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

This short Paper provides an overview of the rights-based approach to access to medicines, and focuses on the work of international human rights bodies, mechanisms, and procedures on the question of balancing intellectual property and human rights. A plethora of human rights committees, actors and institutions have developed out of the canon of human rights law to monitor the implementation of various treaties and to breathe normative content into various rights, including the right to health. Part I of this Paper 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. Conclusions regarding the extent to which human rights primacy can be realized in the realm of access to medicines are therefore highly country and context-specific.