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  October 14, 2002

Cann Seeks to Reconcile Conflicting
Rights in Context of AIDS Epidemic
By Claudia G. Chamberlain

For the past decade, Wesley A. Cann Jr., a professor of business law in the School of Business, has been exploring the complex arena of international law, hoping to advance new arguments regarding the relationship between law, economics, and social concerns.

His legal savvy is now focused on a fundamental human rights issue - the interplay between the duty of nations to provide the highest attainable standard of health to their citizens and the duty of other nations not to interfere with those obligations. At the heart of his argument is a concern that nations recognize their legal duties to address health care issues.

Image: Wes Cann
Wes Cann, professor of business law, is researching the relationship between the human right to health care and the intellectual property rights of pharmaceutical companies.

Photo by Shannon McAvoy

"It's one thing to say a person has a human right to health care," says Cann. "But it's quite another thing to create a legal duty to promote and fulfill that right."

Legal Mechanisms
Cann, who holds a law degree from UConn and practiced law before taking up an academic career here 25 years ago, is developing a theory he terms "progressive global constitutionalism" and applying it to the HIV/AIDS epidemic.

The theory draws from a variety of other theories, such as philosopher Immanuel Kant's progression toward a federation of states; the "constitutive process" of the New Haven School; scholar Christian Tomuschat's legal framework of "common values"; and scholar Alec Stone's "regime continuum."

According to a report by UNAIDS, a United Nations organization, more than 60 million adults and children, the majority of them from poor nations, have been infected with the HIV/AIDS virus and more than 20 million have died since the disease first surfaced some two decades ago. An estimated 68 million people are expected to die prematurely between 2000 and 2020 in the most affected countries. There are 28.5 million people living with HIV/AIDS in sub-Saharan Africa alone, yet fewer than 30,000 are estimated to be benefiting from anti-retroviral drugs, says the report.

Cann's research focuses on the relationship between the intellectual property rights of those who develop anti-retroviral drugs and the needs of less-developed countries for access to the drugs. He is trying to develop legal mechanisms that would reconcile the two.

Cann's legal research is based upon existing interlocking contractual relationships between nations, the development of binding international customary law, and the existence of domestic duties between a sovereign nation and its citizens.

"Many countries have become parties to the International Covenant on Economic, Social and Cultural Rights, for example, which came into force in January 1976. One of the rights contained in that Covenant is the right to the highest attainable standard of health," notes Cann. "Under the doctrine of progressive realization, a concept found in the Covenant, countries have the duty to do all they can - within their available resources - to fulfill this right.

"One action all these nations must take is to exercise the flexibility contained in the World Trade Organization's Agreement on Trade Related Aspects of Intellectual Property Rights," he says. "Failure to take advantage of this flexibility actually constitutes a breach of a party's legal obligations and violates the human rights of their citizens."

According to the Pharmaceutical Research and Manufacturers of America organization, it takes about $800 million to bring a drug to the marketplace. As a result, a drug company needs an incentive to make such an investment. That incentive, Cann says, often comes in the form of anticipated profits that depend upon patent protection.

"An AIDS drug cocktail costs between $10,000 and $15,000 a year in the United States," he says. "The cocktail has been available for about $350 a year in some African nations, but a person making only $1 a day still can't afford it."

Pharmaceutical companies have been trying to help by offering some drugs free and some at cost, primarily in Africa, he notes. But, he adds, the companies are not charitable organizations nor should they be viewed that way.

Balancing Needs
"There can be a conflict between the needs of dying people and the need for incentives to invest in research and development," says Cann. "And the duty of nations to fulfill certain human rights may conflict with Western notions of intellectual rights protection."

The HIV/AIDS epidemic is stripping away the ability of a nation to advance the economic, political, and social development of its citizens, he says.

Cann hopes the tragedy of the HIV/AIDS crisis will lead nations to a new sense of human interdependence, debt forgiveness, and support for U.N. Secretary-General Kofi Annan's AIDS Fund. The goal for the fund is $7 to $10 billion annually, with much of the money targeted for the care and support of those with HIV as well as for prevention.

Cann's current research is funded by a grant from the School of Business's marketing department and the School's Center for International Business Education and Research.

His previous research addressed such issues as the anti-dumping/ antitrust dichotomy, economic sanctions, and the establishment of a new balance between sovereignty and multilateralism.

His work has been published in academic journals including The Yale Journal of International Law, the University of Pennsylvania Journal of International Economic Law, and the Notre Dame Law Review.

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