the quest for access to medicines and the effects of the trips agreement: an appraisal of the ...

374 Pages·2014·2.32 MB·English

Durham E-Theses
THE QUEST FOR ACCESS TO MEDICINES AND
THE EFFECTS OF THE TRIPS AGREEMENT: AN
APPRAISAL OF THE NIGERIAN SITUATION
BALANCED AGAINST OTHER STATES.
IYORTYER, HEMBADOON
How to cite:
IYORTYER, HEMBADOON (2009) THE QUEST FOR ACCESS TO MEDICINES AND THE
EFFECTS OF THE TRIPS AGREEMENT: AN APPRAISAL OF THE NIGERIAN SITUATION
BALANCED AGAINST OTHER STATES., Durham theses, Durham University. Available at Durham
E-Theses Online: http://etheses.dur.ac.uk/282/
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THE QUEST FOR ACCESS TO MEDICINES AND
THE EFFECTS OF THE TRIPS AGREEMENT: AN
APPRAISAL OF THE NIGERIAN SITUATION
BALANCED AGAINST OTHER STATES.

HEMBADOON IYORTYER

A THESIS SUBMITTED IN FULFILMENT OF THE REQUIREMENTS OF
THE UNIVERSITY OF DURHAM FOR THE DEGREE OF DOCTOR OF
PHILOSOPHY IN LAW

DEPARTMENT OF LAW
FEBRUARY 2009

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ABSTRACT
The objective of this thesis is to find solutions to the access to medicine
problem in Nigeria whilst still complying with the TRIPS Agreement. The
study reveals that apart from the high prices of medicines, there are other
major domestic factors such as the lack of social amenities, the failure of the
pharmaceutical industry to become self reliant, counterfeit drugs and lack of
recognition for traditional medicines which have contributed to the lack of
medicines for HIV/AIDS and other opportunistic diseases that are a major
public health problem in Nigeria.

In fulfilling the objective of this study, the thesis notes that many Nigerian
laws are based on the British legal system; a historical analysis of the patent
system in Britain and indeed Europe is therefore carried out. The historical
analysis is relevant in recognizing how the patent concept developed and
evolved into becoming one of the most powerful components of the multi-
lateral trading system and why developing countries like Nigeria have
struggled with the concept.

The HIV/AIDS epidemic in Nigeria, neglected diseases and counterfeit drugs
are also examined with key emphasis on the Nigerian governments’ position
on tackling the access to medicines problem. In that section an examination of
the human rights approach to confronting the access to medicines crisis is
conducted with a view of encouraging the respect and protection of
fundamental human rights whilst still complying with the TRIPS Agreement.

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Ultimately a comparative analysis of the Nigerian and Indian pharmaceutical
industry is carried out in order to extract lessons which may be useful to the
Nigerian government when initiating public health policies and amending its
intellectual property laws which are presently out-of-date. In the end the thesis
stipulates ways in which Nigeria can take advantage of the flexibilities of
compulsory licenses and parallel importation within the TRIPS Agreement to
gain access to medicines.

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To my father and mother Zegetar and Torkwase Iyortyer

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ACKNOWLEDGEMENTS
I once read a PhD candidate’s acknowledgement who said it is customary to
begin such acknowledgements with a bout of name dropping, so I choose to
begin mine with Friedrich Nietzsche quote “what does not destroy me makes
me stronger”.

My thanks and gratitude goes to my supervisors Professor Deryk Berylevd and
Dr Antonis Antoniadis for their invaluable help and support. To my first
supervisor Professor Ronan Deazley, for giving me the opportunity to
investigate and discover the plight of people in my own country who do have a
voice because they live on the edges of oblivion. To Dr Mike Adcook for his
advice. To Colin Baxter, who taught me at the University of Hull that your
research must always have a focus. To Diana Webb, my history teacher and all
the staff at St’Mary’s School who taught me what kindness is when I arrived in
Wantage, Oxfordshire from an entirely different culture.

To Uwanaka the Principal of Federal Government Girls College, Bwari - who
would have ever thought that one day I would be grateful for all the long hard
years of hardship and discipline, without which I probably would have gone
through life never truly knowing what it is like on the other side of the fence.
To Professor Charles Wambebe who provided me with invaluable data and
advice on how to tackle the access to medicines debate. To Mr Salihu Aliyu at
the Ministry of Justice in Nigeria who welcomed me when I first went to
Nigeria looking for data and information on this thesis. To Professor I. A
Ayua, Senior Advocate of Nigeria (SAN) who has shown considerable interest
in my work and progress.

Thank you to my parents, Zegetar and Torkwase for their massive hearts.
These two great figures have not only given me the gift of life, but have taught
me how to think and believe in whatever is good, excellent and inspirational.
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Whenever I found my strength lacking in the pursuit to deliver, they kept
pushing and encouraging. As a matter of fact Zegetar has become an expert on
the field, because we both combined forces in making this happen. For me,
everything that I am and will ever be first began with the unconditional love
and support they have showed me. Their love has never wavered and has never
wandered. I love you.

To my sisters Iwasen, Avershima and Iveren, you girls have filled my life with
beautiful memories and lovely stories and I will always have fun memories
when I think of all the wonderful and sometimes crazy times we shared. I wish
you girls all the best. To my brother Bem, may God be your compass. To all
my friends who have given me encouragement and support during this journey.

To Peter, I know you are in a better place and you are smiling down on us. We
love you and miss you. To Kamto, thank you for coming into our lives. You
make the world beautiful and all I have to do is look at your wonderful smile
and I know that everything is possible. I love you pumpkin, keep shining. To
Jeffrey Chidi, the man of my dreams, my partner, my husband and the love of
my life, you are my mirror and have touched my life in so many ways. You
have made many of my dreams and aspirations a reality. I only wish we had
begun this wonderful journey earlier, so here is a toast to our favourite word
“connection” and another to a joyful and blessed forever with you.

Most earnestly thank you God for making everything possible in my life

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CONTENTS
ABSTRACT 2
LIST OF CONTENTS 7
LIST OF ACRONYMS 12
LISTS OF DIAGRAMS, CHARTS AND TABLES 18
ACKNOWLDGEMENT
DECLARATION 19

1 INTRODUCTION
1.1 The Problem 20
1.2 Statement of purpose 24
1.3 Scope of Study 27
1.4 Summary 29

PART I
2 THE TRIPS AGREEMENT AND ACCESS TO ESSENTIAL
MEDICINES IN DEVELOPING COUNTRIES: AN OVERVIEW

2.1 Introduction 30
2.2 Cost of R&D 33
2.3 The TRIPS Agreement 35
2.4 Intellectual Property Rights before the WTO 38
2.4.1 The Negotiation Process (1986-1994) From Punta Del
Este to Marrakech 39
2.4.2 Resistance from Developing Countries 41
2.5 The Question 41
2.5.1 World Intellectual Property Organisation 44
2.5.2 Problems with WIPO 45
2.6 Summary 49

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3 THE JURISPRUDENCE OF INTELLECTUAL PROPERTY
RIGHTS – A VALUABLE BACKDROP TO PATENTS
3.1 Introduction 50
3.2 History of the emergence of International Industrial
Property 52
3.3 What does the phrase Intellectual property rights means?
54
3.4 Patents 61
3.4.1 The Venetian influence on Patents 62
3.4.2 Patents spread to other parts of Europe 66
3.4.2.1 France 66
3.4.2.2 Germany 69
3.5 The Birth and Growth of the Early patent Doctrine in
Britain. 73
3.6 The Birth of the Modern Patent Doctrine 85
3.7 Monopoly 88
3.8 Justifications for Intellectual Property Rights – Patents 93
3.8.1 Natural rights Theory 94
3.8.2 The “incentive to invent” Theory 98
3.8.3 To promote Investments 101
3.9 Summary 104

PART II
4 HUMAN RIGHTS
4.1 Introduction 105
4.2 The Development of the Right to Health in International Law 111
4.2.1 UNDR 112
4.2.2 ICESCR 116
4.3 Human Right Obligation of Multinational Corporations 125
4.4 Summary 128
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