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Access to Medicines within the Right to Health: Echoes from the 2015 OHCHR Social Forum

17.3.2015

The UN Office of the High Commissioner for Human Rights just held the 2015 Social Forum, focused this year on access to medicines in the context of the right to health. Yet, the take-away you brought home from this 3-day-meeting clearly depends on who you are and above all, whose speech you remember.

Optimists would put forward the repeated calls and support from civil society and certain State representatives not to let trade and intellectual properties (IP) step over the right to health and access to medicines The proponents of the “half-full” glass would probably tell you that holding such a meeting is an achievement in itself: a recognition of access to medicines as a human right. They would highlight the words of Dr. Dainius Puras, UN Special Rapporteur on the Right to Health, on States’ responsibility to “respect, protect and fulfill the right to health, which includes access to medicines”, and its related components: ensuring access to existing medicines and supporting the development of new ones to respond to global health needs. Optimists would put forward the repeated calls and support from civil society and certain State representatives not to let trade and intellectual properties (IP) step over the right to health and access to medicines. Numerous voices re-stated countries’ right to fully use TRIPS flexibilities or even called for a complete change of TRIPS in harmony with the right to health. And indeed, the Social Forum allowed some clarifications to be made on this. As the ECOSOC explained over 10 years ago, IP rights cannot be put at the same level as human rights: human rights are “fundamental, …inherent to the human person as such”, while IP rights are “of a temporary nature, and can be revoked, licensed or assigned to someone else”. Certainly, the various projects and innovative approaches presented throughout the Forum to address different barriers to access to medicines may have made some of us optimistic about access to medicines being within our reach in the near future.

However, you would then have to look at the empty half of the glass. There you would see the ambiguous and cautious position of UN agencies, going no further than recognizing the possibility to use TRIPS flexibilities, and in many cases, without mentioning high-income countries. The words of Lisa Forman (University of Toronto) and Tenu Avafia (Global Commission on HIV and the Law) describing an “erosion of policy space to TRIPS” and TRIPS flexibilities as “anything but a poor solution”, would certainly temper your optimism. You would remember the interventions of certain Member States and speakers on the key role of strong IP, despite the countless testimonies and presentations from doctors, patient groups, civil society organizations and Ministries of health reminding all of us of the gap there is between words in international agreements and reality in the field.

After those three days, you would certainly agree that if the Social Forum was a symbolic step in the right direction, keeping business-as-usual won’t fulfill people’s right to health. Two billion people currently don’t have access to essential medicines and billions of others face unaffordable drug prices, rationing or absence of treatment. If barriers to access do exist down the supply chain or in healthcare, everything starts with research. We cannot continue with an R&D system that rigs the game from the start and leads to unavailable, unaffordable and/or inadequate treatments down the line. Change has to happen now. Our rights and our lives depend on it.