Developments and Obstacles to the Right of Access to Medicines: A Study of Human Rights, International Trade and Pharmaceutical Business

Abstract: The right of access to medicines has challenged the common perception that economic, social and cultural rights, due to their progressive character, are aspirations rather than a legal set of obligations. It has received strong and sustainable global support and has achieved a remarkably detailed legal definition within the UN human rights system, including the provision of access to essential medicines as an immediate obligation, not subjected to resource constraints. Meanwhile, the protection for pharmaceutical patents has achieved unprecedented strength, while definitely excluded from the human rights protection system. This thesis details what the right of access to medicines exactly entails and investigates how it applies outside the boundaries of the human rights system and outside the general field of State obligations. It concludes that although the right of access to medicines has found recognition on international trade law, the obligations it sets to States do not resonate strongly enough in this field in order to prevent a legal conflict between the right of access to medicines and pharmaceutical patent protection. Furthermore, the global perception of an unbalanced relationship between these rights put States and pharmaceutical companies in a direct conflict, preventing the development of partnerships and pressuring for a rushed and incomplete development of Corporate Social Responsibility in the pharmaceutical sector. Hence, international law is failing to provide clear, safe and effective guidance for States to freely and democratically determine their health policies, particularly in the case they are unable to fulfil their obligations under different fields of law. Simultaneously, it creates an unstable economic environment for the further development of the pharmaceutical industry.