Inequalities in Access to Medicine : The Collision of Human Rights Law and Intellectual Property Law in the Context of Access to Medicine

This thesis addresses the role of international law in terms of access to medicine in the global South. More specifically, it ex-plores how on the one hand, international law has a restricting influence on the access and, on the other hand, it can help those in need to argue for the access to medicine. The thesis aims to contribute to a better understanding of the role of public interna-tional law, both intellectual property law and human rights law, in the challenges of access of medicine. The key goal highlight the dimensions of both international IP regime and human rights regime, which are affecting to access to medicine and find out how the overlapping spheres can be used to argumentations either to increase to access to medicine in developing countries or to promote other kinds of goals. One of main questions that this master thesis aims to answer is to out how protection of pharma-ceutical patents under the TRIPS Agreement affects the global South. First, the understanding of international intellectual property regime is crucial to comprehend the collision of regimes. The thesis provides answers to questions on the benefits of patent system and why patents matter in pharmaceutical industry. How-ever, the concentration in relation to IP law is on the TRIPS Agreement, which often cited to be one of the main reasons of inadequate access to medicine in developing countries. Therefore the objectives and purposes and the scope of patenting in the TRIPS Agreement are discussed as well as TRIPS-plus regimes. In addition, developments during and after Doha ministerial meetings and how developing countries have used TRIPS provisions in order to promote access to medicine are discussed as the TRIPS flexibilities actually provide (developing) countries means to promote access to medicine. Secondly, the right to health and access to medicine as a part of it are further discussed in order to bring the understanding of other side of the regime conflict into the same table. Several human rights instruments have confirmed the status of access to medicine in human rights law and states have obligations to take actions for improvement of access to medicine. Nonetheless, further concentration to the relation of human rights law and intellectual property law makes it evident, that even though human rights norms may be claimed to have a primacy over intellectual property law provisions in a collision situation states are likely to follow trade law provisions as the WTO system has stronger enforcement mechanisms than human rights sphere. The division of the world to global from a global North and South brings tensions to the question, as the North holds most of the pharmaceutical patents but the actual need of the pharmaceuticals is mostly demanded in the South. The study intends to uncov-er the occasionally hidden power relations and use the platform provided by international law to draw attention about injustice against dominant consensus and narrative of the North. The thesis focuses in details on North-South differences in opinion and the role of pharmaceutical companies during drafting the TRIPS Agreement as well as later on. The questions related to private actors in public law making and fairness of law are also mentioned. The social realities of developing countries in which the collision of the regimes has in real life effects to access to HIV medi-cines are explored through case examples from India and Brazil. Both countries have been active within the discussion of the effects of the pharmaceutical patenting to access in medicine although strategizes chosen by the states are however a bit differ-ent: India has focused on the pre-grant opposition, strict criteria for patentability and protection of its own pharmaceutical indus-try while Brazil has based its arguments on compulsory licensing and its main concern is connected to its wide health program. All in all, access to medicine in the developing countries remains to be a challenge, as the prices continue to be too high. How-ever, both human rights regime and intellectual property law provide developing countries with means to increase access to essential medicines. On the other hand, both regimes can be used against the needs of developing countries. As the questions of power disparities and political will remain to be significant in the context of access to medicines, in the end the choice is to be done whether and how act in manner that no one is left behind