Trade policy
Not just a tragedy: Access to medication as a right under international law
Understanding access to medicine as a human rights issue
Authors:
Alicia Ely Yamin
Publisher:
Boston University International Law Journal, 2004
An estimated 29.4 million adults and children live with HIV and AIDS in Sub-Saharan Africa. Despite the fact that new combinations of antiretroviral therapy and other medications have enabled HIV-positive people in much of the developing world to live productive lives for many years, HIV and AIDS are now the largest contributor to mortality in several Sub-Saharan African countries.
This article, published by the Boston University International Law Journal, first sets out the principal norms under international human rights law that relate to access to medications. In Part II of this article, the author discusses how the right to life has increasingly been expansively interpreted to include conditions that promote and sustain life with dignity, as well as both the minimum core content and progressive realisation of the right to health. The author also sets out the connections between access to medications and the rights to an adequate standard of living, to work, and to education, as well as between access to medications and the right to enjoy the benefits of scientific progress and the disproportionate effects on children and marginalised groups of failure to ensure access to medications.
In Part III, the author examines the obligations that flow from those human rights provisions, which could provide the practical basis for policy-making and legislation. Primarily focusing on the right to health, as defined by the International Covenant on Economic, Social and Cultural Rights (ICESCR), the author analyses governmental obligations according to the tripartite framework of duties that is now well-established under international law: to respect, to protect, and to fulfill. The article further considers the obligations of third-party states and international institutions. Discussions and examples relating to HIV and AIDS are intended as illustrative; other life-threatening diseases and conditions pose many of the same rights issues but, due to the unparalleled scale of the HIV and AIDS pandemic, these simply have not received the same attention from national courts or from international bodies.
The author concludes that transforming our understanding of access to medications into a human rights issue leads us to ask not if life-saving medications can be provided to the millions of destitute sick people around the world, but how governments, third-party states and international organisations can facilitate that process and ensure that they are. Further still, the author concludes that human rights provides a set of principles according to which laws, policies and programmess can be evaluated and reformed.
[adapted from author]
