The State’s Obligations Concerning the Right to Access to Medicines and the Implications for the Use of the TRIPS Flexibilities

This Master thesis takes as a starting point that the human right to health obliges States to apply the flexibilities in the Agreement on Trade-Related Aspects of Intellectual Property Rights (TRIPS) as comprehensively as necessary to ensure access to medicines. The thesis asks whether there is an obligation as opposed to a recommendation to apply the TRIPS flexibilities. In a first step, the normative content of the right to access to medicines will be examined. To do so, the human right to health, the human right to access to medicines as well as the essential elements of the right to health will be explored. Secondly, the State’s internal obligations will be addressed, in general as well as specifically. Thirdly, the TRIPS flexibilities in general as well as certain specific TRIPS flexibilities will be explained. This is followed by the establishment of the legal argument that there is a state obligation to apply the TRIPS flexibilities as a part of the State obligation to protect the right to health. Lastly, the question of an international obligation to facilitate the use of the TRIPS flexibilities will be addressed