Marie Elske Gispen
The interface between the human rights and drug control frameworks is subject to much international debate and controversy. This is particularly the case in the context of access to controlled medicines: serious negative health, socioeconomic, and human rights consequences can occur with insufficient access to pharmaceuticals. Consumption data reveals that between 2010-2014 there was a global health inequity: internationally controlled opioid analgesics, such as morphine for pain alleviation, had low to nearly zero consumption in 80% of the global population. The world is also facing a lopsided supply/demand chain of opioid analgesics reinforcing the Global South vs Global North divide. In 2009, 90% of all morphine consumption was traced to industrialised countries with the African region, which makes up about 15% of the global population, consuming only 0.2%. The strict control by international drug control treaties contribute to this limited access. In critically assessing the poor availability of controlled medicines globally, my recently published book—Human Rights and Drug Control—flags two key messages.
First, access to medicines ought to be at the forefront of drug control laws and policies, that is, it should be the rule rather than an exception. If we want to understand how human rights should guide drug control policy, we first need to understand how human rights can balance various competing interests and help rationalise priority setting. Article 4 of the Single Convention on Narcotic Drugs (SCND) establishes that the medical and scientific use of controlled substances is the only legitimate purpose in the entire drug-supply/demand chain. Would human rights law support a legal basis in which access to medicines is the exception other than the rule? Or, would human rights law purport that governments have to regulate upon the associated harm and medical benefit in a fundamentally different way?
In my book I argue that human rights law provides for a balancing and priority-setting tool in different ways. Contrary to civil and political rights that are subject to immediate realisation, socioeconomic rights, such as the right to health, are subject to progressive realisation. This means that States have to allocate their maximum available resources and commit these to guaranteeing the full realisation of, for instance, the right to health on the basis of benchmarks and targets over a set period of time. In order to secure the central components of socioeconomic rights they are considered to have a certain minimum core. Realisation and protection of these minimum core aspects is lifted to the level of priority obligations that should be implemented immediately. I believe the way in which human rights law prescribes how to prioritize in rights clashes or within the realisation of aspects of one specific right, holds clear potential for framing a human rights basis of drug control regulation.
Protecting society from harmful substances such as drugs and ensuring access to medicines are both components of a government’s obligation to protect and fulfil the right to health. Use of priority setting in the context of drug control, supported by theories of bioethics which assist in the interpretation of human rights, leads to my conclusion that access to medicines ought to be prioritized in drug policy, rather than prevention against abuse.
Second, the current international drug control system is hampering rather than fostering the enforcement of a ‘medical access-led’ model of drug control. This is placing those countries with the largest patient communities in a structurally disadvantaged position to comply with their international drug control and human rights obligations. Adequate compliance with the obligation to manage a separate administration (Article 17 SCND), the estimate and quarterly statistical return obligations (Articles 19-20 SCND), and the obligation to implement additional domestic trade and distribution restrictions (Article 30 SCND) require well functioning and well resourced health systems. These are often absent in resource-constrained countries. My qualitative research in Uganda and Latvia has found that managing the international administrative and procedural obligations related to drug control uses resources that could otherwise be used to ensure access to medicines, including those controlled under the international drug control regime.
These two messages—access to medicines ought to be at the forefront of drug control laws and policies, and the current system hampers medical access—demonstrate the need for legislative reform. Mainstreaming human rights as a balancing tool in the interpretation, implementation, and application of the international drug control regime demands that States reconsider both technical and substantive aspects of current international and domestic drug control efforts. It is a human rights obligation that access to medicines is the priority, rather than the exception, in drug control regulation.
Marie Elske Gispen, LL.M., PhD, is postdoctoral researcher at the Department of International Law at the University of Groningen (NL). She is also a senior-research associate of the International Centre on Human Rights and Drug Policy of the University of Essex (UK). Email: firstname.lastname@example.org
Health and Human Rights has a section on Drug Control and Human Rights in the forthcoming June 2017 issue. Read the Introduction to the Section here: The Case for International Guidelines on Human Rights and Drug Control