Ensuring Pharmaceutical Accountability for Human Rights and Access to Medicines: The Dutch Duty of Care Standard Applied to Pharmaceutical Companies

Abstract To effectively protect the human right to health, the global accountability gap for pharmaceutical companies regarding access to medicines must be addressed. Pharmaceutical companies have no formal obligations under human rights law; however, they do have responsibilities, and some companies (directly or indirectly) undermine the right to health and equitable access to medicines. We propose that pharmaceutical companies can be held accountable for human rights interferences by means of a provision in Dutch tort law containing an ‘unwritten duty of care’, an interpretation which is supported by the international human rights framework and recent Dutch jurisprudence. We propose a concrete example of how this duty could be applied in Dutch courts, which have previously held a private corporation accountable for contributing to dangerous climate change in the Milieudefensie et al. v Royal Dutch Shell case. To establish whether this duty could be applied to pharmaceutical companies, we use the court’s reasoning in Milieudefensie to assess the existence of a global consensus on the need for a pharmaceutical duty of care. We argue that human rights norms and soft law instruments that pharmaceutical companies themselves have endorsed prove that there is a growing consensus regarding the damage associated with excessively priced medicines, and an urgent need to establish a framework for holding pharmaceutical companies accountable for ensuring equitable access to medicines through legal measures.