Abstract

Pharmaceutical companies significantly influence access to medicines but currently lack formal obligations under human rights law, despite their responsibilities. Drawing on Dutch tort law, we propose applying an ‘unwritten duty of care’ to hold these companies accountable for undermining the human right to health, supported by international human rights frameworks and recent Dutch jurisprudence. We assess whether Dutch courts could apply this duty to pharmaceutical companies by examining the global consensus on the need for a pharmaceutical duty of care. We argue that human rights norms, soft law instruments, and even commitments made by pharmaceutical companies themselves point to a growing recognition of the harms caused by excessively priced medicines. Establishing such a duty through legal measures could create a critical framework for ensuring equitable access to medicines, protecting the right to health globally.

Since this paper was written, the Court of Appeal in The Hague overturned the 2021 Milieudefensie v. Shell decision requiring a 45% emissions reduction but upheld the principle that companies can breach social standards of care through the indirect horizontal effect of human rights. Our paper builds on this principle, proposing a nuanced legal duty for pharmaceutical companies to price medicines fairly, drawing on human rights frameworks, EU legislation such as the Corporate Sustainability Due Diligence Directive, and case-by-case analysis to address corporate responsibilities in ensuring equitable access to medicines.

This article will become available to the public in the UvA's online repository in summer 2025. Please contact the authors (s.k.perehudoff@uva.nl) for queries.