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Human Rights and the WTOThe Case of Patents and Access to Medicines$
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Holger Hestermeyer

Print publication date: 2008

Print ISBN-13: 9780199552177

Published to Oxford Scholarship Online: January 2009

DOI: 10.1093/acprof:oso/9780199552177.001.0001

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Access to Medicine as a Human Right in the WTO Order

Access to Medicine as a Human Right in the WTO Order

(p.207) 5 Access to Medicine as a Human Right in the WTO Order
Human Rights and the WTO

Holger Hestermeyer

Oxford University Press

This chapter begins by discussing the extent to which human rights can be applied in WTO dispute settlement, finding that they can only be used as an aid to interpreting the ‘covered agreements’. It then takes up that approach and interprets the ‘TRIPS flexibilities’ using the right to access to medicine. It demonstrates that the right serves as a helpful argument for a broad interpretation of the flexibilities, but suffers from the defect that it is merely one argument amongst many and cannot provide developing countries with legal security as to the interpretation of the flexibilities. It is this lack of legal security that discourages developing countries from making use of the flexibilities, particularly in the face of pressure for greater intellectual property protection by the developed world. The chapter also describes the action taken within the WTO to remedy the problem of access to medicines, its legal status, and analyzes whether the action is sufficient.

Keywords:   TRIPS Agreement, WTO dispute settlement, WTO decisions, TRIPS flexibilities, developing countries, intellectual property protection, access to medicine

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