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UN Human Rights Council Takes First Step Toward Prescribing Access to Medicines


by Jim Kelly

Wednesday, October 7, 2009

 Repeating a process that was used a decade ago to invent a human right to adequate food, the United Nations Human Rights Council (HRC), on the last day of its recent Twelfth Session, adopted a resolution calling for an expert consultation to exchange views on the human rights considerations related to the realization of a heretofore non-existent human right of access to medicines.  If history is any guide, the United Nations system will use the expert consultation as a springboard to creating and implementing a right of access to medicines that will jeopardize both the private property rights of multi-national pharmaceutical companies and the incentives to produce new drug treatments for curing life-threatening diseases.

As a result of recent efforts by Dutch authorities to prevent the shipment of drugs between India and Brazil that may have violated existing patent rights and posed a health threat to unsuspecting users, at the Twelfth Session of the HRC, Brazil introduced resolution A/HRC/12/L.23 (“Resolution”). As adopted by oral vote with a few changes offered by the United States delegation, the Resolution calls for an expert consultation “to exchange views on the human rights considerations related to the realization of access to medicine as one of the fundamental elements to achieve progressively the full realization of the right of everyone to the enjoyment of the highest ascertainable standard of physical and mental health.” Participation in the expert consultation will be open to government officials, regional and international organizations, and relevant United Nations bodies and civil society representatives.  The Resolution invites the United Nations Special Rapporteur on the right to health (the “Special Rapporteur”) to present a summary of the discussion of the expert consultation to the HRC.  As was the case with the “right to adequate food,” this is likely the first step toward securing formal recognition in international law of a right of access to medicines, albeit through non-democratic means.

At the time the right to health (officially titled the “right of everyone to the enjoyment of the highest attainable standard of physical and mental health”) was adopted as Article 12 of the International Covenant on Economic, Social and Cultural Rights (ICESCR), no State Party to the Covenant could have imagined the lengths to which the United Nations system would go in relying on the various articles of the Covenant to invent human rights out of whole cloth.  For instance, in 2000, the  Committee on Economic, Social and Cultural Rights (the “Committee”) published General Comment 14 providing the substantive content of the right to the highest ascertainable standard of health; however, there are only a few limited references to the need for access to essential medicines.  Thus, as has been the case with other “emerging” human rights, advocates for a right of access to medicines view the convening of an expert consultation on a right of access to medicines as an important first step in developing an international norm in that regard.

This was the approach taken in developing a right to adequate food.  Under Article 11 of the ICESCR, the States Parties “recognize the right of everyone to an adequate standard of living for himself and his family, including adequate food, clothing and housing, and to the continuous improvement of living conditions.”  From this general statement and other limited sentences in Article 11 regarding the need to improve food production, conservation, and distribution, to disseminate knowledge about nutrition, and the need for efficient agrarian methods, the United Nations system has developed a right to adequate food that, in ten short years, is used to monitor, evaluate, and criticize national food policies and programs.  Two expert consultations convened by the UN High Commissioner for Human Rights in the late 1990s provided the foundation for further development of the right to adequate food.  Based in part on the outcomes from these expert consultations, in 1999, the Committee published General Comment 12, which introduces and explains the basic premises of the right to adequate food; explains the normative content of Article 11; explains the obligations and violations arising from the right to adequate food; prescribes steps for implementation of the right at the national level; and sets forth the international obligations created under Article 11.  In 2005, the Food and Agricultural Organization of the United Nations adopted Voluntary Guidelines to support the progressive realization of the right to adequate food in the context of national food security (the “Guidelines”).  The Committee uses General Comment 12 and the Guidelines to determine the degree to which national governments are complying with the right to adequate food.

Most likely, in a similar fashion, the Committee will use the summary of findings from the upcoming expert consultation on the right of access to medicines as the basis for a General Comment explaining the substance of the new right.  As author of the summary of conclusions that are reached during the expert consultation, the Special Rapporteur is in a position to influence the work of the consultation.  On August 11, 2008, the office of the Special Rapporteur published Human Rights Guidelines for Pharmaceutical Companies in relation to Access to Medicines.  Thus, it appears that the Special Rapporteur is predisposed toward institutionalizing a human right of access to medicines.

It is also likely that the World Health Organization (WHO), the directing and coordinating authority for health within the United Nations system, will adopt voluntary guidelines to support the progressive realization of the right of access to medicines in the context of national health security.  After all, by its own admission, the WHO is responsible for providing leadership on global health matters; shaping the health research agenda; setting norms and standards; articulating evidence-based policy options; and providing technical support to countries and monitoring and assessing health trends.  A Department of Essential Medicines and Pharmaceutical Policies exists within WHO and, as evidenced by a 2002 presentation, its Director, Dr. Hans V. Hogerzeil, is a long-time advocate of a human right of access to medicines. 

Once a right of access to medicines is more fully developed, the Committee will be in a better position to monitor whether States Parties to the Covenant have taken necessary steps to provide access to medicines and, when appropriate, publicly criticize them for failing to dedicate sufficient public resources to providing access to medicines; encourage them to amend their national patent laws; encourage them to coerce pharmaceutical companies into providing free or low-cost access to medicines both nationally and abroad; or encourage them to insist that pharmaceutical companies openly share the benefits of their scientific and drug development research with others.  Such a result will have serious implications on national sovereignty, intellectual property rights, and the democratic process.

Jim Kelly is the President of Solidarity Center for Law and Justice, P.C., a public interest civil and human rights law firm based in Atlanta, Georgia. The opinions expressed herein are his own.