Access to medicines - a fundamental element of the right to health
Access to medicines - a fundamental element of the
right to health
By: Vaishali Singh, GNLU*
The right to health is
a fundamental part of our human rights and of our understanding of a life in
dignity. The realization of the right to health is also a fundamental goal of
State’s policies and programmes, regardless of their economic, social,
cultural, religious or political background. Internationally, it was first
articulated in the 1946 Constitution of the World Health Organization (WHO),
whose preamble defines health as “a state of complete physical, mental and
social well-being and not merely the absence of disease or infirmity”. The
preamble further states that “the enjoyment of the highest attainable standard
of health is one of the fundamental rights of every human being without
distinction of race, religion, political belief, economic or social condition.”
It has been affirmed
under Art 25.1 of Universal Declaration of Human Rights that “Everyone has the
right to a standard of living adequate for the health of himself and of his
family, including food, clothing, housing and medical care and necessary social
services.” This declaration was incorporated into a legally binding obligation
for state parties to the International Covenant on Economic, Social and
Cultural Rights (ICESCR) at Article 12, which recognizes; the States Parties to
the present Covenant recognize the right of everyone to the enjoyment of the
highest attainable standard of physical and mental health. The steps to be
taken by the States Parties to the present Covenant to achieve the full
realization of this right shall include those necessary for: (c) prevention,
treatment and control of epidemic, endemic, occupational and other diseases;
(d) creation of conditions which would assure to all medical service and
medical attention in the event of sickness. Article 2 of ICESCR further exhorts
governments “to take steps to the maximum available resources, with a view to
achieving the progressive realization of the rights,” including those
recognized in Article 12.
The right to health is
an inclusive right. We frequently associate the right to health with access to
health care and the building of hospitals. This is correct, but the right to
health extends further. It includes a wide range of factors that can help us
lead a healthy life. The Committee on Economic, Social and Cultural Rights, the
body responsible for monitoring the International Covenant on Economic, Social
and Cultural Rights, calls these the underlying determinants of health which
includes:
·
Safe drinking water and adequate
sanitation;
·
Safe food;
·
Adequate nutrition and housing;
·
Healthy working and environmental
conditions;
·
Health-related education and
information;
·
Gender equality.
Doha Ministerial
Conference in November 2001. Here where the members stressed the importance of
interpreting the TRIPS Agreement in such a way that it supports the public
health cause and then adopted as a separate declaration on TRIPS and Public Health.
A primary objective of the Doha Declaration was to create a process for member
countries with insufficient manufacturing capabilities to access generic
versions of patented drugs without violating TRIPS intellectual property
standards. This year marks the tenth anniversary of the process. Referred to as
the “Paragraph 6 compulsory licenses provisions,” this first and only amendment
to TRIPS was intended to ensure developing countries access to affordable
medicines. Over the past decade, these provisions have failed to provide the
gains initially anticipated.
Nevertheless, for
millions of people around the world, the full enjoyment of the right to health
remains an illusive goal, including due to the obstacles to access to medicines
of good quality, affordable and in a timely fashion, mostly in developing
countries. This constitutes a challenge to human dignity, the basis of all
human rights, including the rights to life, health and development of all
persons. From a human rights perspective, access to medicines is intrinsically
linked with the principles of equality and non-discrimination, transparency,
participation, and accountability. States are obliged to develop national
health legislation and policies and to strengthen their national health systems.
For this purpose, key issues related to access to medicines must be taken into
account such as: sustainable financing, availability and affordability of
essential medicines; price and quality control; dosage and efficacy of
medicines; procurement practices and procedures, supply chains, etc.
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* Director Research and
Publication ProBono India;
Research Associate, Gujarat National Law
University, Gandhinagar, Gujarat.
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References
1. Office of the United Nations High
Commissioner for Human Rights, World Health Organization, World Health
Organization, Fact Sheet No. 3, available at: http://www.ohchr.org/Documents/Publications/Factsheet31.pdf.
2. Stacey B. Lee, “Can incentives to
generic manufacturers save the Doha Declaration’s paragraph 6?” GJIL 1388
(2013).
3. Davina Ovett, “Intellectual Property and Human Rights: Is the Distinction Clear Now?”(3D Policy Brief 3, October 2006, Geneva), available at: http://www.3dthree.org/pdf_3D/3D_GC17_IPHR.pdf.
4. Lalitha N, “Indian Pharmaceutical Industry in WTO Regime: A SWOT Analysis”, 37 EPW 3542-3555 (2002).
5. WTO Ministerial Conference, Declaration on the TRIPS Agreement and Public Health (Nov. 20, 2001), (Wt/Min(01)/Dec/2), available at http://docsonline.wto.org/DDFDocuments/t/WT/min01/DEC2.doc.
