Background Human rights are best protected, promoted and guaranteed when they can compel binding and enforceability duty. One prominent criticism of category of human rights which includes the human right to health is that it is difficult, to assign the duties that correspond to these rights, because of stark disparity in how the main duty bearers approach their duties. Methods This paper adopts a doctrinal approach to examine and evaluate the duties to the right to health. The method in this study entails a detailed literature search to systematically evaluate the legal implications, regulations, arguments and policy regarding the nature of the obligation to the right to health. This study also engages with normative and philosophical aspects of human rights. Results This paper posits that human rights protect against common, serious, and remediable threats and risks, and ensure that there are remedies from governments and third parties. However, it is difficult to compel duties especially in regard to the right to health. First it is not easy to achieve a uniform standard for duty bearers implied by the words ‘highest attainable physical and mental health.’ Theorists discussed in the paper outline views of what this could mean, from serious to common health concerns. Second, the right to health is not a legally established right in many jurisdictions, making it difficult to enforce. This paper outlines different layers of state and non-state legal duty bearers to enforce the right to health. Conclusion The duty to respect, protect, fulfil and even remedy the right to health, will often be meaningless in practice without a clear identification of the necessary duty bearers to enforce them. The law is the starting point for this to not only enshrine this right as a legally enforceable one but also to clearly identify duty bearers. Without this, the human right to health as outlined under international and regional human rights law generates an implausible, or even impossible, profusion of duties. There remains much work still to be done especially on the moral and legal fronts in order to fully guarantee this right. Trial Registration Not applicable Our work does not report results of a health care intervention on human participants. Registration is therefore not applicable.
The objective of this study is to make a case for Nigerian women to have access essential medicines in light of patent protection of pharmaceuticals. Consequently, this study argues for an improvement of women's access to medicines within the context of patent law and rights, the available flexibilities in the international IP regime of the Trade Related Aspect of Intellectual Property Rights (TRIPS) Agreement and Nigeria's national patent system. Towards this goal, the article makes the point that patent law and its exclusive rights, both the TRIPS Agreement and national law of Nigeria, do not exist in a social welfare vacuum. The legal text of patent law, which confers rights on inventors when enforced, translates to many other things outside the sphere of property rights; indeed, it can be a matter of life and death. It is argued in this regard that patent right could, in effect, interfere with access to medicines and therefore, the right to health and prospects for human development. This study adopts a doctrinal methodology to examine, analyse, and evaluate the issues that have arisen in the context of patent protection of pharmaceuticals and its effect on access medicines. It concludes that while the hindrances to accessibility of essential drugs in Nigeria are multifaceted and demand a multidimensional approach for a lasting solution, the TRIPS flexibilities are significant means for addressing the challenges of affordable access to important health treatments within the context of patent law. However, it is emphasised that utilising the flexibilities will require that Nigeria's patent system is strategically designed to take full advantage of the available exceptions, safeguards, and options.
Human rights are best protected when they enjoy the binding enforceability of the law. Recognizing the binding status of human rights in national constitutions and legal systems is central to demanding accountability, compelling actions and sanctioning violations. Conferring human rights with legal recognition also empowers people and provides the option of pursuing remedies. Furthermore, the duty of the state to protect and respect human rights is triggered when they receive prescription under the law. In Nigeria, however, certain rights pertaining to economic, social and cultural rights do not receive the binding force of constitutional law. This article argues that the judiciary can act as an alternative and complementary recourse to advance and secure the commitment to the right to health. Drawing on a comparative perspective from countries where the judiciary has proactively upheld this right, it maintains that the Nigerian judiciary can take action to enhance the legal and judicial implementation of the right to health.
Indubitably, everyone is entitled to the right to a standard of health. While women's rights to health and life are clearly established in legal instruments, having these laws without the fulfilling them will not serve the people they are meant to safeguard. For this reason, this article argues that the right to health and life includes the right to an effective access to available, good quality, safe and effective medicines that are equally affordable to everyone. Essentially, human rights principles, norms and standards provide strong moral support for the consideration of women's access to medicines, in view of the adverse impact of international and national patent law on public health. It is also submitted that ensuring this access to a choice of essential medicines at an affordable price requires the state to ensure that the granting of patent rights to inventors and pharmaceutical companies does not hinder access to essential drugs. In the same vein, the article argues for the design, interpretation and implementation of patent rights to respond to the right to health, life and access to medicines.
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