Abstract
Access to medicines is the lynchpin to realizing a range of human rights, public health and development imperatives. However, without strong policy action to increase access to affordable medicines, there is little hope of achieving the Sustainable Development Goals or of realizing the human right to health. Access to medicines is a fundamental element of the right to health, and the majority of states are bound by core obligations in this regard. Accordingly, states must ensure that this critical human rights, public health and development interest is appropriately prioritized against inadequate resource allocations and competing private or trade interests. This is an imperative which we have argued should have framed the deliberations of the UN High Level Panel on Access to Medicines, convened to propose solutions to the “policy incoherence” between international human rights, trade rules and public health that is impeding access to medicines and the right to health for millions. In this article we explore interpretations in international human rights law regarding state duties towards medicines that should have guided these deliberations, and which were presented by the first author in a submission to the panel. We argue that at least two clear right to health duties support the High Level Panel’s recommendations: (1) the duty to prevent unreasonably high costs for medicines from denying large segments of the population their rights to health; and (2) the core obligation to provide essential medicines. Consequently, we explore three areas of action implied by these duties: (1) consistent implementation of human rights impact assessment; (2) institutionalizing the Agreement on Trade-Related Intellectual Property Rights (TRIPS) flexibilities in law and policy; (3) making permanent the waiver of TRIPS for least developed countries (LDC), and waiving the application of TRIPS to essential medicines in low and middle-income countries. Finally, we assess the extent to which the recommendations made by the Panel’s final report comply with these duties and accordingly with the right to health.
Highlights
Reducing Policy Incoherence between Human Rights and TradeAccess to affordable medicine is the lynchpin to realizing a range of human rights, public health and development imperatives
This is why essential medicines are understood as a core obligation of states under the right to health [1]; why medicines are recognized as a fundamental building block of health care systems capable of providing universal health coverage [2]; and why medicines features prominently within Sustainable Development Goal (SDG) 3 on health [3]
What are the concrete actions that should flow from core obligations to provide essential medicines and duties towards medicines more generally? The analysis above outlines at least two clear duties that could have underpinned the HLP’s considerations: (1) the duty to prevent unreasonably high costs for medicines from denying large segments of the population their rights to health; and (2) the core obligation to provide essential and other medicines. We suggest that these two duties provide the foundation for at least three primary areas of action: (1) consistent implementation of human rights impact assessment (HRIA) before adopting law and policies affecting access to medicines; (2) institutionalizing Trade-Related Intellectual Property Rights (TRIPS) flexibilities in law and policy; and (3) making permanent the waiver of TRIPS for least developed countries (LDC) and waiving TRIPS for essential medicines in low and middle-income countries
Summary
Access to affordable medicine is the lynchpin to realizing a range of human rights, public health and development imperatives. 156), the policy space that countries have to provide affordable medicines is bound sometimes wholesale by trade rules around intellectual property rights. This “policy incoherence” between human rights and intellectual property rights is a primary motivator for the establishment by United Nations Secretary-General Ban Ki-moon of the High-Level. The panel was given the mandate “to review and assess proposals and recommend solutions to remedying the policy incoherence between the justifiable rights of inventors, international human rights law, trade rules and public health in the context of health technologies that is impeding access and the right to health for millions” We close with an assessment of how the HLP report’s recommendations responded to this area of legal conflict in light of the right to health duties identified in this paper
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