The right to health and pharmaceutical companies in developing countries: access to medicines

Abstract

After extensive debates regarding the status of the right to health as belonging to the category of Economic, Social and Cultural rights (ESCR), today the right to health is considered as a fundamental human right for everyone and should be protected as such. However, at present people living in developing countries are often deprived of their right to health. Among various factors which contribute to this reality this thesis will focus on the conflict between the Intellectual Property (IP) regime as it is currently evolving (TRIPS Agreement, TRIPS-Plus and ISDS provisions) and access to medicines as well as the role of patent-holder pharmaceutical companies within this conflict. Although States’ human rights obligations for the realization of the right to health are widely established and the adverse impact of strong IP protection for pharmaceutical products on access to medicines is extensively discussed, this thesis will examine how the corporate-friendly nature of the IP regime combined with the absence of right-to-health responsibilities of the pharmaceutical industry within international law exacerbate the problem of lack of access to medicines in developing countries. A discussion on a theoretical level regarding the conflict between patentability of and access to medicines as well as an elaboration on specific cases will indicate how powerful pharmaceutical companies influence the evolution of the IP regime and are provided with even more power to interfere (directly and indirectly) with the right to health in the name of their purely corporate interests. Based on this analysis, the necessity for right-to-health responsibilities of the pharmaceutical industry will become apparent. Thus, the last part of the thesis places the discussion within the context of the evolving Business and Human Rights (BHR) discourse and attempts to determine the nature and the content of the right-to-health responsibilities of pharmaceutical companies that could contribute to a balance between IP rights and access to medicines in developing countries and to a more right-to-health compliant conduct on the part of the patent-holder pharmaceutical companies.