Access to essential medicines as a Human Right

1. Access to essential medicines as a Human Right ICIUM-2, 30 March 2004 Hans V. Hogerzeil, MD, PhD, FRCP Edin Essential Drugs and Medicines Policy (EDM) World Health Organization

2. Human Rights • Human rights concern the relation the between state and the individual; • They lead to state obligations and individual entitlements • All human rights areinterdependent and interrelated. Health is a fundamental human right, indispensable for the exercise of other human rights • Freedom from discrimination underpins all human rights • Promotion of human rights is a principle purpose of the UN

3. First expression of the right to health:The WHO Constitution (1946) “The States parties to this Constitution declare, in conformity with the Charter of the United Nations, that the following principles are basic to the happiness, harmonious relations and security of all peoples. Health is a state of complete physical, mental and social well-being and not merely the absence of disease or infirmity. 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 (...)”

4. Universal Declaration of Human Rights (1948) Art.25.1 “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”

5. The right to health is also recognizedin numerous other instruments 1961 European Social Charter 1966 International Covenant on Economics, Social and Cultural Rights (most detailed; Article 12.1 and 12.2) 1978 Declaration of Alma Ata 1981 African Charter on Human and People’s Rights 1988 Additional Protocol to the American Convention on HRs in the Area of Economic, Social and Cultural Rights 1989 Convention on the Rights of the Child

6. International Covenant on Economics, Social and Cultural Rights (ratified by 147 countries) Article 12 recognizes the • “right of everyone to the enjoyment of the highest attainable standard of physical and mental health” Article 12.2 illustrates a number of • steps to be taken by States parties to achieve: • a. maternal, child and reproductive health • b. healthy natural and workplace environments • c. prevention, treatment and control of disease • d. health facilities, goods and services

7. Committee on Economic, Social and Cultural RightsGeneral Comment nr.14 (May 2000) Art.12.2.c: Right to prevention, treatment and control of diseases includes creation of a system of urgent medical care in case of accidents, epidemics; and disaster relief and humanitarian assistance Art 12.2.d: Right to health facilities, goods and services includes appropriate treatment of prevalent diseases, preferably at community level; and the provision of essential drugs as defined by the WHO Action Programme on Essential Drugs

8. Committee on Economic, Social and Cultural RightsGeneral Comment nr.14 (May 2000)State Party obligations Progressiverealization But: some obligations areimmediate: • Exercise right without discrimination (art.2.2) • Take steps toward the full realization of article 12 these steps must be deliberate, concrete and targeted towards full realization of the right to health (don’t go back!)

9. Committee on Economic, Social and Cultural RightsGeneral Comment nr.14 (May 2000)Violations • Adoption of retrogressive measures, repeal, suspension • Failure to take all steps to ensure the right to health; e.g. • failure to adopt or implement a national health policy designed to ensure the right to health for anyone • insufficient expenditure or misallocation of public resources • failure to monitor realization of the right to health in the country • failure to take measures to reduce inequitable distribution of health facilities, goods and services Important: distinguish inability from unwillingness of the State

10. Access to essential drugs as a Human Right:Where are we now? • Health is a human right (Univ.Decl.Hum.Rights). • The right to health care includes the right to emergency care and health facilities, goods and services (Covenant) • The right to facilities, good and services includes the provision of essential drugs as defined by WHO (GCom.14) • State parties are under immediate obligation to guarantee that the right to health care is exercised without discrimination, and that concrete steps are taken towards full realization, with emphasis on vulnerable and marginal groups

11. So what?

12. Access to essential medicines as a Human Right:What does it mean in practice? 1. Rights-based approach incorporated in medicines programmes 2. Definition of minimum needs of essential medicines 3. Verification of state obligations under HR treaties as part of 5-yearly country reports to HR Commission (WHO access indicators) 4. Support individuals and NGOs in claiming their rights • List of State Parties, for public pressure • Promote List of Essential Medicines to define State obligations • Promote simple monitoring tools for access and pricing • Publish successful litigation cases

13. National recognition of a Right to Health Source: Eleanor D. Kinney: The International Human Right to Health: What does this mean for our nation and world? Indiana Law Review, 200; 34: 1465. Quoted in: 25 Questions and answers on health and human rights, WHO, 2002 Source:

14. Ruling for Accesswith: Melanie Samson, Jaume Vidal Casanova (WHO/EDM interns) Objective To identify and analyze court cases from developing countries, in which individuals/groups have sued Governmental institutions, claiming access to essential medicines on the basis of human right treaties signed by the State, and have won their case. Results Twenty cases • 7 supported by NGOs • 13 refer to HIV/AIDS • others to leukemia, renal transplant medicines, multiple sclerosis, diabetes

15. Successful litigation on access to essential medicines, as part of the fulfilment of the Right to Health Country cases over time

16. Main findings in 20 successful cases • Most rulings concerned life-saving medicines (17) • International treaties create State obligations towards the individual (8 cases in 5 countries) • Individual cases can create collective rights (7) • Right to Health not restricted by limits in social security (6) • Government policies can be challenged in court (2) • State has special obligations towards poor and disadvantaged (2)

17. Success factors in 20 cases • Constitutional provisions: International treaties enjoy constitutional rank (7/7), Right to Health mentioned (6/7) • Right to Health linked to Right to Life (13/20) • Legal, financial and moral support byNGOs (8/20) • Acquired rights, non-interruption of treatment when social security rights are time-limited or exhausted (4/20) • Non-discrimination leading to right to equitable availability of medical care (3/20) and State obligations to the poor (2/20)

18. Recommendations Govt’s: Ensure constitutional provisions on the Right to Health, Right to Life, constitutional rank for international treaties UN: Use constitutional provisions as indicator for Government commitment when reporting on Right to Health WHO: Make detailed analysis of constitutions; disseminate information on successful litigation; empower NGOs NGOs: Campaign for constitutional provisions; plan and support targeted litigation cases

19. Recommendations and YOU ?

20. Work towards a better world and Demand good governance

21. World Health Organisation Department of Essential Drugs and Medicines Policy 1211 Geneva, Switzerland Fax 41-22-7914167 Web Site: http://www.who.medicines/ Documentation Centre: darec@who.int WHO