Research On The Accessibility Of Medicines Under International Law

“Accessibility of Medicines ” was firstly mentioned by the World Health Organization,emphasizing that everyone can get the medicines they need.However,with the establishment of international intellectual property rights system represented by the TRIPS Agreement(Trade Related Intellectual Property Rights Agreement,hereinafter “TRIPS Agreement”),the price of medicines has become so high by the protection of drug patents that many people in developing countries cannot afford it.Research on “Accessibility of Medicines ” from the perspective of international law helps to provide the suggestions for countries especially those developing countries to better supply essential medicines.This paper mainly includes the analysis of two related rights about the Accessibility of Medicines under international law and the Compulsory Licensing,Parallel Imports in TRIPS Agreement.This paper holds the following arguments: firstly,improving the Accessibility of Medicines is positive state obligations under international law;secondly,since the Right to Health is human rights,the Intellectual Property Right is not,therefore,the Right to Health should be given priority if there is a conflict between them;finally,the country,especially developing countries,should make full use of the regulations in TRIPS Agreement and other international documents to improve the Accessibility of Medicines.There are five parts in this paper in addition to the introduction.The first part clarifies that the subject of this paper is the Accessibility of Medicines.And the Medicines in this paper refers to “ essential Medicines”.Meanwhile,the author briefly introduces the concepts of“Original Drug”,“Generic Drug”and“New Drug”.Then,the author explains the connotation and influential factors about the Accessibility of Medicines.The second part aims at exploring two related rights about the Accessibility of Medicines under the framework of international law,namely,the Right to Health under international human rights law and Intellectual Property Rights of drug within the international intellectualproperty system.In this part,the author firstly reviews the previous research on the analysis of the nature of the Right to Health and the current rules of which under international human rights law.Afterwards,the author answers the question why the Accessibility of Medicines belongs to the Right to Health.Then the author further analyzes the non-human rights nature of Intellectual Property Right,which provides theoretical support for the argument that the Right to Health should be given priority if there is a conflict between the Right to Health and Intellectual Property Right.Finally,it is followed by the description of possible conflicts mainly on the Accessibility of Medicines between those two rights and the compromise and balance offered by the international community to resolve the conflicts.The third part refers to the relevant regulations on the Accessibility of Medicines under current international law.Which mainly about the contents of the TRIPS Agreement,the Doha Declaration on Public Health and the Amendment of TRIPS Agreement,revealing the compromise and improvement on the Accessibility of Medicines made by the international society.The most important international organizations involved include the the World Trade Organization,the World Health Organization and the human rights institutions of United Nations.Showing that the Accessibility of Medicines is actually not only relates to the international trading system but also the international human rights system.It is worth noting that although there has been some progress in improving the Accessibility of Medicines through negotiation and conciliation within these international organizations and between developed and developing countries,tension and and interest of conflicts still exist.The fourth part examines the practice of the Accessibility of Medicines in two representative developing countries,namely,Brazil and India.Brazil can provide the experience for Compulsory Licensing to improve the public health within the country.While India has become a model for many developing countries as for its legislation and revision of national patent law,regulations and its developed generic drug industry.The analysis of the practice of these countries mainly aims to understand how to make countries' domestic lawson one hand conforming to the provisions of international law and on the other hand solving the domestic public health problems regards to its specific situation.The last part proposes some suggestions for China to the Accessibility of Medicines in regard as its current public health status quo.On one hand,we need to keep closely to the new changes in international community,such as the World Health Assembly and the trend of international protection of intellectual property rights.On the basis of the general requirements of international law,more emphasis should be given to national real situations;on the other hand,the feasibility and other legal issues of applying the newly-effective TRIPS Agreement amendment in China in light of its actual situation were analyzed.