Journal of Physical Medicine Rehabilitation & Disabilities Category: Medical Type: Review Article

The Position for Right to Health and Right of Access to Drug in International Law

Sorush Niknamian1*
1 Professor And Board Member Of Weston A Price Foundation, Washington DC, United States

*Corresponding Author(s):
Sorush Niknamian
Professor And Board Member Of Weston A Price Foundation, Washington DC, United States
Email:so.niknamian@gmail.com

Received Date: Apr 07, 2022
Accepted Date: Apr 14, 2022
Published Date: Apr 21, 2022

Abstract

The right of access drug has not been asserted as an independent right in international documents but this right has been addressed as one of the requisites for health in the field of right to health. Surely, right to physical and mental health has been described and recognized as a fundamental right in human rights relating international documents. Enjoyment of this right requires for exercising of other rights e.g. right of enjoyment of medical services, public health, adequate nutrition, healthy fresh water, and healthy environment and access to the necessary drugs; of course, this issue suggests the principle of interdependency of human rights to each other. In this paper importance of right to health, which is also embedded in right of access to drug, is reviewed in international and regional documents and Iranian law and also the efforts made for access to drug and the existing barriers against them have been inquired and some findings are presented at the end of this paper as conclusion.

Keywords

International document; Right of access to drug; Right to health; Right to public health

Definitions

Definition of right to health 

In interpretation of Article 121  of International Covenant on Economic, Social, and Cultural Rights called interpretation of General Comment No 14, the Committee of Economic, Social, and Cultural Rights (CESCR) has declared as follows: ‘Health is a basic right out of human rights and it may not be ignored in enforcement of other human rights. Any human has right of enjoyment from the highest level of health proportional to human dignity Similarly, right to health includes certain composition that can be legally enforced’ [3]. 

It is mentioned in a definition similar to the first definition that right to health is assumed as one of the basic human rights. This right is requisite for enforcement of other human rights. Right to health is one that each of human people may enjoy of it at the highest standards to provide the conditions of deserving life (CESCR, 2001). 

  1. [1]The States Parties to the present Covenant recognize the right of everyone to the enjoyment of the highest attainable standard of physical and mental health.
  2. The steps to be taken by the States Parties to the present Covenant to achieve the full realization of this right shall include those necessary for:

(a) The provision for the reduction of the stillbirth-rate and of infant mortality and for the healthy development of the child;

(b) The improvement of all aspects of environmental and industrial hygiene;

(c) The prevention, treatment and control of epidemic, endemic, occupational and other diseases;

(d) The creation of conditions which would assure to all medical service and medical attention in the event of sickness. 

As it mentioned above, one should distinguish between two concepts relating to health i.e. ‘right to health’ and ‘right to being healthy’. The right to health is not the same as right to being healthy. Being healthy denotes lack of diseases but right to health is beyond only the lack of disease and it includes various physical, mental and social dimensions. It is a right which requires for enjoyment of equal opportunities for all thereby they can enjoy the needed facilities, potentials, services, and conditions to realize this standard [4]. Being healthy is a minimal impression of right to health while ‘Right of enjoyment of the highest health standard’ is composed of latent presuppositions and requirements as the requisites for realizing of that right [5]. Right to health includes minimum threshold which should be realized and obligation of governments to these minimal standards is type of obligation to immediate result. One can refer to some of these basic minimal obligations such as codification of comprehensive plan for development and enhancement of right to health, guarantee for access to healthcare services for all and with no discrimination and fair distribution of services and facilities relating to health and treatment [6]. The right of health is a pervasive and universal right. As it is talked about health, the first and primary concept which may strike in mind is the access to healthcare and health and medical centers [7]. The public health system should be established in such a way that all the people can enjoy the equal opportunities to exploit from the highest level of health. Among these opportunities, one can imply access to essential drugs, basic healthcare services, prophylaxis, treatment and control of diseases, sexual health and pregnancy, childbirth and medical cares before and after them [8]. The right to health may be assumed as the connection link between various human generations because it guarantees for right of living in the first generation, and requires for healthcare and social security in the second generation and intervenes as holder of right of healthy environment in the third generation [9]. 

Definition of drug 

Although no comprehensive and inclusive definition has been proposed for drug similar to many other subjects, one can express a definition with respect to other viewpoints and perspectives. It is mentioned in a general definition that the drug is called to a small molecule which is led to molecular treatment in body after entering into human’s body [10]. It is said in translation of book of Summary of pharmacology (pharmacopeia) that drug is a substance which affects living system at chemical levels [11]. 

According to above-said meanings, drug includes all types of medicines even narcotics because after entering into the body narcotics cause the body to react to it. At the same time, terms used for drug comprise of limited or wide concepts. For example, term ‘drug’ has wider concept than term ‘medicine’ and it also includes narcotics as well [12]. 

It has been mentioned in a definition Dr. Mohasen Sadeghi assumed it as a comprehensive definition that drug is a natural or molecular substance derived from chemical or biologic materials or a composition of them that is used for tonic purposes or for diagnosis, cure, treatment, relief and or prevention from diseases or abnormal physical or spiritual conditions in living organisms including human, animal or plant [13]. Type of diseases has not been limited in above-said definition so it can cover diseases with restricted wideness level as well as pandemic, epidemic, and endemic diseases which spread at extensive level [12]. 

Paying attention to right to health and access to drug in human rights documents 

The human rights documents may be presented in three classes of international, regional, and national documents:

International Documents

UN Charter 

Clause (a) of Article 55 of UN Charter requires UN to upgrade higher life standards and Clause (b) of this article obliges UN to find solutions for international problems concerning health. Surely, creation of facility for access to drug to humans is one of the techniques for upgrading of higher life standards to which UN Charter has pay attention as international constitution. 

 WHO Charter 

World Health Organization (WHO) is the most relevant international organization to subject of health. The charter of this organization starts with these sentences: the countries as parties to this charter declare that in execution of UN Charter that follows basic principles for happiness, harmonic relations, and security of all people, term of health is a concept that includes physical and mental health and social well-being and does not only comprise of disease of infirmity. It is also mentioned in preamble of charter of WHO organization that ‘The enjoyment of the highest attainable standard of health is one of the fundamental rights of every human being without distinction of race, religion, and political belief, economic or social condition.’ It is implied under title of objective in the first part of WHO charter including first article of this charter that: ‘The goal of World Health Organization (that is called hereafter as organization) is to achieve the highest possible health standard for all the people.2’ 

It has been mentioned about role of access to health for providing of peace and security in preamble of this charter that the health for all people requires for basic action to access peace and security and it depends on cooperation between people and governments. Advancement in upgrading and supporting of health is valuable for all people of any country. Unequal development is considered as a common risk for upgrading of health and control of diseases especially communicable diseases in various countries. 

Despite the fact that it has not been directly referred to subject of access to drug in introduction of WHO charter and related articles, but in Clause (u) of article 2 of this charter one of the tasks of WHO Organization is expressed as follows: (u) to develop, establish and promote international standards with respect to food, biological, pharmaceutical and similar products.; and likewise it has been mentioned in this regard in Clause (e) of Article 21 of charter that ‘e) advertising and labeling of biological, pharmaceutical and similar products moving in international commerce.’ 

Concerning effort made for eradication of epidemic and local diseases and other diseases, Clause (g) of Article 1 of charter has considered encouragement and execution of advancement works as tasks for this organization3

Strategic reports of WHO Organization 

As it implied, WHO Organization is the most relevant international organization for subject of right to health and thus right of access to drug. The goal, tasks and duties of this organization were briefly mentioned as above and as it implied in the related charter. It is also useful to refer to some measures taken by this organization and the regional units as an example of international and regional documents. For instance, WHO Organization declares under title of Global Program to Eliminate Lymphatic Filariasis4 (GPELF) (Progress report on mass drug administrations: MDA)5 as follows: Pursuant to request from World Health Assembly and by virtue of decision (50/97-1990)6 , the governments of countries which involved in lymphatic filariasis have put the first program for elimination of this disease under title of public health on top of the agenda by 2000. It is approximated that global program to eliminate Lymphatic Filariasis (LF) has quickly progressed to more than a half of world population since that period through the end of 2005 by mass drug administration (Global Program to Eliminate Lymphatic [14]. 

WHO Organization has expressed the reports of work progress in subsequent years within Report of Year 2007 of this organization as follows: during year 2007 the significant scale measurement for mass drug administration to lymphatic filariasis was led to coverage of 48 countries which were exposed to this regional disease. It is mentioned in this report that China was the first country that announced it has succeeded to eliminate this disease and by the end of 2007, 81 nations have remained in list of patients of this regional disease while 61 countries started path map (Global Program to Eliminate Lymphatic [15]. It was also referred to these progresses similarly in report of subsequent years and it is implied in report of year 2015: The elimination of lymphatic filariasis has been targeted as the removal of problem of public health for 2020 (Global Program to Eliminate Lymphatic) [16]. 

2Article 1 The objective of the World Health Organization ''hereinafter called the Organization.

3(g) to stimulate and advance work to eradicate epidemic, endemic and other diseases.

4Filariasis= infection by filarial worms in the blood and lymph channels, lymph glands, and other tissues, the various species causing skin swellings, blindness, or elephantiasis if untreated.

5Global Program to Eliminate Lymphatic Filariasis (GPELF) (Progress report on mass drug administrations) (MDA)

6WHA50.29 in 1997. 

Universal Declaration of Human Rights 

Universal Declaration of Human Rights was approved in UN General Assembly on [17]. It is the result of experiences from World War II. The Universal Declaration of Human Rights is a document that has addressed basic human rights for the first time. This document has been ratified by representative from different countries with various legal and cultural systems and verified by virtue of UN General Assembly Resolution No 217A. This document which has been so far translated into more than 500 languages is assumed as a milestone in history of human rights. It is mentioned in article 3 of this declaration that: ‘Anyone has right to life, freedom and security. Clause 1 of Article 25 of this declaration held: Anyone has right to provide for higher life level, health and health and for his/ her family especially in terms of foods, cloth, housing, and medical care as well as social services…’ As it observed in this document, it has not been directly referred to right to health and right of access to drug, but right to living is implied in Article 3 of this declaration. Typically, this declaration considers healthy life and access to drug is one of tools for being healthy. It is not also unreasonable to infer concept of having right to personal security. In Clause one of Article 25 of this document, medical care is one of the elements for providing of health to anyone and also health for his/ her family and right of access to drug is requisite for medical care7

It has been explicitly and perfectly referred to right to health in Clause 1 of Article 12 of this document. It is mentioned in this clause: ‘The member states in present covenant recognize the right of anyone to enjoy the highest attainable standard of physical and mental health.’ The Clause 2 of this article implies about fulfillment of this right in three paragraphs regarding requisite for taking measures such as reduction in rate of mortality of children upon birth and afterwards and their healthy growth, improvement in environmental health, prevention and cure of pandemic and endemic and occupational diseases and other diseases and creation of suitable conditions for medical aids to the public in the case of morbidity to diseases. Concerning access to the result of studies and innovations which will typically include medicinal inventions, it has been mentioned in Part III of Clause one of Article 15 of International Covenant on Economic, Social and Cultural Rights as follows: The member states shall be required to prepare suitable climate for accessibility of results of scientific studies and information about novel products and thoughts and scientific findings8

7International Covenant on Economic, Social and Cultural Rights.

(ICESCR) (1966)

8Article 15- 1. The States Parties to the present Covenant recognize the right of everyone: (c) To benefit from the protection of the moral and material interests resulting from any scientific, literary or artistic production of which he is the author. 

The Committee on Economic, Social and Cultural Rights (CESCR) assumes right to health as including all human rights and freedoms. This committee interprets right to health according to Clause one of Article 12 of Covenant on Economic, Social and Cultural Rights as a comprehensive right in addition to healthcare such as health provider factors e.g. access to clean and healthy fresh water, adequate health, nutrition and housing, secure and safe occupational conditions and workplace (HSE) as well. Similarly, this committee implies whereas some diseases have potential for sudden morbidity thus international community is jointly responsible for this issue and it has special responsibility among developed countries compared to developing nations [18]. 

Report to Committee on Economic, Social and Cultural Rights 

According to Articles 16 and 17 of International Convention on Economic, Social and Cultural Rights, member states have been required to present annual report concerning the aforesaid rights to the related committee. Some cases have been extracted from the reports of fifth periodical of this committee among member states regarding Uruguay by the relevant committee in 2015. Some clauses of this report are concerned with subject of health and medical care and mentioned as follows: 

It is implied in Clause 200 of the given report that: ‘Concerning recommendation to the nations to take strides toward preparation of access to healthcare, improvement of conditions in prisons and police detention centers, and ensuring that these countries will enforce standard regulations in this regard and the necessary financial credits have been upgraded to continue improvement in health circumstances some reports have been proposed [19]. 

The Cairo Declaration on Human Rights in Islam (5 August 1990) 

This declaration includes 25 articles in which Article 2 and 17 discuss about dignity of human life. Clause (a) of Article 2 of this declaration holds: ‘The life is a bounty granted as a gift by the God and right of living has been guaranteed for any human. It is the duty for individuals, community and government to protect this right against any violence. Alleviation of life is forbidden except by permission of religion and law.’ Clause (b) of Article 2 discusses about prohibition of massacre and holds: ‘It is forbidden to resort to any means which may lead to massacre of mankind.’ Regardless of time occasions, protection from human’s life is a religious duty. Clause (c) of this Article implies: ‘Providing of physical health has been guaranteed for human against damages to this right.’ Protection from this right is one of duties of government and creating of fault in this process is forbidden with religious permission. 

Declaration of the Rights of the Child (20 November 1959) 

Declaration of the Rights of the Child [20], was approved by Community of Nations for the first time in [21]. This declaration is well-known as Geneva Declaration and it is deemed as the first international effort taken to attach right to the children. This declaration was reconfirmed by General Assembly of Community of Nations in 19249. In 1958, UN General Assembly ratified World Declaration on Rights of Child including 10 principles. Based on Article for of this declaration. Child shall enjoy suitable amusements and medical services10.Article 8 of this declaration holds: ‘The child shall be the first individuals who enjoy support and facilities under any condition11. The right of access to drug and medicinal information can be inferred from these two principles as healthcare instruments and medical services and facilities. 

Convention on the Rights of the Child (20 November 1989) 

Convention on the Rights of the Child (20 November 1989) is one of the documents in which healthcare is assumed as important. Article 3 of this convention holds: ‘The members states shall guarantee that the institutes, services, and facilities are provided for care or support from the children with the standards established by competent authorities, especially concerning health, fitness, with fixed number of personnel and their sponsorship better than ever.’ It is referred to intrinsic right of any child to life in Clause I of Article 6 of this convention and expresses: ‘The member states will recognize intrinsic right to life for the child.’ Clause II of this article is as follows: ‘The member states shall guarantee the highest possible continuance for child’s life.’ 

International Convention on the Elimination of All Forms of Racial Discrimination (1965) 

By referring to obligations of governments listed in Article 2 of the convention, Article 5 of this convention requires the governments to prohibit and removal any type of racial discrimination. Likewise, this article requires the governments to grant these rights without discrimination including the listed rights in Part 4 of Clause (a) of this article. The rights listed in Part 4 of the given clause which is deemed as economic, social and cultural rights mentions word ‘especially’ held as follows: ‘The rights to public health, medical care, social security, and social services.’ 

9Geneva Declaration of the Rights of the Child, 1924.

10The right to adequate nutrition, housing and medical services.

[1]1The right to be among the first to receive relief in all circumstances. 

Convention on the Elimination of All Forms of Discrimination against Women, 1979 

Article 12 of this convention refers to agreement between member states over taking of duly measures to guarantee for accessibility to healthcare services for the males and females equally and indicates its focus on right to health. It is mentioned in Clause I of this article: ‘The member states shall take measures for removal of discrimination against the women concerning medical care based on equality of female and male in terms of access to services relating to medical care including family relations.’ Clause II of Article 12 of this convention is devoted to necessity for taking measures for access to the related services for pregnancy period in women and after childbirth to them. Access to these services and access to drug surely has special position. 

The convention on the Rights of Persons with disabilities 

Article 25 of this convention has typically dealt with subject of right to health. It is implied in this article that the member states will recognize right of enjoyment of disabled persons to health with no discrimination at the highest standard level. 

United Nations Convention on the Protection of the Rights of All Migrant Workers and Members of Their Families in 1990 

Article 28 and Part (a) of Clause one of Article 43 and Clause (c) of Article 45 of this convention has referred to right to health. Article 28 of this convention holds: ‘the immigrant workers and members of their families shall enjoy right of access to any type of medical care as requisite for protection from their life and prevention from irrecoverable damaging to their health.’ Therefore these governments shall take measure according to principle of observance of national behavior versus aliens. Such a necessity for medical care should not be followed by their deprival because of disorder in residence or employment. Clause I of Article 43 of the given act acknowledges that: ‘The immigrant workers shall be treated as equal as nationals of the governments in relation to right to health.’ Part (a) of Clause I of Article 43 of the aforesaid convention is concerned with right to health as follows: ‘The right of access to community and health services requires for preparation of some arrangements to respectful participation in the projects.’ The Clause I of Article 45 of the convention is about right of workers’ family members where Part C of Clause I has also assumed necessary the right to access to community and medical care equally for members of workers’ families as well. The medical care considered by this convention requires for access to the given suitable drugs. 

Resolution UN Human Rights Council approved on 28th September 2011 

This resolution is concerned with drinking of healthy and clean water as one of the elements for right of suitable standard approved for life. 

Agenda 21 Charter for future Rio-1992 

Agenda No 21 is a program for voluntary and non-binding action presented by UN and about sustainable development. This Agenda results from UN Conference on environment and development that was held in [22]. This plan is practical agenda for UN, other multilateral organizations, and governments throughout the world that can executed at local, national, and global level. Number 21 in phrase (Agenda No 21) refers to twenty first century. This Agenda was amended and verified in subsequent UN conferences. Instruction 21 aims to help the environment and it was agreed during summits held about Earth Planet in Rio in 1992. It is mentioned in the third chapter of Instruction No 21 under title of combating poverty that: ‘This objective shall be followed by means of spreading of facilities for the underprivileged people to access education, health, healthy and clean fresh water etc.’ It is implied in Chapter V under title of demographic dynamics and sustainability: ‘… The healthcare services shall include efficient and constant care’ it was expressed in Sixth chapter of this agenda (Protection and promoting human health) that ‘Providing health mechanisms are the essential health tools in creation of coordination needed for public participation in healthcare sector and other related sectors to healthcare ass goals of this agenda in general strategy to provides public health.’ [23]. 

The Agenda 2030 for sustainable development (2015) 

Agenda 2030 titled ‘Transforming our world’ was agreed by participants in the related summit in 2015. It is mentioned in the first row of this document as follows: This Agenda is a plan of action for people, planet and prosperity. This agenda comprises of a preamble and 91 clauses. It is implied in Clause 81 of this agenda that ‘We are announcing today 17 Sustainable Development Goals with 169 associated targets which are integrated and indivisible.’ Clause 26 of this agenda has notified physical and intellectual promotion of health and welfare and development for public life as one of the objectives of this document. It is referred to making effort for acceleration in control of mortalities caused by endemic diseases such as malaria, AIDS, hepatitis, Ebola, and other endemic diseases especially in developing countries [24]. 

Right to health in regional documents of human rights 

In order to avoid from verbosity, it is referred to titles of regional human rights documents and the rules in which it has been emphasized in right to health as follows: European Convention for the Protection of [17]. Article 11 of European Social Charter approved in 1961, Article 10 of [25]. The joint protocol to American Convention on human rights in rights in economic, social, and cultural fields (1988), Article 16 of African Charter of Human Rights (1981), and Clause (b) of Article 17 of Cairo Declaration of on Human Rights. 

Why do developing countries need more to new drugs? 

The pharmaceutical revolution has play essential role in dramatic reduction of mortalities caused by the diseases in developing country during past century. Today, although about 2 billion peoples who are mainly living in developing countries have not access to life-saving drugs [26]. Righting of this imbalance is one of the very important challenges within the field of public health in the world at present century. Lack of study on diseases, especially in these countries is one of the mass access sources in developing countries. Leaving away the study on diseases lacks the market both in public and private sectors in developing nations. As a result, small amount of new and target drugs is only devoted to developing nations [27]. 

The reasons for difficult access to drug in developing countries 

The analysts discuss about this issue that having weak health infrastructure, bureaucratic regulations regarding drug manufacturers, and high taxation tariffs in developing countries are some of great barriers in access to the necessary drugs [28]. The patent for registration of pharmaceutical inventions is one of the potential barriers in developing countries. With respect to difficulty in generic products (placebo) that can compete may increase price of drugs in these countries [26]. 

Iranian regulations about right to health 

Attention has been paid to right to health in basic and ordinary rules in many countries. For example, it is briefly referred to some of Iranian regulations in this regard: Article 29 and Clause 1 of Article 43 of IRI Constitution have been concerned with subjects of social security and public health. Clause 12 of Article 3 also typically refers to right to health tools and Articles 20 and 21 do it. Similarly, subject of health and efforts for protection and supporting from this right are mentioned in Articles 32-40 of Fifth Development Plan. The fourth Development Plan is devoted to enhancement of health and improvement of quality of life. The right to health is addressed in national twenty-year outlook document and it is mentioned in this document that one of the objectives of democratic economy is that the people have longer life and healthier life. The national twenty-year outlook document has emphasized on different social-economic dimensions led to health in addition to describing of characteristics of healthy Iranian community as a society that enjoys health, welfare, nutritional security, social security, equal opportunities, suitable income distribution, family form institution, with no poverty, corruption. Discrimination, and benefitting from appropriate environment [29]. The subject of health has been also noticed in Act of sixth national development plan. Providing of sustainable financial sources has been stipulated for health sector and quantitative and qualitative development of healthcare insurances in Part III of Clause 43 of general policies of sixth national development plan. The Act of sixth development plan has devoted Part-14 to the subject of health, insurance, healthcare of women and family. It is held in Part 5 of Clause (b) of Article 45 to extend insurance coverage to foreign nationals and according to Article 72 of this law the specific sponsor is determined for health and Clause (r) of Article 74 of this law has dealt with necessity for paying attention to deterrence and thwarting of threats in healthcare field. Also Article 74 and related clauses are concerned with health affairs and public healthcare. Clause (d) of this article has recommended the requisite for supporting from production of drugs without trade name (generic).

Conclusion

With respect to the presented issues, it can be concluded that human’s right to health and access to drug is one of the basic human rights because being healthy is one of the requisites for right of life. And as it mentioned, right to health is a right which has been emphasized in many documents relating to human rights. The human rights documents have stipulated some tasks and obligations, especially for the governments. As it implied, some of obligations undertaken by the governments are their obligation for respect, support, and execution in relation to right to health and access to drug. The obligation to respect requires the governments to observe avoidance from intervention in enjoyment of right to health directly or indirectly. Obligation to support requires the government to support from enjoyment of right to health against interventions and intrusions by third party and finally right to execution includes wide range of legal, judicial, and financial efforts etc. for execution and furtherance of right to health. In the course of recent obligation countries have tried and try to regulation or correct their domestic regulations in parallel to international rules. Of course, this effort should not hinder immediate measures taken by the governments under urgent conditions in access to health services, establishment of hospitals and clinics and also access to drugs at suitable costs and healthy water and food.

The necessity for paying attention to public healthcare is assumed as a basic right out of human rights that is proposed as a new subject and even as effective subjects in world peace and security. With respect to the given legal institutions this has caused change and transformation in absolute governance of sovereign states and with respect to change in international law from governance-centrism to individual-oriented trend, the ground is prepared for paying attention to individual health and access to basic drugs more than ever. Therefore, it can be expected that an international treaty to be approved with independent subject of necessity for attention to health and access to drug in order to take step toward approaching to concept of justice in line with interests of international community. Fulfillment of such an expectation needs to investigation and accurate and scientific studies and it requires for effort and endeavor made by researchers and emphatic group in the field of human rights.

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Citation: Sorush Niknamian (2022) The Position for Right to Health and Right of Access to Drug in International Law. J Phys Med Rehabil Disabil 8: 71.

Copyright: © 2022  Sorush Niknamian, et al. This is an open-access article distributed under the terms of the Creative Commons Attribution License, which permits unrestricted use, distribution, and reproduction in any medium, provided the original author and source are credited.

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