectual property rights, apart from what Jesus mentioned about UDHR.
According to Art. 15, everyone has the right "To benefit from the protection of the moral and material interests resulting from any scientific, literary or artistic production of which he is the author". So, this is clearly the right given to inventors to benefit from their own inventions.
But, most important, Art. 15 also has another clause. It says it is also the right of everyone "to enjoy the benefits of scientific progress and its applications".
Obviously, therefore, the solution as well as the challenge in our discussion, is to strike the balance between the two. It is quite clear therefore, that patenting rights or IPR rights in general cannot come at the cost of the fundamental and basic human rights such as right to food, health and life.
In fact, the exceptions in TRIPS Agreement were made precisely because there was an agreement amongst States that public health should not be a casualty of the IPR regime. The attempt to figure out some sort of a happy balance is, unfortunately, not easy at all.
I would like to provoke you further for critical reflection. Art. 15 of the ICESCR talks about inventors benefitting from moral and material interests resulting from their inventions. However, it does not lay down the scope of how such benefits must accrue. That is done by the IPR regime that lays down criteria such as exclusion of competitors to produce the patented product for 20 years. One could argue, therefore, that the TRIPS regime is a lex specialis and by breaking the balance required, it is in conflict with human rights regime that requires not only that balance to be maintained, but also requires access to medicines as a human right obligation on States as well. As students of International Law, a very important question in this regards is as follows:
Does human rights law trump IPR law? In other words, if obligations of States under human rights law are breached because of IPR obligations, should the conflicting IPR obligations be superseded by the former?
An important argument in this regard that gives primacy to human rights obligations of States over and above the WTO obligations is Art. 103 of the UN Charter, read in conjunction with Art. 55 and 56 thereof. Thus, many scholars have argued that in case of a conflict between the two, human rights obligations of States must prevail. Of course, as some of you pointed out, under the European system, human rights have been given a hierarchically superior place than commercial agreements.
I am glad this discussion ended up with more voices. Let's make the most of the last week's topic, which again is a very important one.
Cheers,
Mihir