Elsevier

The Lancet

Volume 368, Issue 9532, 22–28 July 2006, Pages 305-311
The Lancet

Articles
Is access to essential medicines as part of the fulfilment of the right to health enforceable through the courts?

https://doi.org/10.1016/S0140-6736(06)69076-4Get rights and content

Summary

Background

Most countries in the world have become States parties to one or more international human rights treaties, thus creating an obligation by the State to its people towards the realisation of the right to health, which includes access to essential medicines. But whether such access is enforceable in practice is unknown.

Methods

We did a systematic search to identify completed court cases in low-income and middle-income countries in which individuals or groups had claimed access to essential medicines with reference to the right to health in general, or to specific human rights treaties ratified by the government. We identified and analysed 71 court cases from 12 countries in which access to essential medicines was claimed with reference to the right to health.

Findings

In 59 cases, access to essential medicines as part of the fulfilment of the right to health could indeed be enforced through the courts, with most coming from Central and Latin America. Success was mainly linked to constitutional provisions on the right to health, supported by the human rights treaties. Other success factors were a link between the right to health and the right to life, and support by public-interest non-government organisations. Individual cases have generated entitlements across a population group, the right to health was not restricted by limitations in social security coverage, and government policies have successfully been challenged in court.

Interpretation

Skilful litigation can help to ensure that governments fulfil their constitutional and international treaty obligations. Such assurances are especially valuable in countries in which social security systems are still being developed. However, redress mechanisms through the courts should be used as a last resort. Rather, policymakers should ensure that human rights standards guide their health policies and programmes from the outset.

Introduction

Issues of human rights affect the relations between the State and the individual; they generate State obligations and individual entitlements. The promotion of human rights is one of the main purposes of the UN. For example, the WHO Constitution of 1946 says 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.” Article 25.1 of the Universal Declaration of Human Rights (1948) says 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”.

The right to health is also recognised in many other international1, 2, 3 and regional4, 5, 6 treaties, especially the International Covenant on Economic, Social and Cultural Rights (ICESCR) of 1966, an international treaty that is binding on States parties (States that have acceded to, signed, or ratified an international treaty) and provides the foundation for legal obligations under the right to health. In the ICESCR, States parties “recognize the right of everyone to the enjoyment of the highest attainable standard of physical and mental health”. In Article 12.2, the treaty lists several steps to be taken by States parties to achieve the full realisation of this right, including the right to: maternal, child, and reproductive health; healthy natural and workplace environments; prevention, treatment, and control of disease; and “the creation of conditions which would assure to all medical service and medical attention in the event of sickness”. Article 12 thus constitutes an important standard against which to assess the laws, policies, and practices of States parties.

The implementation of the ICESCR is monitored by the Committee on Economic, Social and Cultural Rights, which regularly issues authoritative but non-binding General Comments, which are adopted to assist States in their interpretation of the ICESCR. In General Comment 3, the Committee confirms that States parties have a core obligation to ensure the satisfaction of minimum essential levels of each of the rights outlined in the ICESCR, including essential primary care as described in the Alma-Ata Declaration, which includes the provision of essential medicines.

General Comment 14 of May, 2000, is particularly relevant to access to essential medicines. Here the Committee states that the right to medical services in Article 12.2 (d) of the ICESCR includes the provision of essential drugs “as defined by the WHO Action Programme on Essential Drugs”.7 According to the latest WHO definition, essential medicines are: “those that satisfy the priority health care needs of the population. Essential medicines are selected with due regard to disease prevalence, evidence on efficacy and safety, and comparative cost-effectiveness. Essential medicines are intended to be available within the context of functioning health systems at all times, in adequate amounts, in the appropriate dosage forms, with assured quality, and at a price the individual and the community can afford. The implementation of the concept of essential medicines is intended to be flexible and adaptable to many different situations; exactly which medicines are regarded as essential remains a national responsibility”.8

Although the ICESCR acknowledges the limits of available resources and provides for progressive (as opposed to immediate) realisation of the right to medical services, States parties have an immediate obligation to take deliberate and concrete steps towards the full realisation of Article 12, and to guarantee that the right to health will be exercised without discrimination of any kind.

Most countries in the world have acceded to or ratified at least one worldwide or regional covenant or treaty confirming the right to health. For example, more than 150 countries have become State parties to the ICESCR, and 83 have signed regional treaties.9 More than 100 countries have incorporated the right to health in their national constitution.

Some might argue that social, cultural, and economic rights are not enforceable through the courts, and some national courts have indeed been reluctant to intervene in resource allocation decisions of governments. Yet accountability and the possibility of redress are essential components of the rights-based approach. Being a State party to a human rights treaty that is internationally binding creates certain State obligations to its people. Do governments live up to these binding obligations in practice? If not, do individuals manage to obtain their rights? And if they do, which factors have contributed to their success?

This study analyses the question of whether access to essential medicines as part of the fulfilment of the right to health can be enforced through national courts (is justiciable) in low-income and middle-income countries. The study is part of a general attempt by WHO to integrate the promotion and protection of human rights into national policies and to support further mainstreaming of human rights throughout the UN.

Section snippets

Methods

A systematic search was done to identify completed court cases in low-income and middle-income countries in which individuals or groups had claimed access to essential medicines with reference to the right to health in general, or to specific human rights treaties ratified by the government. Six different search methods were used. A general boolean search of the internet was done with variations in the keywords that were linked together (such as human rights, essential drugs, access to

Results

The systematic search identified 73 cases from 12 low-income and middle-income countries. In five cases, only a brief summary of the judgment was available. In three of these cases, information was still sufficient to include them in the analysis. The full analysis is therefore based on 71 cases, of which 59 were won and 12 were lost (table 1). Of the cases included in the analysis, 14 successful and two unsuccessful cases specifically referred to one or more international human rights treaties

Discussion

This study has shown that access to essential medicines as part of the fulfilment of the right to health could indeed be enforced through the courts in several low-income and middle-income countries, with most of the experience to date coming from Central and Latin America. The most important success factor has been that certain rights are enshrined in the national constitution. Key constitutional provisions seem to be those on the right to health and on defined State obligations with regard to

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