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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.


* Director Research and Publication ProBono India;

Research Associate, Gujarat National Law University, Gandhinagar, Gujarat.



1.     Office of the United Nations High Commissioner for Human Rights, World Health Organization, World Health Organization, Fact Sheet No. 3, available at:

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:

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