A transformative power? The role of the human right to medicines in accessing AIDS medicines: International human rights law, TRIPS and the South African experience

This dissertation explores the power of the human right to medicines to enable access to antiretroviral medicines (ARV) for millions of people with Human Immunodeficiency Virus (HIV) and Acquired Immune Deficiency Syndrome (AIDS) throughout the world. Focusing on the right to health in international law, it argues that this right holds a transformative potential to overcome the political and economic obstacles to access posed by the World Trade Organization's Agreement on Trade-Related Aspects of Intellectual Property (TRIPS), the contestation of price reductions by multinational pharmaceutical companies and their host governments, and government denials of AIDS medicines. It argues that the transformative power of this right to overcome these obstacles is well illustrated in the South African case study, and that primary human rights battles over AIDS medicines in the country illustrate the contingent legal, social and political variables that can determine this right's efficacy. The dissertation identities these variables, explores these barriers and analyzes the international human right to medicines, before proceeding to explore the force of rights in the South African case study.; In doing so, the dissertation adopts the analytical framework of international legal compliance theories which debate whether actors comply with norms because they are coerced or persuaded into doing so. It suggests that the persuasive power of this right derives from its normative status in international law, amplified by rights discourse, advocacy, social mobilization and the devastating consequences of HIV/AIDS. However rights-related persuasion is less effective where actors have entrenched economic or political interests, and in such cases coercion will be necessary. While litigation is a traditionally coercive legal tool, public pressure and moral shaming can be similarly coercive. The dissertation concludes that these functions are interdependent and mutually enhancing, and that the persuasive power of the right to medicines is intimately connected to its coercive force. When actors can maximize both the coercive and persuasive force of the right to medicines, they may be able to overcome legal and political obstacles to access.