Interpretation of TRIPS provisions in a manner consistent with human rights instruments: a policy option for the exploration of South-South judicial cooperation

ABSTRACT The rigid interface between the enforcement provisions of patents under TRIPS standards and the institutional, technical and human resource capacity deficiencies means that political decisions to exploit the TRIPS flexibilities to promote access to medicines in the context of Africa is almost an exercise in futility. Notably, the Development Agenda under the auspices of WIPO often follows the North-South model, and the failings are well documented in the empirical literature, as this has brought little institutional change. For instance, the judiciary that could help to provide an interpretation of the TRIPS flexibilities to promote public health simply lacks capacity. At the same time, the Indian judiciary, through the lens of human rights norms, is widely known for its functional activism in the interpretation of the TRIPS provisions consistent with public health protection, and is the best example for African countries. It is on this basis that this paper attempts a critical exploration of judicial cooperation based on a South-South model with a view to underlining its doctrinal significance for African countries. Therefore, the author questions the rationality of African countries’ exclusive reliance on so-called North-South capacity building and argues that the South-South judicial cooperation model would provide a logical platform that could operate alongside the conventional North-South system for building institutional, technical, and human resource-based aspects of capacity for its judiciary to interpret TRIPS in a manner consistent with human rights norms to promote access to medicines.