What constitutes ‘reasonable’ state action on core obligations? Considering a right to health framework to provide essential medicines

Abstract

Universal access to essential medicines is both a core obligation under international human rights law and a key component of the Sustainable Development Goal (SDG) for health. In light of the high prices of some essential medicines and finite health budgets, how can states' core obligation to provide essential medicines be interpreted? We propose that the lens of reasonableness offers a deeper understanding of states' minimum core obligation in relation to resources. Enshrined in the Optional Protocol to the International Covenant on Economic, Social and Cultural Rights, the standard of reasonableness suggests that in the context of essential medicines, the right to health may be better fulfilled by applying uniform criteria to set the scope and texture of local minimum standards rather than a one-size-fits-all universal list of medicines. Drawing on authoritative guidance by the UN Committee on Economic, Social and Cultural Rights, this article selects four criteria to evaluate the standard of reasonableness: deliberate, targeted, and concrete measures to mobilize state resources; low-cost policy options; international assistance; and non-discrimination. The framework allows policymakers, judges and civil society to assess states' compliance with their core obligations with regard to essential medicines. Examples from domestic law and policy for access to medicines illustrate the potential definition, scope, and value of the first three criteria for domestic legislators and judiciaries while depicting how such a consideration could be discharged in practice. This proposal is relevant for progressing towards the SDG target of universal access to essential medicines.