On The Reform Of The TRIPS Agreement From The Perspective Of International Human Rights Law

Since 1990s, the adverse effects which the institutions of the international protection for intellectual property rights, especially the《Agreement on Trade-Related Aspects of Intellectual Property Rights》(hereinafter《TRIPS Agreement》) under WTO, affected the realization of the human rights which include the right to health, the right to culture, the right to food and the right to development etc. of the developing countries and their people have become the focus that the various actors of the international society have been paying attention to generally, and thus, the issue linkage of "the relationship between intellectual property rights and human rights" is becoming a important research field. No matter for the harmonious realization of the international protection for intellectual property rights and the international protection for human rights, or the orderly development of the international law system, this research is significant. Among the complicated and important problems of "the relationship between intellectual property rights and human rights", the issues which are often concerned and disputed include: the divergence of the human right attribute of intellectual property rights ; the effects of《TRIPS Agreement》and intellectual property rights on the international protection for human rights; the reform of the international intellectual property law (study with《TRIPS Agreement》as its center). From the perspective of international human rights law, the author discusses these issues which are closely linked each other by exercising correlative legal fundamentals in this dissertation.This dissertation is divided into three parts: Introduction, Text, and Conclusion,and the Text consists of four chapters.In introduction part, the author introduces briefly the definition of the researchtheme. Furthermore, academic history is reviewed, and the scope of research, themajor issues to be explored, and the basic structure of this dissertation are defined.At length, the purpose and the meaning of the research are explained. The basic theoretical question which needs making clear first is whether intellectual property rights have human right attribute in the research of "the relationship between intellectual property rights and human rights". In chapter 1,firstly, this dissertation discusses the attribute of intellectual property rights and human rights separately; on this basis, through analyzing the related theories of intellectual property rights, reviewing the historical origin of intellectual property rights institutions, comparing the characters between intellectual property rights and human rights, reading the related provisions of international human right documents, the author argues that intellectual property rights is not human right, but the tool of promoting realization of human rights.In order to understand the arising of the conflicts between《TRIPS Agreement》and international protection for human rights, it is certainly necessary to review diachronically the institutions of the international protection for intellectual property rights and that of the international protection for human rights. In chapter 2, taking《TRIPS Agreement》as the dividing line, this dissertation summarizes, reveals the characters and trends of the development and evolvement of the institutions of the international protection for intellectual property rights; and then, this dissertation summarizes the characters and trends of the development and evolvement of the institutions of the international protection for human rights. Through this historical review, the author argues that, the origin that《TRIPS Agreement》run afoul of basic human rights for example the right to health and the right to culture etc. is that the separate development between the institutions of the international protection for intellectual property rights and that of the international protection for human rights since they had been established.In order to understand deeply the conflicts between《TRIPS Agreement》and international protection for human rights, it is quite necessary to anatomize synchroniclly the international human rights documents,《TRIPS Agreement》and its implementing practices. In chapter 3, this dissertation analyses concretely the representations of the conflicts Between《TRIPS Agreement》and the realization of the right to culture, the right to health, the right to food, the right to development etc.. And then, the reasons that the conflicts arose are discussed. Through this transverse factual review, textual analyses and theoretical analyses, the author argues that, the conflicts between《TRIPS Agreement》and international protection for human rights contain the direct conflict between the rules, and embody more mainly the conflicts of rights. From the internal perspectives of law, this charter analyzes the main reasons of their conflicts in these aspects which contain the interests' conflicts of the different subjects of rights and the institutional conflict in international law. Furthermore, from the external perspectives, this charter comments on the arising of their conflicts through these aspects which contain the economic development level of one's country, the concluding negotiation of《TRIPS Agreement》.The most important issue in the research of "the relationship between intellectual property rights and human rights" is how to resolve the conflicts between《TRIPS Agreement》and international protection for human rights, and is discussed in the fourth chapter of this dissertation. In chapter 4, firstly, the author argues the effective method to resolve or relieve their conflicts is through legislative approach, namely the institutions reform of《TRIPS Agreement》, and this reform must harmonize with international human rights law. And then, this author reviews the negotiating status quo of the topics in discussion in relation to《TRIPS Agreement》in Doha Round, and analyzes the international conditions in which the reform of《TRIPS Agreement》is going. From the should-be angle of the development of the legal system, this dissertation puts forward the principles of guiding the reform of《TRIPS Agreement》,discusses the standpoints and strategies choices of China in the issues negotiation in relation to《TRIPS Agreement》, comments on the concrete advices of the reform of《TRIPS Agreement》which the other scholars and the WTO members have suggested. On this basis, the author argues that the institutions reform of《TRIPS Agreement》which is "development orientated" and is instrumental in promoting the realization of human rights will be inevitable. The humanization of International law, including the international institutions of protecting intellectual property which takes《TRIPS Agreement》as its center is a general trend.In the concluding part, based on "the major issues to be explored" that are raised in introduction part, basic propositions in this dissertation are summarized.