From the Universal Declaration of Human Rights to a Pandemic Treaty: Will a Right to Medicines Forever be ‘Under Construction’?

Abstract

Global disparities in access to COVID-19 vaccines have illuminated long-standing tensions between intellectual property rights and the right to health. Debates over solutions to these disparities have focused on a waiver to the TRIPS Agreement and a prospective pandemic treaty which will attempt to regulate the impact of intellectual property rights on access to essential pandemic health goods. These disparities and debates underscore the imperative for effective legal solutions capable of addressing the restrictive impact of intellectual property rights on the affordability and production of essential health products. Yet from a legal perspective, a claim for affordable medicines is at its essence a fundamental human right, especially that of the right to health. While the right to health has long been entrenched within international human rights law, the legal and political force of a right to medicines is less clear. Accordingly, this article broadly analyses the legal and political state of play of a right to medicines in international law. It proceeds in the following ways: (1) it explores how health fits into the conceptual foundations of human rights; (2) it considers evidence from international law and policy of the legal and political emergence of a right to medicines as part of rights to health and science; (3) it considers the implications of the TRIPS waiver and of a prospective pandemic treaty for the development of this right; (4) it concludes with thoughts about what these developments imply for the legal and political force of a right to medicines in international law.