scholarly journals THE LEGAL IMPLICATION OF COMPULSORY LICENCE PHARMACEUTICAL PRODUCTS IN THE TRIPs AGREEMENT TO THE PROTECTION OF THE RIGHT TO HEALTH IN DEVELOPING COUNTRIES

2018 ◽  
Vol 18 (1) ◽  
pp. 1
Author(s):  
Sri Wartini
Keyword(s):  
Developing Countries ◽  
Compulsory License ◽  
Right To Health ◽  
Pharmaceutical Products ◽  
Pharmaceutical Product ◽  
Trips Agreement ◽  
Human Right ◽  
Compulsory Licence ◽  
The Right ◽  
Legal Implication

Compulsory license of pharmaceutical products in the Trade Related Aspects of Intellectual Property Rights (TRIPs) Agreement attempts to balance the interest of patent holders and The right to health. The access of medicines in developing countries for the epidemic diseases, such as, HIV/AIDS  medicine is crucial to  protect The right to health. The objective of the research is to analyze comprehensively the legal implication  of compulsory license for the pharmaceutical product to the protection of The right to health in developing countries. It is  a normative juridical research by applying conceptual and  comparative approaches. The results of the research  shows that: first, the implementation of compulsory licence is in accordance with the international human right law: second, the legal implication of the compulsory license  causes the adoption of policy and regulations regarding the protection of the right to health in developing countries, such as Indonesia, Malaysia, Brazil, India and  South Africa.  Keywords : Compulsory license, pharmaceutical products, legal implication and The right to health

scholarly journals Medical Patents and the Right to Health – From Monopoly Control to Open Access Innovation and Provision of Medicines

2019 ◽  
Vol 61 (1) ◽  
pp. 153-182
Author(s):  
Philippe Cullet ◽  
Hu Yuanquiong
Keyword(s):  
Human Rights ◽  
Intellectual Property ◽  
Property Rights ◽  
Intellectual Property Rights ◽  
Patent Protection ◽  
Access To Medicines ◽  
Right To Health ◽  
Trips Agreement ◽  
Human Right ◽  
The Right

The coming into force of the Agreement on Trade-Related Aspects of Intellectual Property Rights (TRIPS) in the mid-1990s led to a massive strengthening of intellectual property rights in the global South. This was particularly controversial concerning restrictions on access to medicines and set the stage for spirited debates concerning the impacts of medical patents on the realisation of the right to health in the context of the HIV/AIDS crisis. Efforts to reconcile the right to health and medical patents led to a minor amendment of the TRIPS Agreement that has hardly had any impact on the ground while further strengthening of patent protection was obtained, for instance, through bilateral agreements. In the human rights field, attempts to strengthen the protection afforded by the right to health have been partly diluted by efforts to strengthen the claims of inventors under human rights law. At this juncture, two main elements need to be taken forward. The first is to revisit our understanding of the human right to health to ensure, for instance, that there is no compromise in the liberal promise of universality, in particular access to medicines for every person who needs them. The second element is the need to rethink the way in which legal incentives are given to innovate. In a context where patents are the only recognised legal incentive to innovate in the medical field, this discourages the development of medicines for diseases that may affect mostly poor patients, since companies need to recoup their investments. Further, it militates against giving attention to other systems of medicine whose innovations can usually not be protected under the patent system, even where treatments are effective. Keywords: TRIPS Agreement, Access to Medicines, Right to Health, ICESCR

scholarly journals THE HUMAN RIGHT TO HEALTH: A RETROSPECTIVE ANALYSIS AFTER 70 YEARS OF INTERNATIONAL RECOGNITION

2018 ◽  
pp. 24-42
Author(s):  
MARÍA DALLI
Keyword(s):  
Human Rights ◽  
Right To Health ◽  
World Health ◽  
Health Coverage ◽  
Human Right ◽  
The Sustainable Development ◽  
Cultural Rights ◽  
Health Organization ◽  
The Individual ◽  
The Right

In 1948, the General Assembly of the United Nations adopted the first international text recognising universal human rights for all; the Universal Declaration of Human Rights. Article 25 recognises the right to an adequate standard of living, which includes the right to health and medical care. On the occasion of the 70th anniversary of the Declaration, this article presents an overview of the main developments that have been made towards understanding the content and implications of the right to health, as well as an analysis of some specific advancements that aim to facilitate the enforcement thereof. These include: a) the implication of private entities as responsible for right to health obligations; b) the Universal Health Coverage goal, proposed by the World Health Organization and included as one of the Sustainable Development Goals; and c) the individual complaints mechanism introduced by the Optional Protocol to the International Covenant on Economic, Social and Cultural Rights (adopted on the 10th December 2008, 60 years after the UDHR).

Optimal Policy for Biopharmaceutical Drugs Innovation and Access in India

2011 ◽  
pp. 74-114
Author(s):  
Rakhi Rashmi
Keyword(s):  
Developing Countries ◽  
Optimal Policy ◽  
Patent Protection ◽  
Trips Agreement ◽  
Public Access ◽  
The Public ◽  
Transfer Of Technology ◽  
The People ◽  
The Right ◽  
Government Initiative

In theory, patents work by providing the inventor an incentive to invent in the first place and then to disclose. Disclosure to the public is rewarded by giving the inventor a monopoly. As product patent and higher patent protection has been advocated by Art 27.1 of the TRIPs agreement on the basis that for greater innovation through transfer of technology is a necessity in developing countries like India as it provides capital to fund expensive innovations, who are otherwise not be able to fund expensive innovations on its own. On the other hand, at the same time drugs are also related with the health of the people and to take care of the health of the people is the utmost priority of any Government and there are issues like accessibility with regard to strong patent protection to biopharma products and data exclusivity. Also as per Art 7 of the TRIPs transfer of technology has to occur to the developing countries in order to promote technological innovations, which is conducive to social and economic welfare. Therefore, striking the right balance between incentive and public access creates a tension is essential. This study suggests optimal policy (Patent and other regulations) to have a balance between biopharma drugs innovation and their access in India while complying with the provisions of the TRIPs agreement by broadly categorising variables such as (1) patent policy such as the scope of biotech patents and the extent of the right in terms of breadth and length; and (2) regulatory environment such as the taxation incentive, Investment policy, Government initiative for the development of this sector etc.

The Human Right to Health and the Virtue of Creative Resolve

2020 ◽  
pp. 36-58
Author(s):  
Nicole Hassoun
Keyword(s):  
Distributive Justice ◽  
Right To Health ◽  
Human Right ◽  
Scarce Resources ◽  
Creative Solutions ◽  
The Right

Some maintain that people lack a human right to health because this right cannot provide guidance for distributing scarce resources. Even if the skeptics are right on this point, the second chapter suggests that is not a reason to reject the right; the role of the human right to health is to provide a kind of hope that can foster the virtue of creative resolve. This resolve is a fundamental commitment to finding creative solutions to what appear to be tragic dilemmas. Rather than helping one decide how to ration scarce resources, the human right to health provides reason to find ways to fulfill everyone’s claims. The hope this right provides gives us a response to apparent tragedy in motivating us to search for ways of avoiding it—rather than an account of distributive justice.

The Human Right to Health and Access to Essential Medicines

2020 ◽  
pp. 13-35
Author(s):  
Nicole Hassoun
Keyword(s):  
Good Life ◽  
Right To Health ◽  
Essential Medicines ◽  
Human Right ◽  
Basic Equality ◽  
Access To Essential Medicines ◽  
The Right ◽  
Complete Account

Living with untreated AIDS is devastating. Patients often suffer from terrible lesions, pneumonia, and nausea; become emaciated; have seizures; and eventually die. The first chapter argues that there should be an enforceable legal human right to health that includes a right to access essential medicines to treat diseases like AIDS. The chapter does not provide a complete account of the right’s basis; the right may also have to protect our basic equality and dignity, for instance. Nevertheless, it argues that health is necessary for, and partly constitutive of, a minimally good life. Lack of access to essential medicines characteristically undermines individuals’ ability to live such lives. So people should have a human right to health that grounds rights to access essential medicines.

The Right to Health

2018 ◽  
pp. 231-264
Author(s):  
Sandra Fredman
Keyword(s):  
Human Rights ◽  
Reproductive Health ◽  
Final Section ◽  
Right To Health ◽  
Individual Rights ◽  
Personal Integrity ◽  
Human Right ◽  
The Right ◽  
The Way

Is health a human right? Many would maintain that it is not. On this view health and ill-health are due to natural causes, not to State actions. Others are concerned that health raises too many polycentric problems to be dealt with through justiciable human rights. These contestations have shaped the way in which the right to health is understood. Section II sketches out the health context. Section III considers jurisdictions in which there is no express right to health, but a right has been derived from rights to life, personal integrity, or privacy. Section IV contrasts this approach with jurisdictions with an express right to health. Section V examines the role of the right to equality, while section VI focuses on reproductive health. The final section returns to the challenges of polycentricity and the extent to which a justiciable right can address systemic issues rather than individual rights to medication.

scholarly journals Pravo na palijativnu skrb za djecu u Republici Hrvatskoj

2020 ◽  
Vol 55 (2) ◽  
pp. 82-91
Author(s):  
Marina Milić Babić ◽  
Marina Hranj
Keyword(s):  
Palliative Care ◽  
Right To Health ◽  
Human Right ◽  
Her Family ◽  
Right To Health Care ◽  
Starting Point ◽  
The Family ◽  
The Republic ◽  
The Right

Palliative care for children means active, complete care on physical, psychological, social and spiritual levels, and it includes collaboration and active work with the family. Palliative care for children lasts during the period of illness and continues after the death of the child in the form of expert assistance to the family in their grief. Such care follows the principles of individual, holistic, transdisciplinary and biopsychosocial-spiritual approaches that come together in promoting the quality of life of a child and his or her family. Numerous legal sources are the starting point for defining palliative care for children as a fundamental human right to health care, as well as for defining basic actions within this fundamental right. The right to palliative care includes rights from different systems, and collaboration and linking of different disciplines are needed in order to meet the needs of the child and his family. The aim of this paper is to present crucial knowledge in the field of palliative care for children and to examine how this right is implemented and legally regulated in the Republic of Croatia.

The human right to health and the struggle for recognition

2011 ◽  
Vol 38 (3) ◽  
pp. 569-588 ◽  
Author(s):  
PATRICK HAYDEN
Keyword(s):  
Health Inequalities ◽  
Political Action ◽  
Right To Health ◽  
Human Condition ◽  
World Health ◽  
Human Right ◽  
Treatment Action Campaign ◽  
The Face ◽  
The Right ◽  
Struggle For Recognition

AbstractPersistent health inequalities exist globally, affecting high-income countries and blighting the developing world. Health inequalities currently are one of the greatest challenges facing realisation of the human right to health. This article argues that the struggle for the right to health in the face of such inequalities requires embracing three critical considerations: redistribution, representation, and recognition. While the analysis of the right to health has been formulated predominantly around theories of distributive justice, I suggest that a more normatively compelling account will link the politics of economic redistribution to the politics of sociocultural recognition. A recognition approach, which views rights claims as grounded on the vulnerability of the human condition, can show how rights are emergent in political action and that the ability to claim and exercise the human right to health is contingent upon recognition of diverse sociopolitical statuses. From this perspective, there are no ‘neutral’ constructions of the rights-bearing subject and conflict between different political framings of the right to health is a consequence of the struggle for recognition. This theme is illustrated by comparing conservative, affirmative, and transformative processes of recognition in the struggle for access to essential antiretroviral medicines by South Africa's Treatment Action Campaign.

Advancing Health Rights in a Globalized World: Responding to Globalization through a Collective Human Right to Public Health

2007 ◽  
Vol 35 (4) ◽  
pp. 545-555 ◽  
Author(s):  
Benjamin Mason Meier
Keyword(s):  
Public Health ◽  
Medical Care ◽  
Health Systems ◽  
Health Inequities ◽  
Right To Health ◽  
Human Right ◽  
Public Health Systems ◽  
The Right ◽  
Health Rights ◽  
Globalized World

In confronting the insalubrious ramifications of globalization, human rights scholars and activists have argued for greater national and international responsibility pursuant to the human right to health. Codified seminally in Article 12 of the International Covenant on Economic, Social and Cultural Rights (ICESCR), the right to health proclaims that states bear an obligation to realize the “highest attainable standard” of health for all. However, in pressing for the highest attainable standard for each individual, the right to health has been ineffective in compelling states to address burgeoning inequalities in underlying determinants of health, focusing on individual medical treatments at the expense of public health systems. This article contends that the paradigm of individual health, focused on a right to individual medical care, is incapable of responding to health inequities in a globalized world and thereby hampers efforts to operationalize health rights through public health systems. While the right to health has evolved in international discourse over time, this evolution of the individual right to health cannot address the harmful societal ramifications of economic globalization. Rather than relying solely upon an individual right to medical care, envisioning a collective right to public health – a right applied at the societal level to address underlying determinants of health – would alleviate many of the injurious health inequities of globalization.

A Global Framework Convention on Health: Would it Help Developing Countries to Fulfil Their Duties on the Right to Health? A South African Perspective

2010 ◽  
Vol 38 (3) ◽  
pp. 640-646 ◽  
Author(s):  
Mark Heywood ◽  
John Shija
Keyword(s):  
Public Health ◽  
Developing Countries ◽  
South African ◽  
Global Scale ◽  
Right To Health ◽  
Health Aid ◽  
African Perspective ◽  
Intellectual Knowledge ◽  
The Right ◽  
Health Experts

It is arguable that the delivery of global health has reached an impasse. This is evident not only in unresolved debates that are raging about where to allocate health aid or how to sustain and expand funding for AIDS treatment, but also in challenges facing national health systems that are incapable of purely domestic resolution. But there is some irony and much opportunity in this situation. Not only have the last 20 years seen an unprecedented growth in funding for health, mainly through funding for AIDS, but there has also been a range of initiatives and ideas that have generated better knowledge not only of the determinants of health, but also of how to attain it. Scientists, public health experts, and activists have created a store of intellectual knowledge, technology, and ideas, which, if properly and fairly deployed, might provide the opportunity to re-launch tangible progress towards the progressive realization of the right to health on a global scale.

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