Pharmaceutical Patents and the Human Right to Health: The Contested Evolution of the Transnational Legal Order on Access to Medicines

Transnational Legal Orders (Terence C. Halliday & Gregory Shaffer, eds. 2015)

Duke Law School Public Law & Legal Theory Series No. 2016-18

29 Pages Posted: 25 Feb 2016 Last revised: 27 Apr 2016

See all articles by Laurence Helfer

Laurence Helfer

Duke University School of Law; University of Copenhagen - iCourts - Centre of Excellence for International Courts

Date Written: 2015

Abstract

Disputes over the regulation of access to medicines are occurring in multiple transnational, national, and local venues. Competing groups of states and non-state actors shift horizontally and vertically among these forums in an effort to develop competing legal rules over the propriety of granting intellectual property (IP) protection to newly developed life-saving drugs.

This chapter applies the framework of Transnational Legal Orders (Terence C. Halliday & Gregory Shaffer, eds. 2015) to explain the origins of these controversies and their consequences. The chapter argues that the current state of affairs arose from a clash between two previously discrete TLOs — one relating to IP protection (patent protection for new drugs) and the other concerning the right to health (a right of access to essential medicines). As a result of these conflicts, contestations now occur simultaneously and sequentially in multilateral, regional, bilateral, and domestic forums. For many governments, the unfortunate consequence is a marked diminution in the domestic policy space available to regulate access to medicines.

Keywords: patents, medicines, TRIPS, health, right to health, regime complexity, transnational legal orders

Suggested Citation

Helfer, Laurence, Pharmaceutical Patents and the Human Right to Health: The Contested Evolution of the Transnational Legal Order on Access to Medicines (2015). Transnational Legal Orders (Terence C. Halliday & Gregory Shaffer, eds. 2015); Duke Law School Public Law & Legal Theory Series No. 2016-18. Available at SSRN: https://ssrn.com/abstract=2737170

Laurence Helfer (Contact Author)

Duke University School of Law ( email )

210 Science Dr.
Box 90360
Durham, NC 27708
United States
+1-919-613-8573 (Phone)

HOME PAGE: http://law.duke.edu/fac/helfer/

University of Copenhagen - iCourts - Centre of Excellence for International Courts ( email )

University of Copenhagen Faculty of Law
Karen Blixens Plads 16
Copenhagen S, DK-2300
Denmark

HOME PAGE: http://jura.ku.dk/icourts/

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