Assessing the UN High-Level Panel on Access to Medicines Report in Light of the Right to Health

Access to medicines is the lynchpin to realizing a range of human rights, public health and development imperatives. However, without strong policy action to increase access to affordable medicines, there is little hope of achieving the Sustainable Development Goals or of realizing the human right to health. Access to medicines is a fundamental element of the right to health, and the majority of states are bound by core obligations in this regard. Accordingly, states must ensure that this critical human rights, public health and development interest is appropriately prioritized against inadequate resource allocations and competing private or trade interests. This is an imperative which we have argued should have framed the deliberations of the UN High Level Panel on Access to Medicines, convened to propose solutions to the “policy incoherence” between international human rights, trade rules and public health that is impeding access to medicines and the right to health for millions. In this article we explore interpretations in international human rights law regarding state duties towards medicines that should have guided these deliberations, and which were presented by the first author in a submission to the panel. We argue that at least two clear right to health duties support the High Level Panel’s recommendations: (1) the duty to prevent unreasonably high costs for medicines from denying large segments of the population their rights to health; and (2) the core obligation to provide essential medicines. Consequently, we explore three areas of action implied by these duties: (1) consistent implementation of human rights impact assessment; (2) institutionalizing the Agreement on Trade-Related Intellectual Property Rights (TRIPS) flexibilities in law and policy; (3) making permanent the waiver of TRIPS for least developed countries (LDC), and waiving the application of TRIPS to essential medicines in low and middle-income countries. Finally, we assess the extent to which the recommendations made by the Panel’s final report comply with these duties and accordingly with the right to health.