The Compatibility of the Access to Essential Generic Medicines with Human Rights: An Analysis of the In-Transit Seizure of Essential Generic Medicines from India by the European Union
The Covid-19 pandemic has sensitised the global community on the importance of the access to essential medicines. The nations of the world have engaged in a fierce battle over the lifesaving Covid-19 vaccines, in which developed nations have come out successfully. The access to essential medicines h...
Conflict of international norm: whether international human rights law should supersede intellectual property law in cases in which a norm conflict ar
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|The Covid-19 pandemic has sensitised the global community on the importance of the access to essential medicines. The nations of the world have engaged in a fierce battle over the lifesaving Covid-19 vaccines, in which developed nations have come out successfully. The access to essential medicines has long been promoted by the United Nations and other international human rights organisations. This research will also study the case in which a consignment of essential generic medicines from India designated to Brazil was seized, in-transit, by Dutch customs due to a suspected Intellectual Property infringement. Following this incident both India and Brazil filed requests with the World Trade Organization’s Appellate Body to hold consultations with the European Union on the issue of seizure of in transit generic pharmaceuticals by Dutch custom officials. Against this backdrop, this work intends to examine whether the seizure of essential generic medicines from India by the EU is compatible with the standards employed by international human rights law. It will also investigate the impact that European Council Regulation 1383/2003 has on in transit medicine which, by default, was never intended to enter the domestic market of the EU in the first place. In this regard, it is worth noting that both Brussels and New Delhi seems to have much in common, including that they happen to be large democracies with India being the largest in the world. Both adhere to the rule of law, the promotion of human rights and have large economies. New Delhi was also among the first to establish bilateral relations with the European Economic Community in 1963. In recent times, both unions have engaged in negotiations over a bilateral Free Trade Agreement, which has been put on hold.
This work endeavours to reflect on the aspect of international trade agreements of the EU. More precisely, it will address the higher IPRs (“TRIPS plus”) standards that seem to be part and parcel of both bilateral and multilateral trade agreements of the EU. It shall also consider both FTA’s and Economic Partnership Agreements of the EU with LDC and developing nations. In addition, it will examine whether the IPRs that are applied by the Brussels could potentially obstruct the full enjoyment of human rights.
Finally, the overarching research question of this PhD project is whether the seizure of essential generic medicines from India by the European Union, designated to developing countries, is compatible with the right to health. More precisely, it will further examine whether the access to essential generic medicines could be classified as falling under the category of the right to health (human right) and consequently whether the seizure and subsequent detention of the in-transit cargo of these medicines would qualify as a violation of international human rights law. In this context, it would be relevant to examine whether international human rights law should supersede intellectual property law in cases in which a norm conflict arises. More importantly, this work will assess whether the right to health, in the form of access to medicines, should take precedence over IP law in case of a conflict between both norms. Another issue that will be investigated is whether Brussels’ utilisation of IPRs protection, and the subsequent seizure as well as detention of generic medicines from India, could, potentially, have created a barrier to international trade in the field of generic medicines.