Intellectual Property Rights and Public Health: A Critical Examination of the AfCFTA Framework
DOI:
https://doi.org/10.52609/jmlph.v6i1.248Keywords:
Africa, Health Services Accessibility, Intellectual Property, Patents as Topic, Public HealthAbstract
Background: The African Continental Free Trade Area Intellectual Property Rights Protocol (AfCFTA IP Protocol) incorporates several public health-related provisions designed to enhance health across the free trade area. This paper evaluates these provisions and assesses their potential to advance health outcomes within the region.
Methods: The paper employs a black letter methodology, analyzing the substance of the provisions within the AfCFTA IP Protocol. Additionally, it makes comparative assessments with similar treaties to highlight strengths and weaknesses in the context of public health.
Results: While the Protocol includes important provisions on public health, it lacks substantive obligations and effective enforcement mechanisms. Furthermore, the Protocol does not address significant recent developments in the international regime that could have been utilized to strengthen public health initiatives across the region.
Conclusions: This paper shows that the AfCFTA IP Protocol upholds existing international regulations concerning IP and public health, while lacking proactive substantive elements. While this allows AfCFTA members to use IP for health-related issues, the absence of detailed provisions limits the potential to effectively address public health challenges across the continent. This shortfall represents a missed opportunity to leverage IP for improved health outcomes in the region.
References
Table of Legislation
- African Union, Agreement Establishing the African Continental Free Trade Area (AfCFTA Agreement), 30 May 2019.
- African Union, Protocol to the Agreement Establishing the African Continental Free Trade Area on Intellectual Property Rights (Draft), 19 February 2023.
- African Union, Protocol to the Agreement Establishing the African Continental Free Trade Area on Trade in Services, 30 May 2019.
- World Trade Organization, Agreement on Trade-Related Aspects of Intellectual Property Rights, 15 April 1994.
- World Trade Organization, Declaration on the TRIPS Agreement and Public Health, WT/MIN(01)/DEC/2, 20 November 2001.
Table of Books
- Carlos Correa & Reto Hilty, Access to Medicines and Vaccines: Implementing Flexibilities under International Intellectual Property Law, (Springer, Cham 2022).
- Christopher May & Susan K Sell, Intellectual Property Rights: A Critical History, (Lynne Rienner, Boulder 2005).
- Tolulope Anthony Adekola, Regional Cooperation, Intellectual Property Law and Access to Medicines: A Holistic Approach for Least Developed Countries (Routledge, Abingdon 2024).
Table of Journals
- Anna S.Y Wong, Clarke B. Cole & Jillian C. Kohler, ‘TRIPS Flexibilities and Access to Medicines: An Evaluation of Barriers to Employing Compulsory Licenses for Patented Pharmaceuticals at the WTO’ (2022) 168 South Centre Research Paper 28, 2022.
- Caroline Ncube, ‘Intellectual Property and the African Continental Free Trade Area: Lessons and Recommendations for the IP Protocol’ (2022) 21(2) Journal of International Trade Law and Policy 105, 2022.
- Duncan Matthews, ‘WTO Decision on Implementation of Paragraph 6 of the Doha Declaration on the TRIPS Agreement and Public Health: A Solution to the Access to Essential Medicines Problem’ 7(1) Journal of International Economic Law 73, 2004.
- Martin Khor, ‘Patents, Compulsory Licenses and Access to Medicines: Some Recent Experiences’ Intellectual Property Rights Series 11, 2009.
- Mike Gumbel, ‘Is Article 31bis Enough? The Need to Promote Economies of Scale in the International Compulsory Licensing System’ 22(1) Temple International and Comparative Law Journal 161, 2008.
- Nicholas Vincent, ‘TRIP-ING Up: The Failure of TRIPS Article 31bis’ 24(1) Gonzaga Journal of International Law 3, 2020.
Table of Other Materials Cited
- African Union, Assembly of the Union, Thirty-Sixth Ordinary Session, Assembly/AU/Dec. 839-865(XXXVI), 18-19 February 2023, Addis Ababa, Ethiopia.
- Alison Buckholtz, ‘Inside Africa’s Push to Make its Own Medicines’ (World Bank, June 2021) https://www.ifc.org/en/stories/2021/africa-pharma-manufacturing-hubs-en accessed on 10 August 2025.
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Copyright (c) 2025 Chimdessa Tsega
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