The practical meaning of the human right to the highest attainable standard of health has evolved since its first articulation in the Constitution of the World Health Organisation of 1946 and later in the 1966 International Covenant on Economic, Social and Cultural Rights (ICESCR). The most authoritative interpretation of the right to health is found in General Comment 14 (2000), where it is stipulated that healthcare services, goods, and facilities must be available, accessible and affordable to all, and of good quality. Furthermore, it contains both freedoms and entitlements, among which the right to access essential medicines.
In the following infographic, we highlight the evolution in our understanding of what is needed to ensure the realisation of the right to health:
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Under human rights law, the State has an obligation to prevent third parties, such as private corporations, from interfering with the right to health (known as the obligation to protect). This became particularly relevant in 2001, with the adoption of the Agreement on Trade-Related Aspects of Intellectual Property Rights (TRIPS) and public health. Patents can prevent access to medicines as they exclude others from using or selling the patented product for a limited period, thus preventing generic competition and allowing companies to keep prices high, to the detriment of lower-income countries. In the face of TRIPS, it became more difficult for States to protect the right to health from the actions of private pharmaceutical companies.
With this realisation, the United Nations Guiding Principles (UNGPs) were endorsed by the UN General Assembly in 2010. They establish that businesses, including pharma, have human rights responsibilities, which are non-binding but establish a clear social responsibility for corporations, and recognise the impact that these entities can have on the realisation of human rights. States are free to establish legally binding mechanisms to enforce these responsibilities in domestic law.
However, it has become clear today that non-binding responsibilities are not enough to ensure that pharmaceutical companies respect the right to health and access to medicines. In June 2022, the Pharmaceutical Accountability Foundation (PAF) assessed the behaviour of 26 pharmaceutical companies producing Covid-19 vaccines or therapeutics against human rights principles during the pandemic. 19 out of 26 companies scored poorly on the Fair Pharma Scorecard, reflecting a generalised lack of compliance with human rights principles.
In this infographic, the Pharmaceutical Accountability Foundation shows what can be done to ensure the realisation of the human right to the highest attainable standard of health and access to medicines. Action is needed at different levels; we need to build on existing initiatives but also propose new ones. Monitoring and evaluation such as the Fair Pharma Scorecard are good starting points for establishing priority areas where improvement needs to be made. Due diligence allows for preempting and mitigating human rights risks, but should be made mandatory in order to be effective. Finally, new legislative initiatives are needed, such as a duty of care for pharmaceutical companies, to truly create system change and ensure that the pharmaceutical system protects the human right to health and access to medicines.