| p>The Trade related aspects of intellectual property | | | | in other expressions that are used in it for i.e. |
| rights (TRIPS) that was adopted in 1994 in Uruguay | | | | "national emergency", "anti-competitive practices"... |
| during the General Agreement on Tariffs and Trade | | | | But some of those expressions remain with no clear |
| (GATT) in 1994. The TRIPS is been followed by the | | | | definitions in international law. |
| World Trade Organization (WTO). The latter | | | | This being said, we can clearly foresee that the |
| establishes the minimum requirements of intellectual | | | | better the protection of the patent is the higher the |
| property law. Like other rights (i.e.: the right to | | | | price of AIDS drugs will be. But many of AIDS drugs |
| health), this right is actually protected by many | | | | were developed before the TRIPS agreement, |
| international instruments. By protecting IP we are | | | | therefore not protected by this agreement. For |
| causing harm to many people, by making it | | | | those that are actually protected, some says (mostly |
| inaccessible. To quote Patrick L. Wojahn's, he | | | | the pharmaceutical companies), that this patent |
| «discusses the compatibility between IP rights | | | | protection is a must because of having back the |
| and the right to health regarding AID drugs and the | | | | money invested for those research and will allow a |
| AID crisis in developing country». | | | | pharmaceutical company to research even more; I |
| One of the international instruments that recognize | | | | don't buy this argument stating that often it is |
| the right to health is the International Covenant on | | | | governments that actually pays for most of those |
| Economic, Social and Cultural Rights (ICESCR), which | | | | researches. In fact, with a program like the Scientific |
| referred to an obligation to respect (avoiding | | | | Research and Experimental Development |
| interference with the enjoyment of this right), | | | | (SR&ED) credit Tax given by the government, |
| protect (requires to take measures that prevent | | | | this is a very interesting incentive to Scientific |
| third parties from interfering with his right) and fulfill | | | | Research not the reimbursement of all (100%) fees |
| (requires to take positive steps to fulfill its obligation). | | | | related those Scientific Research! |
| Aware of the actual difficulties of applying too rigidly | | | | On the view of both topics, the impact of a strict |
| the ICESCR, the Committee on Economic, Social and | | | | application of the TRIPS in regards to an adequate |
| Cultural Rights (CESCR) requires only that a state will | | | | salary, and conclude by saying that there should be |
| progress by using the maximum of their resources, | | | | no linked between a salary and the amount |
| but there is no current effective follow up. This said, | | | | pharmaceuticals companies can retain. Then Wojahn |
| Patrick L. Wojahn points out that all actual | | | | goes on, by mentioning few alternative solutions to |
| interpretation of the definition of the right to health | | | | the conflicts of both rights like a price controls (but |
| includes the right to access AIDS drugs, and failure to | | | | this cost a lot to administer and creates tension), |
| do so is a violation to the obligation to fulfill previously | | | | health insurance (most of them only covers up t0 |
| mentioned. | | | | 50% and also it will require lots of funding), and direct |
| On the other hand, the TRIPS is linked with the | | | | donations and bulk purchasing (there are hidden cost |
| countries that are part of the GATT in order to | | | | associated with donations or that donations are |
| enforce more effectively the intellectual property | | | | preventing development of a generic drug in the |
| rights. Lot of developed countries will not approve | | | | county and there isn't much a price reduction). |
| the TRIPS if some other issue has not been | | | | Finally, according to the VCLT that states in its s. 31 |
| previously resolved, since it is a major | | | | that a treaty has to be interpreted with good faith. |
| «concession already». Nevertheless, the | | | | Talking about interpretations, the first is to look at all |
| United-States have required a unique treatment from | | | | the TRIPS itself. Another way to interpret a treaty |
| the TRIPS. Furthermore, the TRIPS really does | | | | and to enforce it even more is the recognition of the |
| protect the patent holder, i.e. s. 27 states that it will | | | | right to health as an international customs. There is |
| only allow from a country to excluded from | | | | also as mentioned the ICESCR where 143 countries |
| patentability if it is a question of public security or | | | | are actually members, adding another way to |
| morality, but this is only if no other option are | | | | enforce more effectively the right to health. |
| available. We even see the importance of this treaty | | | | |