The Rights-Based Approach to Intellectual Property and Access to Medicine : Parameters and Pitfalls

Access to essential medicines is a fundamental component of the human right to adequate health. In the face of global pandemics, rising drug costs continue to attract a great deal of attention and have opened up a space for the broader conversation around the interaction of states’ human rights obligations with their international financial commitments, particularly in the realm of trade and intellectual property. Patent protections can interfere with access to medicine in critical ways, resulting in a “global drug gap” wherein novel drugs are often inaccessible to most of the world’s population. It has been suggested that the human right to health offers a valuable framework for addressing this gap. This Paper will appear in a forthcoming collection entitled “Balancing Wealth and Health: Global Administrative Law and the Battle over Intellectual Property and Access to Medicines in Latin America” (Rochelle Dreyfuss and César Rodríguez Garavito, eds.). It analyzes the parameters and pitfalls of a rights-based approach to access to medicines, focusing on the work of international human rights bodies, mechanisms, and procedures on the question of balancing intellectual property and human rights. Part I outlines both the broad and specific parameters of the rights-based approach to intellectual property and access to medicine, while Part II addresses the impediments and obstacles to implementing such an approach in practice. These obstacles arise in connection to key inter-related deficits in international human rights law around the issues of legitimacy, accountability, and domestic capacity. The Paper concludes that the full and equitable realization of the right to adequate health depends greatly on the capacity and political inclination of domestic actors to enforce international norms