Trade Related Aspects of Intellectual Property Rights – TRIPS – IP

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The Trade related aspects of intellectual property rights (TRIPS) that was adopted in 1994 in Uruguay during the General Agreement on Tariffs and Trade (GATT) in 1994. The TRIPS is been followed by the World Trade Organization (WTO). The latter establishes the minimum requirements of intellectual property law. Like other rights (i.e.: the right to health), this right is actually protected by many international instruments. By protecting IP we are causing harm to many people, by making it inaccessible. To quote Patrick L. Wojahn’s, he «discusses the compatibility between IP rights and the right to health regarding AID drugs and the AID crisis in developing country».

One of the international instruments that recognize the right to health is the International Covenant on Economic, Social and Cultural Rights (ICESCR), which referred to an obligation to respect (avoiding interference with the enjoyment of this right), protect (requires to take measures that prevent third parties from interfering with his right) and fulfill (requires to take positive steps to fulfill its obligation). Aware of the actual difficulties of applying too rigidly the ICESCR, the Committee on Economic, Social and Cultural Rights (CESCR) requires only that a state will progress by using the maximum of their resources, but there is no current effective follow up. This said, Patrick L. Wojahn points out that all actual interpretation of the definition of the right to health includes the right to access AIDS drugs, and failure to do so is a violation to the obligation to fulfill previously mentioned.

On the other hand, the TRIPS is linked with the countries that are part of the GATT in order to enforce more effectively the Property Aspects of Intellectual Property . Lot of developed countries will not approve the TRIPS if some other issue has not been previously resolved, since it is a major «concession already». Nevertheless, the United-States have required a unique treatment from the TRIPS. Furthermore, the TRIPS really does protect the patent holder, i.e. s. 27 states that it will only allow from a country to excluded from patentability if it is a question of public security or morality, but this is only if no other option are available. We even see the importance of this treaty in other expressions that are used in it for i.e. “national emergency”, “anti-competitive practices”… But some of those expressions remain with no clear definitions in international law.

This being said, we can clearly foresee that the better the protection of the patent is the higher the price of AIDS drugs will be. But many of AIDS drugs were developed before the TRIPS agreement, therefore not protected by this agreement. For those that are actually protected, some says (mostly the pharmaceutical companies), that this patent protection is a must because of having back the money invested for those research and will allow a pharmaceutical company to research even more; I don’t buy this argument stating that often it is governments that actually pays for most of those researches. In fact, with a program like the Scientific Research and Experimental Development (SR&ED) credit Tax given by the government, this is a very interesting incentive to Scientific Research not the reimbursement of all (100%) fees related those Scientific Research!

On the view of both topics, the impact of a strict application of the TRIPS in regards to an adequate salary, and conclude by saying that there should be no linked between a salary and the amount pharmaceuticals companies can retain. Then Wojahn goes on, by mentioning few alternative solutions to the conflicts of both rights like a price controls (but this cost a lot to administer and creates tension), health insurance (most of them only covers up t0 50% and also it will require lots of funding), and direct donations and bulk purchasing (there are hidden cost associated with donations or that donations are preventing development of a generic drug in the county and there isn’t much a price reduction).

Finally, according to the VCLT that states in its s. 31 that a treaty has to be interpreted with good faith. Talking about interpretations, the first is to look at all the TRIPS itself. Another way to interpret a treaty and to enforce it even more is the recognition of the right to health as an international customs. There is also as mentioned the ICESCR where 143 countries are actually members, adding another way to enforce more effectively the right to health.

 

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