This post was written by Luis Enrique Rosas (Intern at Mexican Supreme Court), summer research assistant at Georgetown University Law Center. Any comments or questions about this post can be directed to firstname.lastname@example.org.
The 23rd session of The United Nations Human Rights Council was held in Vienna on May 27-June 14, 2013. In the session, the Council adopted the resolution titled “Access to medicines in the context of the right of everyone to the enjoyment of the highest attainable standard of physical and mental health.” This post discusses the scope of the resolution in the context of the Latin American constitutional courts and judicial decisions regarding the right to health.
This blog covers the following: the resolution goals on the right to health; the role of the judicial power in the protection of right to health, specifically in the Latin American countries that voted in favor of the resolution; and the scope of the United Nations human rights through the Latin American judicial powers’ decisions.
Goals on the Right to Health
KM. Gopakumar states that, according to an observer, the resolution “Access to medicines in the context of the right of everyone to the enjoyent of the highest attainable standard of physical and mental health” is a step forward in addressing the issue of access to medicines. The reasons for this being the following goals: the resolution is not limited to essential medicines and covers all medicines, the resolution addresses that the regulation of prices of medicines should make them easily accessible and affordable for people, the resolution establishes the link between local production and the right to health framework, and the resolution establishes the link between access to medicines and universal health coverage.
The resolution represents a step forward in the access to the right to the highest attainable standard of health. However, Gopakumar states that the resolution does not contain any mention of curbing the unethical promotion of medicines. Moreover, the resolution implies that the framework need not address the medicines which are not affordable but safe, efficacious and of quality. So, it is possible that in some situations states could interpret the resolution in a way that would reduce its effectiveness on access to medicines when the medicines are not affordable. Overall, however, this resolution represents a big step in the development of the access to medicines.
The next section will discuss the context of the access to medicines in the constitutional courts of Latin American countries that voted in favor of the resolution.
The role of the Supreme Courts in the access to medicines in Latin America.
The following Latin American countries voted in favor of the cited resolution: Argentina, Brazil, Chile, Costa Rica, Ecuador, Guatemala, Peru, and Venezuela. These countries are recognized as emerging democracies and these are characterized by their eagerness to ratify international legal instruments that protect fundamental rights.
Sometimes international law by itself can give effectiveness to the right to health; other times it must be incorporated into domestic law before it becomes enforceable. But, undoubtedly international law has a fundamental place in the definition of the limits, scopes and modulations of the right to health.
States’ constitutional courts define how to interpret the right to health and, in consequence, access to medicines protected by international and domestic law. In order to comprehend the relationship between access to medicines and judicial power, this document discusses a few relevant decisions.
In Argentina, the Supreme Court has adopted a strong role protecting access to medicines covered under the right to health, mainly in decisions related to access by people with low income, the elderly, and people living with HIV/AIDS. This role is clear in, among other cases: Asociación Benghalensis & Ors. v. Ministerio de Salud y Acción Social- Estado Nacional; Asociación de Esclerosis Múltiple de Salta v. Ministerio de Salud – Estado Nacional; Orlando, Susana Beatriz v. Province of Buenos Aires.
In Brazil, we can see the same behavior in order to protect access to medicines in precedents decided by the Federal Supreme Court; for example, decisions related with the access to medicines for people living with HIV/AIDS (Free Distribution of Medicines in Favor of Persons in Need, No. 271.286-8) and access to medicines for people with serious diseases (Municipality of Caxias do Sul v. Vinícius Carpeggiani).
In a similar way, in cases related with people living with HIV/AIDS the Constitutional Court of Ecuador protected the right to health and the access to medicines as we can see in Edgar Mauricio Carpio Castro y otros contra Programa Nacional del SIDA-VIH-ITS y Ministerio de Salud Pública, Tribunal Constitucional (Sala Tercera), Sentencia núm. 0749-2003-RA.
In Peru, the Constitutional Court ruled on access to contraceptives in the case Chávez Alvarado, Susana & Ors. v. el Ministerio de Salud. In Venezuela, we can see Supreme Court decisions related to access to medicines, for example, the case Cruz del Valle Bermúdez & Ors. v. Ministerio de Sanidad y Asistencia Social (MSAS). In this decision, the Supreme Court protected access to medicines for people living with HIV/AIDS.
The Supreme Court of Costa Rica (Constitutional Chamber) has recognized access to medicines as an important component of the right to health as we can see in the Court decision 14325-03.
In contrast, in Chile we have a different status on access to medicines and judicial decisions. In older precedents, the Constitutional Court of Chile denied constitutional protection to access to medicines for people living with HIV/AIDS, as visible in the precedent Adriazola Pizarro Marco Antonio/Servicios de Salud Metropolitano Oriente y Otro Rol N° 4408-00.
The cases that have been discussed suggest that the majority of the Constitutional Courts cited have developed the right to health, specifically on access to medicine, in particular during situations that involve critical conditions or get in trouble the right to life. It means that the judicial framework works, mainly, in critical conditions and for specific diseases such HIV/AIDS. In some cases, the international law has been useful giving enforcement the domestic law.
The scope of the United Nations Human Rights Resolution through the decisions of the Latin American Judicial Powers.
The Human Rights Council resolution represents a step forward in addressing the issue of access to medicines within the right to health. But, how can this resolution impact the understanding and interpretation of the right to health in the judicial sphere?
Although the resolution does not have the same status as an international treaty, covenant, or convention, the resolution can be used in the judicial sphere as a soft law. What does this mean? It means that the resolution does not establish clearly enforceable obligations to the countries that vote for it. However, the resolution can give new approaches about the right to health in domestic and international law. The litigants, the judges and the government now have a progressive international instrument that shows the volition of these countries to expand strongly the access to medicines.
In conclusion, this resolution opens new opportunities to increase access to medicines. With this resolution used like soft law, is possible to try in the courts, at the very least, to have the access to all medicines, to make prices of medicines easily accessible and affordable for people, and to obtain universal health coverage.
The views reflected in this expert column are those of the individual authors and do not necessarily represent those of the O’Neill Institute for National and Global Health Law or Georgetown University. This blog is solely informational in nature, and not intended as a substitute for competent legal advice from a licensed and retained attorney in your state or country.