[Ip-health] The Lancet: Is access to essential medicines as part of the fulfilment of the right to health enforceable through the courts?

[Ira Glazer]

http://www.thelancet.com/journals/lancet/article/PIIS0140673606690764/abstract

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.