[Ip-health] PIJIP Blogs: The African Commission, and Access to Medicines and Human Rights in Africa

[Mike Palmedo]

http://www.wcl.american.edu/pijip/go/lyznik09152008

The African Commission and Access to Medicines and Human Rights in Africa

Karolina Lyznik
PIJIP Blogs
September 15, 2008

According to a 2006 report by the Special Rapporteur on the Right to
Health[1], Paul Hunt, states have an obligation under the International
Covenant on Economic, Social and Cultural Rights (=93ICESCR=94)[2] to
respect, protect, and fulfill the right to health. As interpreted by the
Committee on Economic, Social and Cultural Rights in General Comment 14
[3], fulfillment of the right to health includes ensuring that all
health services, goods, and facilities are:

* Available,
* Accessible
* Acceptable,
* And, of good quality

Particularly with respect to accessibility, goods and services must be
available in all parts of the country (physical accessibility), must be
affordable (economic accessibility), and must be administered without
discrimination.

The majority of African states are parties to the ICESCR and Article 16
of the African Charter also enshrines the right to health, and yet this
right, particularly with regards to accessibility, is severely neglected
by African governments. Many governments cite IP restrictions as the
source of the problem, claiming that they limit availability and thereby
hinder accessibility, but in many cases these governments have neglected
to incorporate the flexibilities provided in TRIPS (e.g. compulsory
licensing, parallel importation, Least-Developed Country transition
periods, etc.) into national legislation. Moreover, the ICESCR allows
for progressive realization, meaning that in most categories of
assistance, what is required is the highest attainable level of health
for the country (i.e. the State should be better off today than it was
five years ago), and compliance with ICESCR is dependent on resource
availability, meaning that developed countries are held to a higher
standard than developing countries. (However, progressive realization
does not apply in two areas: discrimination and access to essential
medicines. The availability and accessibility of essential medicines is
subject to immediate realization under the ICESCR and health care must
be provided to all in a state without discrimination.)

The African Commission on Human and People=92s Rights (=93the African
Commission=94) was created under the African Charter and given a
promotional and protective mandate over human and people=92s rights in
Africa. Pursuant to these mandates, the African Commission may require
States to report on their compliance with obligations under the African
Charter, which include upholding the right to health as provided for in
the African Charter. Furthermore, the African Commission can conduct its
own fact-finding missions to determine if obligations are being met and
may conduct on-site visits upon receiving complaints from other states
or non-state actors.

Acting on the basis of these mandates, the HIV Clinical Group at
Pretoria University, in conjunction with PIJIP and WCL clinic students,
is working to prepare and garner widespread NGO support for a submission
before the African Commission during its meeting in Abuja, Nigeria from
the 10th to the 24th of November. This submission will call upon the
African Commission to adopt an interpretation of the right to health
under the African Charter, which mirrors the one provided by General
Comment 14 to the ICESCR, specifically recognizing that access to
medicines is a crucial component to the right to health. Furthermore,
upon recognizing that the right to health includes the components of
accessibility, availability, acceptability, and good quality of
medicines, the submission will call upon the African Commission, in the
future, to use these standards as a means to uniformly monitor state=92s
compliance with the right to health. For more information on this
project and the right to health as it applies to access to medicines in
general, see: Human Rights and Access to Medicine Legal Initiative:
http://www.wcl.american.edu/pijip/go/humanrights.

FOOTNOTES:
1
http://www.wcl.american.edu/pijip/download.cfm?downloadfile=3D66680468-F140=
-D281-565659D9299DA8B8&typename=3DdmFile&fieldname=3Dfilename

2
http://www.unhchr.ch/html/menu3/b/a_cescr.htm

3
http://www.wcl.american.edu/pijip/download.cfm?downloadfile=3D666D9535-A873=
-29BB-C945E8C2E5DF5D55&typename=3DdmFile&fieldname=3Dfilename



--
Mike Palmedo
Research Coordinator
Program on Information Justice and Intellectual Property
American University, Washington College of Law
4910 Massachutsetts Ave., NW Washington, DC 20016
T - 202-274-4442 | F 202-274-0659
mpalmedo@wcl.american.edu