Pharmaceutical Patents and the Human Right to Health : The Contested Evolution of the Transnational Legal Order on Access to Medicines

Disputes over the regulation of access to medicines are occurring in multiple transnational, national, and local venues. Competing groups of states and non-state actors shift horizontally and vertically among these forums in an effort to develop competing legal rules over the propriety of granting intellectual property (IP) protection to newly developed life-saving drugs. This chapter applies the framework of Transnational Legal Orders (Terence C. Halliday & Gregory Shaffer, eds. 2015) to explain the origins of these controversies and their consequences. The chapter argues that the current state of affairs arose from a clash between two previously discrete TLOs — one relating to IP protection (patent protection for new drugs) and the other concerning the right to health (a right of access to essential medicines). As a result of these conflicts, contestations now occur simultaneously and sequentially in multilateral, regional, bilateral, and domestic forums. For many governments, the unfortunate consequence is a marked diminution in the domestic policy space available to regulate access to medicines