Policy Space for Public Health & SDG3: A Literature Review on the Impact of Trade and Investment Treaties on Access to Medicines

In 1995, the Agreement on Trade-Related Aspects of Intellectual Property Rights (TRIPS) introduced mandatory pharmaceutical patenting to the developing world for the first time. Alongside the regulatory challenges that this produced, TRIPS explicitly permitted some flexibilities enabling countries to protect intellectual property in diverse ways. Subsequently, modern bilateral and regional free trade agreements contain additional commitments, seeking to harmonize and escalate pharmaceutical intellectual property protection. These commitments become more concerning when paired with investor-state dispute settlement (ISDS), which permits private investors to challenge domestic access to medicine policy.

A working paper by Hattie Werk highlights the legal literature discussing how treaties could affect domestic policy-making toward access to medicines. The authors focus on scholarship which analyzes the specific text of international treaties to assess the extent to which nation states can formulate policies that expand the access to medicines for those in need.

The author finds  that several gaps remain in the literature analyzing treaty provisions. There is a need for literature that examines non-US treaties and elements other than intellectual property provisions that can have an effect on a country’s policy space to regulate access to medicines. The volume of literature discussing cases with ISDS is also too small. More literature is needed examining the effects of relevant international disputes, as they arrive, because the decisions could limit policy space with regard to access to medicines.