The Promotion of Better Accessibility & Governance in Healthcare Through Private Law and International Trade

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(1) PAPER OVERVIEW: THE PROMOTION OF BETTER ACCESSIBILITY & GOVERNANCE IN HEALTHCARE THROUGH PRIVATE LAW AND INTERNATIONAL TRADE

In the agenda of advancing the struggle for efficient healthcare systems, this paper suggests the use of international trade through public law as a necessity in ensuring better access and governance of healthcare to societies in developing countries. It further promotes the harmonisation of private law as the primary factor to lowering barriers for governments to participate in medical trade activities — accrediting the possibility of reducing uncertainty and transaction costs between countries, and to address limited PTA partnerships and other deficiencies in trade through a global integration of private-law harmonisation. This study will seek to illustrate the concepts of international trade and private law in influencing global health and local governance, and consequently, highlights the systemic struggle of the Global South in achieving better accessibility and governance tools through trade participation and activities. As such, it is with the intention of the writer that the inclusion of private law in trade and international law is explored for better healthcare systems in developing countries.

(2) A STUDY ON THE GLOBAL SOUTH & THEIR EQUITY OF ACCESS TO HEALTHCARE

The access of healthcare in the Global South represents a paradox of both scientific progress, and a lack of social solidarity in wealth, power and prestige. The industry is dominated by multinational corporations who maintain control over the manufacturing and distribution of medical supplies and the drug market, which generally consists of patented and generic products for both public and private purchasers. The guarantee of equity in supplying global demands is regulated by a complex regime of national and international agencies that adopt informal processes of legal harmonisation. In his article on Law, Politics, and Access to Essential Medicines in Developing Countries, author Heinz Klug explores the role of economic availability and convenience in obtaining essential drugs and supplies as the primary factor in shaping a country’s capacity to tackle medically-related catastrophes. He further clarifies the debate of access to healthcare as an overview of globalised production, consumption and governing systems.

In developing countries (primarily located in the Global South regions of the world), the ability of governments in combating pandemic and national health risks remain crippled due to their poor footing on intellectual property rights in the global economy. Within the study of AIDS and continued deaths of over 20 million worldwide, the question of cure and treatment was no longer fixated on the limitations in medical science, but rather on the issues of social and political deformities — highlighting the relationship between the domestic demand of justice in healthcare equity, and the property rights claimed internationally. The criticism against unethical, profit-driven medical regimes are on the basis of their role in disabling countries to respond effectively to health crises due to the unavailability or non-affordability of essential drugs. The issue is emphasised greater through advances in modern medicine: understanding of diseases and biology, and chemistrial revolutions in drug-research and production.

In analysing the outbreak of HIV/AIDS, the debate over limited access to medication and treatment was directed to South Africa when their pharmaceutical industry lost all capacity in the production of their Anti-Retroviral Medicines (ARV) due to the patent law targeted against them through state-sponsored corporate agendas: led by the United States government and multinational pharmaceutical corporations. This was relaxed later on after the exhausting process of voluntary licences, international aid funding, and a reprieve of political and trade pressure.

(3) INTERNATIONAL HARMONISATION OF LAW IN TRADE & MEDICAL GOVERNANCE

While the primary motivation in legal harmonisation has always explored the facilitation of cross-border transactions as a way to reduce uncertainty and transaction costs associated to the purchase; the main deterrence in implementation is the lack of familiarity and legal uniformity which, both, contribute to misunderstanding and disagreements that could ultimately discourage the use of private law within international trade. The role of legal harmonisation, however, is pursued through legal rules that are consistently applied during a transnational commercial dispute. The involvement of both regional and international organisations in the harmonisation of commercial law was further acknowledged by the United Nations Commission on International Trade Law (UNCITRAL) during its 1996 establishment as a UN General Assembly commission, in the collective effort to unify and apply private law within international legal regimes.

A need to achieve consensus of the regulation and legislation of healthcare supplies and devices was promoted by the Global Harmonisation Initiative (GHI) with the aim to minimise barriers and encourage trade between different countries. In collaboration with the World Health Organisation (WHO) and the Global Harmonisation Task Force (GHTF), the GHI oversees the facilitation of access for developing countries to medical assistance, supplies and markets. In other areas, it also standardised the requirements and procedures of a workable framework reflecting international healthcare progressions that prioritised quality and safety.

In the example of a study on the African continent, Margareth Ndomondo-Sigonda, among others, highlighted in the research piece, Harmonisation Of Medical Products Regulation: A Key Factor For Improving Regulatory Capacity In The East African Community, the regulatory harmonisation initiative of national medicines taken up by the East African Community (EAC) analysed the group’s focus on registration and inspection systems contributing to the region’s access to quality healthcare. It was cited that the continent constituting 15% of the world’s population has a disproportionate percentage of 25 in preventable and curable disease burden linked directly to inadequate health systems, financial insecurity and the limitations of medication and medical supplies.

(4) LEGAL REGIMES & INTELLECTUAL PROPERTY IN GLOBAL HEALTH SYSTEMS

As it is commonly understood that the subject of international trade law make up topics on intellectual property and pharmaceutical patents, the Trade Related Intellectual Property Rights (TRIPS) regime signed in 1994 at Marrakesh, Morocco had acknowledged the issue of patent protection as one of national sovereignty, authorised by domestic law. This, in additional contrast to the 1970 adoption of the Patent Cooperation Treaty by the World Intellectual Property Organisation (WIPO), observed the commercial losses of the pharmaceutical industry, which eventually gave leeway for multinational corporations to monopolise the industry under one market umbrella. The full integration of intellectual property, while popularised by the United States, was instead initiated by the 1990 Canadian Proposal.

As a result of this, the U.S. agenda to redefine the international norm of pharmaceutical standards in accordance with American intellectual property globally, primarily in developing countries, was facilitated through the joint-forces of American pharmaceutical corporations and other intellectual property intensive industries. According to Philip Ellsworth, a corporate leader and ex-chairman of the International Organisations and Issues Committee of the Pharmaceutical Manufacturers Association in the United States, the objective to take hold of three different avenues in securing greater patent protection was illustrated through the U.S.’ response (1) multilaterally to international organisations like WIPO and the General Agreement on Tariffs and Trade (GATT); (2) bilaterally through state pressure on the government’s trading partners in improving intellectual property protection within existing domestic laws; and (3) unilaterally in its approaches abroad through sanctions. The strategy to implement a national, bilateral and multilateral response contributed to the rise of American medical hegemony. This, in continued response to global health disasters, motivates the plight of governments and activists on the campaign to re-discuss patent protection and access to medications in developing countries.

(5) CONCLUDING CHAPTER: FACILITATING INTERNATIONAL TRADE TO SECURE SUPPLY & ACCESS OF HEALTHCARE SERVICES IN DEVELOPING COUNTRIES

In a world where pandemics and plagues are running abundant, the global elite and national superpowers take charge in monopolising vaccines, medication and other healthcare services in an attempt to maximise profit, surely, over people. The recent COVID-19 pandemic has revealed the gaping wounds of the international healthcare industry, and has centralised the threat of big pharma and the growing medical industrial complex. With inefficient and extraordinarily expensive regulations put in place to manage and distribute life-saving solutions to the rest of the world, especially to the Global South, the promotion of better accessibility & governance in healthcare could only be achieved through the integration of private law to accommodate international trade.

The systems in place to accommodate global trade has always been criticised as being biassed towards Global Northern states, which ultimately discourages much smaller and vulnerable countries to participate in altogether. The impacts of the hyper-capitalist agenda in privatising healthcare has trickled down to the poor and less experienced countries. On top of the monopolisation of pharmaceuticals, the expectation for the developing and least-developed countries to contain and solve medical crises within their territory is beyond their capacity.

It is primarily the reason why this paper is centred towards the idea of implementing international laws and systems domestically, so different parties taking on medical disasters have the tools and resources to neutralise the event of mass deaths and contamination. By integrating international regulations and customs locally, governments and service sectors, primarily healthcare, are much more comfortable and familiar with the implementation plan of recovery.

This paper calls for a broader examination into the study of international trade laws, domestic legal systems in developing countries and the healthcare industry.

(6) BIBLIOGRAPHY

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