This post is part of a symposium on Amy Kapczynski’s essay “The Right to Medicines in an Age of Neoliberalism.” All contributions to the symposium can be found here.
Amy Kapczynski’s article presciently points out the weaknesses of the judicialization of the right to medicines, and its failure “to engage a foundational aspect of [these cases]: the political economy of medicines that they assume.” Kapczynski argues that these cases suggest that a right to medicines “imbricated” within the prevailing neoliberal regime
is plausibly regressive: it places significant strain on healthcare budgets, redistributes upwards, and provides medicines on terms largely dictated by one of the most profitable industries in the world …It mandates discrete individual relief, but rarely sees, much less disrupts, the underlying legal logics and structures that help produce radical health inequities.
Instead Kapczynski argues, “a model of human rights more adequate to our Gilded Age is also possible, one that would prompt and even direct legislatures to take …steps” to “create foundations for more equitable health systems.”
This is a timely argument, given how neoliberalism’s threats to human rights are currently being compounded by the global growth of nationalist populism and retreat of democracy. It is indeed arguable that the right to medicines not only illustrates these threats but animates the stark failings of global health policy and human rights to adequately respond to this issue. When I began working in the access to medicines arena in the early 2000’s, the prevailing statistic that outlined this gap (then already several decades old), stated that one in three people in the world lacked access to essential medicines, a figure which rose to one in two in the most impoverished parts of Africa and Asia. Over twenty years later, this figure is largely unchanged, despite mounting global policy initiatives, the explicit emergence of a right to medicines within the international human right to health, and the transformative outcomes of the global AIDS treatment struggle. While the human rights regime has done much to advance the rhetoric and judicialization of the right to medicines which Kapczynski critiques, the unchanged contours of this gap reflect back this regime’s considerable inadequacy in effecting material change. As the broader contemporary groundswell of literature critical of human rights suggests, the challenges to this regime are existential and pressing. We ignore arguments like Kapczynski’s at our broader peril.
In this comment I elaborate on and contrast several aspects of Kapczynski’s arguments: First, I build on her argument that the political economy of medicines remains untouched by the right to medicines, by describing the relative timidity of a plethora of global health policy initiatives around access to medicines. Second, I delve into Kapczynski’s suggestion that the right to medicines is imbricated in a neoliberal political economy by exploring the legal tension within the right to health, between the contrasting imperatives of a core obligation to provide essential medicines and state duties of progressive realization within available resources. I nonetheless suggest that weak as the current regime may be, it holds a relatively untapped potential to more fully advance a transformative vision of the right to health and medicines focused on affordability and equity. Finally, I consider what Kapczynski’s call for a more transformative human rights regime might entail.
A Mountain of Paper, a Dearth of Pills
A 2017 World Health Organization (WHO) report reiterates that in spite of the institution’s struggles over its almost 70 year history, nearly two billion people continue to lack access to essential medicines. Affordability is a key constraint: the same WHO report suggests that “up to 90% of the population in low and middle-income countries purchases medicines through out of pocket payments,” and that “medicines account for 20 to 60% of health spending in low and middle income countries, compared with 18% in countries belonging to the Organization for Economic Co-operation and Development.” These findings reiterate past reports finding that “essential medicines remain unaffordable and insufficiently available in developing countries,” and that “medicine availability is poor in many countries (particularly in the public sector), prices are high, and treatments, especially those for noncommunicable diseases, are unaffordable for those on low wages.”
That this figure has remained virtually static belies the relative explosion of policy efforts to increase access in the past twenty years: from the 2000 Millennium Development Goals (MDG), the 2006 WHO Commission on Intellectual Property Rights, Innovation and Public Health, the 2008 Global Strategy and Plan of Action on Intellectual Property, Innovation and Health, the 2016 UN High Level Panel on Access to Medicines, to the 2016 Sustainable Development Goal (SDG) on Health. While these initiatives propose a proliferating suite of actions to resolve the access gap, almost all evince a reluctance to explicitly name affordability measures opposed by the pharmaceutical industry: Note for example, the reticence of MDG 8.e which aimed to provide access to affordable essential drugs in developing countries in cooperation with pharmaceutical companies, an approach that seemed to preclude ostensibly “uncooperative” measures like compulsory licenses. Certainly as the gains of the global AIDS treatment struggle pushed TRIPS flexibilities out of the margins of legal and policy discussions through the 2000’s, these policies began to more explicitly name and propose their use. For example, the 2016 SDG on health, assented to by 196 countries at the United Nations, calls for “access to safe, effective, quality and affordable essential medicines and vaccines for all,” as a key part of achieving universal health coverage. It cites as a key mechanism for achieving this target that states
provide access to affordable essential medicines and vaccines, in accordance with the Doha Declaration on the TRIPS Agreement and Public Health, which affirms the right of developing countries to use to the full the provisions in the Agreement on Trade-Related Aspects of Intellectual Property Rights regarding flexibilities to protect public health, and, in particular, provide access to medicines for all.
The clarity of the SGDs in calling for the use of TRIPS flexibilities is a welcome advance on the MDG’s. Yet equally notable is how few of these initiatives name measures like compulsory licensing as part of these flexibilities, despite these being named even within the Doha Declaration itself. Indeed, only the 2016 report of the United Nations High Level Panel on Access to Medicines explicitly does so, recommending that “WTO members should commit themselves, at the highest possible political levels, to respect the letter and the spirit of the Doha Declaration on TRIPS and Public Health, refraining from any action that will limit their implementation and use in order to promote access to health technologies,” and that this includes “adopt[ing] and implement[ing] legislation that facilitates the issuance of compulsory licenses.”
The rhetorical weakness of many of these initiatives suggests the compliance of global health policy makers and initiatives with the demands of a powerful industry in spite of the exigencies of public health, human rights, and even trade law. It is a polycentric outcome of the “squeeze play” that Kapczynski outlines which has played a large part in blocking domestic initiatives to adopt compulsory licenses and other affordability mechanisms. As Kapczynski outlines, pharmaceutical companies have reshaped global law and policy “by securing the passage of international agreements that mandate restrictive IP law in most of the world, and leveraging trade pressure from the United States and European Union to punish countries that seek to use flexibilities allowed by these same agreements.” This is how, even as policy makers in Geneva have churned out processes and initiatives, calls and declarations, the political economy that Kapczynski describes has remained virtually untouched.
An Existential Crisis for Human Rights and the Right to Health?
If essential medicines are a blistering reminder of the inadequacy of global health policy efforts to effectively counter the predations of neoliberalism, they equally signify the failures of human rights in this regard. Here is made evident the critique that human rights have done little more than nip “at the heels of the neoliberal giant whose path goes unaltered and unresisted.” Certainly economic, social, and cultural rights like health have long been constrained by the central tension inherent in their legal formulation in the International Covenant on Economic, Social and Cultural Rights (ICESCR), which limits state duties to progressive realization within available resources. Even at drafting this article was critiqued as a weak guarantee of ICESCR rights, giving “too many loop-holes for States parties wishing to evade their obligations” by pleading a lack of resources and permitting indefinite delays. It is no surprise then that the UN Committee on Economic, Social and Cultural Rights, which oversees this treaty, attempted to place essential medicines beyond the limitations of progressive realization by designating them as a core obligation under the right to health. As core obligations, essential medicines would therefore enjoy if not the controversial non-derogable status originally outlined in General Comment 14, then certainly a priority in the allocation of health resources and a stricter scrutiny of the reasonableness of limitations of this right.
Yet these theoretical innovations have done little to safeguard the legal weakness inherent in making economic, social, and cultural rights like health subject to progressive realization. It is arguable that instead, the mechanism renders this right particularly susceptible to abuse in economic contexts in which social spending is deprioritized and pharmaceuticals are virtually hermetically sealed from affordability measures. The Colombian and Brazilian cases Kapczynski cites have arguably erred on the opposite side of this tension by requiring public expenditure for very expensive medicines, thereby reinforcing the legal and political edifice that sustains high medicine pricing. I would argue however that this fault is not inherent within the theoretical interpretation of the right to medicines, and that this right does not in fact “impose a legal obligation on governments to provide high priced medicines, regardless of the cost.” General Comment 14, in contrast, designates economic affordability as an essential element of the right to health, requiring that health facilities, goods, and services be affordable for all, and that payment for health-care services “be based on the principle of equity, ensuring that these services, whether privately or publicly provided, are affordable for all, including socially disadvantaged groups.” Courts that enforce rights to prohibitively expensive medicines are therefore misapplying a central tenet of this right.
The latter dissension is nonetheless a relatively small quibble with Kapczynski’s broader argument, which is timely and appropriate. The human right to health as currently constructed is not strong enough to counter the predations of neoliberal capitalism on equitable provision of public health care and on population health more broadly. The legal and theoretical base for this right must be bolstered precisely where economic supremacy threatens access to essential health care as it does with pharmaceuticals. Moreover strategies for achieving access to medicines (and the larger imperative of universal health care and coverage) must take heed of Kapczynski’s call for a revitalized human rights movement which pays “attention to the structural changes that are needed to reform our political economy, and to provide the infrastructure for fair provision, locally and globally, that neoliberal legality has steadfastly opposed.” Yet what precisely these measures should be remains unclear. Kapczynski suggests looking to “access to medicines advocates who have grasped hold of pieces of the global logic of neoliberalism and begun successfully to challenge them.” While AIDS treatment campaigns were unquestionably transformative of global antiretroviral access, these campaigns did little to alter the international legal construction of intellectual property rights, nor its attending political economy. This absence of effect is a sobering recognition of the limits of even the most successful human rights strategies. For human rights advocates and scholars there is surely no greater imperative than to consider anew how to transcend these limits and realize the rhetorical promise of universal and affordable health care for all embodied within the right to health.
 Amy Kapczynski, “The Right to Medicines in an Age of Neoliberalism,” Humanity 10, no. 1 (Spring 2019): 91.
 Ibid., 81.
 Ibid., 82.
 Freedom House, “Democracy in Retreat: World Freedom Report 2019,” https://freedomhouse.org/sites/default/files/Feb2019_FH_FITW_2019_Report_ForWeb-compressed.pdf (accessed September 25, 2019).
 World Health Organization, Progress of WHO Member States in Developing National Drug Policies and in Revising Essential Drugs Lists (Geneva: World Health Organization, 1998) WHO/DAP/98.7. See also WHO, “WHO Medicines Strategy 2004–2007: Countries at the Core,” WHO Doc. WHO/EDM/2004.5, 2004, http://apps.who.int/medicinedocs/pdf/s5416e/s5416e.pdf, 3 (accessed September 25, 2019)
 See for example, World Health Organization, “Ten Years in Public Health, 2007-2017: Report by Dr Margaret Chan, Director-General, World Health Organization,” (Geneva: World Health Organization; 2017), 4. Licence: CC BY-NC-SA 3.0 IGO.
 See, more generally, Lisa Forman, “The Inadequate Global Policy Response to Trade-related Intellectual Property Rights: Impact on Access to Medicines in Low and Middle-income Countries,” Maryland Journal of International Law 31, no. 1 (2016): 8–20.
 World Health Organization, “Ten Years in Public Health, 2007-2017,” 14.
 Ibid., 15.
 United Nations Millennium Development Goal Gap Task Force Report, “MDG Gap Task Force Report 2014: The State of the Global Partnership for Development,” 53; United Nations Millennium Development Goal Gap Task Force Report, “MDG Gap Task Force Report 2015,” 58.
. MDG, 8: Develop a Global Partnership for Development, G.A. Res. 55/2, at 20 (September 18, 2000); WHO, “Public Health, Innovation and Intellectual Property Rights: Report of the Commission on Intellectual Property Rights, Innovation and Public Health,” 2006,
http://www.who.int/intellectualproperty/documents/thereport/ENPublicHealthReport.pdf (accessed September 25, 2019); WHO, “Global Strategy and Plan of Action on Public Health, Innovation and Intellectual Property,” 2011, http://www.who.int/phi/publications/Global_Strategy_Plan_Action.pdf (accessed September 25, 2019); United Nations, “Report of the United Nations Secretary-General’s High-Level Panel on Access to Medicines: Promoting Innovation and Access to Health Technologies,” 2016, http://www.unsgaccessmeds.org/final-report/ (accessed September 25, 2019); Sustainable Development Goals, U.N., https://sustainabledevelopment.un.org/?menu=1300
 Forman, “The Inadequate Global Policy Response to Trade-related Intellectual Property Rights,” 16.
 Sustainable Development Goal 3.8, U.N., https://sustainabledevelopment.un.org/?menu=1300 (accessed September 25, 2019).
 World Trade Organization Ministerial Conference, “Declaration on the TRIPS Agreement and Public Health,” (Doha, November 9-14, 2001), WT/MIN(01)/DEC/2 (Nov.20,2001), article 5.b.
 United Nations, “Report of the United Nations Secretary-General’s High-Level Panel on Access to Medicines: Promoting Innovation and Access to Health Technologies,” 2016, http://www.unsgaccessmeds.org/final-report/, 27–29 (accessed September 25, 2019).
 Kapczynski, “Right to Medicines,” 88.
 Ibid., 79, quoting Samuel Moyn, Not Enough: Human Rights in an Unequal World (Cambridge, Mass.: Harvard University Press, 2018), 216.
 United Nations, International Covenant on Economic, Social and Cultural Rights, 1976, article 2.1.
 United Nations General Assembly Official Records, “Annotations on the Text of the Draft International Covenants on Human Rights,” Agenda Item 28 (Part 11) Annexes Tenth Session, New York (1955), UN Document A/2929, Chapter I: An Outline of the History of the Draft Covenants, 23.
 UN Committee on Economic, Social and Cultural Rights, “General Comment 14, The right to the highest attainable standard of health (Twenty-second session, 2000),” U.N. Doc. E/C.12/2000/4 (2000), para. 43.
 Ibid.; See more generally, Lisa Forman, “Can Minimum Core Obligations Survive a Reasonableness Standard? Analysing the Future of Right to Health Litigation at the United Nations Committee on Economic, Social and Cultural Rights,” Ottawa Law Review 47, no. 2 (2016): 557–73; and Katrina Perehudoff and Lisa Forman, “What Constitutes ‘Reasonable’ State Action on Core Obligations? Considering a Right to Health Framework to Provide Essential Medicines,” Journal of Human Rights Practice 11 (2019): 1–19.
 Kapczynski, “Right to Medicines,” 89.
 General Comment 14, para. 12.b.iii.
 Kapczynski, “Right to Medicines,” 82.