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Human Rights Responsibilities of Pharmaceutical Companies in Relation to Access to Medicines

Published online by Cambridge University Press:  01 January 2021

Joo-Young Lee  and
Paul Hunt
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Extract

The Constitution of the World Health Organization (WHO) affirms that “the enjoyment of the highest attainable standard of health is one of the fundamental rights of every human being.” The Universal Declaration of Human Rights lays the foundations for the international framework for the right to health. This human right is now codified in numerous national constitutions, as well as legally binding international human rights treaties, such as the International Covenant on Economic, Social and Cultural Rights.

Although medical care and access to medicines are vital features of the right to health, almost two billion people lack access to essential medicines, leading to immense avoidable suffering. Improving access to essential medicines could save 10 million lives each year, four million of them in Africa and South-East Asia alone. Gross inequity is a shocking feature of the world pharmaceutical situation.

Type
Symposium
Information
Journal of Law, Medicine & Ethics , Volume 40 , Issue 2 , Summer 2012 , pp. 220 - 233
Copyright
Copyright © American Society of Law, Medicine and Ethics 2012

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References

The right's full formulation is “the right of everyone to the highest attainable standard of physical and mental health,” from article 12, International Covenant on Economic, Social and Cultural Rights. As shorthand, we adopt either “the right to the highest attainable standard of health” or “the right to health.”Google Scholar
For an introduction to the growing literature, see Clapham, A. Robinson, M., Realising the Right to Health (Geneva: Swiss Human Rights Book Series, Rufer & Rub, 2008).Google Scholar
Department for International Development (U.K.), Increasing Access to Essential Medicines in the Developing World: U.K. Government Policy and Plans, June 2004, at 8.Google Scholar
See the Special Rapporteur on the Right to the Highest Attainable Standard of Health, UN Doc. A/61/338, September 13, 2006.Google Scholar
Unless otherwise indicated, references in this chapter to the UN Special Rapporteur on the right to the highest attainable standard of health are to Paul Hunt, the first person appointed to this mandate. One of the authors of this article, he held the post between 2002–2008.Google Scholar
For example, see the Special Rapporteur on the Right to the Highest Attainable Standard of Health, supra note 4 (human right to medicines); UN Doc. E/CN.4/2006/48/Add.2 (Uganda), January 19, 2006; E/CN.4/2005/51/Add.3 (Peru), February 4, 2005; and E/CN.4/2004/49/Add.1 (World Trade Organization), March 1, 2004.Google Scholar
UN Millennium Development Goals, Target 8(e).Google Scholar
Committee on Economic, Social and Cultural Rights, General Comment 14: The Right to the Highest Attainable Standard of Physical and Mental Health, UN Doc. E/C.12/2000/4, at para. 42.Google Scholar
Special Representative of the Secretary-General on the Issue of Human Rights and Transnational Corporations and other Business Enterprises, Ruggie, John, “Protect, Respect and Remedy: A Framework for Business and Human Rights,” A/HRC/8/5, April 7, 2008, at para. 60.Google Scholar
See supra note 4.Google Scholar
Special Rapporteur on the Right to the Highest Attainable Standard of Health, UN Doc. A/63/263, August 11, 2008; and R. Khosla and P. Hunt, Guidelines for Pharmaceutical Companies in Relation to Access to Medicines: The Sexual and Reproductive Rights Context (Colchester: University of Essex, 2009).Google Scholar
Special Rapporteur on the Right to the Highest Attainable Standard of Health, Mission to GlaxoSmithKlein, UN Doc. A/HRC/11/12/Add.2, May 5, 2009.Google Scholar
For a review of these debates and initiatives, see Clapham, A., Human Rights Obligations of Non-State Actors (New York: Oxford University Press, 2006).CrossRefGoogle Scholar
See supra note 4, at paras 92–93.Google Scholar
Sections 3 and 4 have extensively drawn upon Hunt, P. Khosla, R., “Holding Pharmaceutical Companies to Account: A UN Special Rapporteur's Mission to GlaxoSmithKline,” in Gilbert, G. et al. , eds., The Delivery of Human Rights (Oxon and New York: Routledge, 2011): At 39–67; and Hunt, P. Khosla, R., “Human Rights Responsibilities of Pharmaceutical Companies in relation to Access to Medicines,” in Forman, L. et al. , eds., Access to Medicines as a Human Right: What Implications for the Pharmaceutical Industry (Toronto: University of Toronto Press, 2012): At 25–45.Google Scholar
The mandate of the Special Representative was created by the UN Commission on Human Rights in its resolution 2005/69 (April 20, 2005) and John Ruggie served the mandate from July 2005 to June 2011.Google Scholar
See supra note 9, at para. 3.Google Scholar
See supra note 9.Google Scholar
Human Rights Council Resolution 17/4, “Human Rights and Transnational Corporations and Other Business Enterprises,” UN Doc. A/HRC/RES/17/4, June 16, 2011; The Guiding Principles on Business and Human Rights are annexed to the Report of the Special Representative of the Secretary-General on the Issue of Human Rights and Transnational Corporations and Other Business Enterprises, John Ruggie, UN Doc. A/HRC/17/31, March 21, 2011.Google Scholar
See supra note 9, at para. 24.Google Scholar
Id., at para. 55.Google Scholar
Id., at para. 54.Google Scholar
Id.Google Scholar
Report of the Special Representative, “Business and Human Rights: Further Steps toward the Operationalization of the ‘Protect, Respect and Remedy’ Framework,” UN Doc. A/HRC/14/27, April 9, 2010, at para. 55.Google Scholar
See supra note 9, at para. 25.Google Scholar
Id., at para. 24.Google Scholar
See supra note 9, at para. 55.Google Scholar
See Human Rights Council, Resolution 8/7, Mandate of the Special Representative of the Secretary-General on the Issue of Human Rights and Transnational Corporations and other Business Enterprises, adopted without a vote on June 18, 2008.Google Scholar
See the Guiding Principles, supra note 19, at para. 11.Google Scholar
Id., at para. 15.Google Scholar
Id., at para. 18.Google Scholar
Id., at para. 19.Google Scholar
Id., at para. 20.Google Scholar
Id., at para. 21.Google Scholar
Special Representative of the Secretary-General on the issue of human rights and transnational corporations and other business enterprises, John Ruggie, Business and human rights: Towards operationalizing the “protect, respect and remedy” framework, UN Doc. A/HRC/11/13, April 22, 2009, at para. 64.Google Scholar
Id., at para. 64.Google Scholar
Institute for Human Rights and Business, Setting Boundaries: Clarifying the Scope and Content of the Corporate Responsibility to Respect Human Rights, Submission to the UN Special Representative on Business and Human Rights, available at <http://www.ihrb.org/pdf/Setting_Boundaries-Clarifying_Scope_and_Content_of_Corporate_Responsibility_to_Respect_Human_Rights.pdf> (last visited May 16, 2012).+(last+visited+May+16,+2012).>Google Scholar
Id., at 5.Google Scholar
Id., at 9.Google Scholar
Id., at 5, 6, 9.Google Scholar
Id., at 8.Google Scholar
See supra note 24, at para. 63.Google Scholar
Id., at para. 64.Google Scholar
See Human Rights Council Resolution 17/4, supra note 19. For the work of the working group on Human Rights and Business, see <http://www.ohchr.org/EN/Issues/Business/Pages/WGHRandtransnationalcorporationsandotherbusiness.aspx> (last visited May 16, 2012).+(last+visited+May+16,+2012).>Google Scholar
See supra note 9, at para. 55.Google Scholar
See supra note 35.Google Scholar
See supra note 37, at 5.Google Scholar
See supra note 9, at para. 60.Google Scholar
Id., at para. 54.Google Scholar
See supra note 8; numerous reports of the Special Rapporteur on the right to the highest attainable standard of health have sought to apply the right-to-health analytical framework to specific health issues (e.g., E/CN.4/2005/51 on mental disability) and countries (e.g., A/HRC/4/28/Add.2 on Sweden).Google Scholar
Pharmaceutical companies have responsibilities arising from other human rights, such as the labour rights of their employees, but this article focuses on pharmaceutical companies' right to health responsibilities.Google Scholar
See supra note 9, at paras. 60–62.Google Scholar
See Special Rapporteur on the Right to the Highest Attainable Standard of Health, Mission to Uganda, UN Doc. E/CN.4/2006/48/Add.2, January 19, 2006; Hunt, P. Steward, R. Mesquita, J. Oldring, L., Neglected Diseases: A Human Rights Analysis, WHO-TDR Special Topic 6, 2006; and Molyneux, D. H., “Neglected Tropical Diseases — Beyond the Tipping Point?” The Lancet 375, no. 9708 (January 2, 2010): 3–4, at 3.Google Scholar
WHO, Good Manufacturing Practices for Pharmaceutical Products: Main Principles, WHO Technical Report Series, No. 961, 2011.Google Scholar
See Potts, H., Accountability and the Right to the Highest Attainable Standard of Health (Colchester: University of Essex, 2008); generally, Health and Human Rights Journal 10, no. 2 (2008), with particular reference to Yamin, A. E., “Beyond Compassion: The Central Role of Accountability in Applying a Human Rights Framework to Health,” at 1–20 and Freedman, L., “Human Rights, Constructive Accountability and Maternal Mortality in the Dominican Republic: A Commentary,” International Journal of Gynaecology and Obstetrics 82, no. 1 (2003): 111–114.Google Scholar
GSK, Corporate Responsibility Report, 2007, especially chapter 5.Google Scholar
See Access to Medicine Index, available at <http://www.accesstomedicineindex.org/> (last visited May 16, 2012).+(last+visited+May+16,+2012).>Google Scholar
UN High Commissioner for Human Rights, The Impact of the Agreement on Trade-Related Aspects of Intellectual Property Rights on Human Rights, UN Doc. E/CN.4/Sub.2/2001/13, June 27, 2001, at paras. 42–43; The Special Rapporteur on the Right to the Highest Attainable Standard of Health, Mission to the World Trade Organization, UN Doc. E/CN.4/2004/49/Add.1, 1 March 2004, at para. 43; and The Special Rapporteur on the Right to the Highest Attainable Standard of Health, Access to Medicines and Intellectual Property Rights, UN Doc. A/HRC/11/12, March 31, 2009, at para. 19.Google Scholar
WHO Commission on Intellectual Property Rights, Innovation and Public Health, Public Health, Innovation and Intellectual Property, Geneva, 2006, at 20; and Commission on Intellectual Property (UK), Integrating Intellectual Property Rights and Development, London, 2002, at 34.Google Scholar
Pharmaceutical Shareowners Group, The Public Health Crisis in Emerging Markets, London, 2004.Google Scholar
See supra note 9, at para. 54.Google Scholar
See the Guiding Principles, supra note 19, at para. 11.Google Scholar
There are ways of ensuring that only social group E accesses these not-for-profit medicines, e.g., by only making these medicines available via designated health clinics in the public health system unfrequented by social group A.Google Scholar
Special Rapporteur on the Right to the Highest Attainable Standard of Health, “Mission to the World Bank, the International Monetary Fund, and Uganda,” UN Doc. A/HRC/7/11/Add.2, March 5, 2008, Mesquita, J. Hunt, P., International Assistance and Cooperation in Sexual and Reproductive Health: A Human Rights Responsibility for Donors (Colchester: University of Essex, 2008); and Mesquita, J. Hunt, P. Khosla, R., “The Human Rights Responsibility of International Assistance and Cooperation in Health,” in Gibney, M. Skogly, S., eds., Universal Human Rights and Extraterritorial Obligations (Philadelphia: University of Pennsylvania Press, 2010): 104–129.Google Scholar
See supra note 12; and Hunt, P. Khosla, R., “Holding Pharmaceutical Companies to Account: A UN Special Rapporteur's Mission to GlaxoSmithKline,” in Gilbert, G. et al. , eds., The Delivery of Human Rights (Oxon and New York: Routledge, 2011): At 39–67.Google Scholar
See supra note 56, at 49–50.Google Scholar
Oxfam International, Investing for Life: Meeting Poor People's Needs for Access to Medicines through Responsible Business Practices, Oxford, 2007.Google Scholar
Innovest Strategic Value Advisors, Access to Medicine Index 2008 (Haarlem: Access to Medicine Foundation, 2008); and RiskMetrics Group, Access to Medicine Index 2010 (Haarlem, The Netherlands: Access to Medicine Foundation, 2010).Google Scholar
GSK, Annual Report, 2003.Google Scholar
GSK, GSK Statement on Human Rights, 2007, available at <http://www.gsk.com/responsibility/reports-resources.htm> (last visited May 16, 2012).+(last+visited+May+16,+2012).>Google Scholar
See Special Rapporteur, supra note 11, at 18–19; and supra note 12, at para. 107.Google Scholar
Anand Grover orally presented the report following his appointment as Special Rapporteur in August 2008. In accordance with protocol, Paul Hunt stepped down as Rapporter on completion of his second three-year term in July 2008.Google Scholar
GlaxoSmithKline Statement in Response to Paul Hunt's Report on GSK, June 2009, on file with authors.Google Scholar
The Lancet, “Editorial: Right-to-Health Responsibilities of Pharmaceutical Companies,” The Lancet 373, no. 9680 (June 13, 2009): At 1998.Google Scholar
On file with authors.Google Scholar
See Special Rapporteur, supra note 11, at 18–19; see supra note 12, at paras. 30–33.Google Scholar
See Human Rights Council Resolution 17/4, supra note 19.Google Scholar
See <http://www.oecd.org/document/28/0,3746,en_2649_34889_2397532_1_1_1_1,00.html> (last visited May 16, 2012).+(last+visited+May+16,+2012).>Google Scholar
Commission on Information and Accountability for Women's and Children's Health, Keeping Promises, Measuring Results, WHO, Geneva, 2011, at 9, available at <http://www.everywomaneverychild.org/images/content/files/accountability_commission/final_report/Final_EN_Web.pdf> (last visited May 16, 2012). (last visited May 16, 2012).' href=https://scholar.google.com/scholar?q=79+Commission+on+Information+and+Accountability+for+Women's+and+Children's+Health,+Keeping+Promises,+Measuring+Results,+WHO,+Geneva,+2011,+at+9,+available+at++(last+visited+May+16,+2012).>Google Scholar
See Every Woman, Every Child, available at <http://www.everywomaneverychild.org/resources/independent-expert-review-group> (last visited May 16, 2012).+(last+visited+May+16,+2012).>Google Scholar
See, for “non-legal” enforcement means, Reinisch, A., “The Changing International Legal Framework,” in Alston, P. ed., Non-State Actors and Human Rights (Oxford: Oxford University Press, 2005): 37–89, at 68.Google Scholar