An international law perspective on the protection of human rights in the TRIPS agreement: an interpretation of the TRIPS agreement in relation to the right to health
Date
2012
Authors
Xiong, P.
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Book
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Abstract
Intellectual property protection has entered into the global trading era. This is the consequence of the conclusion of the Marrakesh Agreement Establishing the World Trade Organization (WTO) and the inclusion in it of the intellectual property protection law known as the TRIPS Agreement. Intellectual property protection is a system which is based on a balance between the protection of private rights and public interests. The minimum standard of patent protection under the TRIPS Agreement requires all WTO members to make their respective patent laws comply with those minimum standards. The TRIPS Agreement requires pharmaceutical patent protection in all member States. As a result of this patent protection under the TRIPS Agreement, pharmaceutical patent holders enjoy a strong monopoly position and can control the price of medicines by taking advantage of this position. If patent holders inflate drug prices, this will impact on the access to medicines. Therefore, pharmaceutical patent protection under the TRIPS Agreement regime is potentially in conflict with the right to health. The right to health, as a basic human right, entails access to medicine as its essential element, and it requires the parties to human rights treaties to respect, to protect and to fulfil the right. This book analyses the relationship between the TRIPS Agreement and the right to health and relevant human rights norms by using the tools of treaty interpretation of public international law. It explores how the TRIPS regime, and ultimately the whole WTO regime, relates to the relevant human rights norms. Further, it examines the specific relevant provisions of the TRIPS Agreement to determine how far the TRIPS regime relates to the right to health. It ends with an analysis of the TRIPS-plus regime to explore its relationship with the right to health. This book concludes that the TRIPS Agreement should be interpreted with reference to the right to health. This method of interpretation should be applied so that the TRIPS Agreement and the right to health will not be in conflict.