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The protection of health and safety

The right to health and safety is a human right,[1] which has been recognized in the Universal Declaration of Human Rights, adopted in 1948.[2] Article 25(1) of the Declaration states that everyone has the ‘right to a standard of living adequate for the health and well-being of himself and of his family’, including medical care and the right to security in the event of sickness, disability, or old age. The right to health has been confirmed by Article 12 of the ICESCR, which enshrines ‘the right of everyone to the enjoyment of the highest attainable standard of physical and mental health’, including the prevention of diseases and availability of medical services.[3] Furthermore, at the EU level, Article 35 of the Charter of Fundamental Rights provides the right of access to healthcare.[4]

Besides, and as a consequence of, these general pronouncements, there is a global, ongoing tendency to give shape to health and safety rights in precise legal instruments that also have an effect on consumer protection. The UN took the lead with the adoption of its 1985 Guidelines for Consumer Protection, discussed at the beginning of this chapter, which enshrine the right to safety. A second important step has been the adoption of the EC Directive 92/59/EEC[5] on general product safety (later replaced by Directive 2001/95/ EC).[6] At the national level, the right to health protection has been integrated in a number of national constitutions.

Whilst the right to health and safety has certainly been strengthened and further promoted by legal initiatives over the last decades, the tension remains as to how health and safety measures should be weighed against freedom of trade and patent rights. This is particularly evident in developing countries, where a jarring contrast emerges between fundamental rights and economic principles, and where the constitutional inclusion of the right to healthcare is having a significant impact in protecting individuals, including consumers.

For example, the Constitution of the Republic of South Africa was rewritten in the 1990s (and entered into effect in February 1997), containing numerous economic and social rights inspired by the UN International Covenant on Economic, Social and Cultural Rights. The right to health is mentioned in section 27, which states: ‘(1) Everyone has the right to have access to (a) healthcare services, including reproductive healthcare; (b) sufficient food and water; and (c) social security.’ This right has to be respected, promoted, and fulfilled by the state.

Driven by the strategic activism of non-governmental organizations, this right has, in particular, played a significant role in cases on access to essential medicine in relation to the HIV epidemic. For instance, in 2001, the Treatment Action Campaign (TAC), in an effort to promote affordable treatment for people with HIV successfully supported the South African Government against a legal challenge from pharmaceutical companies.[7] These companies challenged the validity of the amended South African 1997 Medicine Act,[8] which allowed the parallel import of generic drugs, arguing that this would violate their patent rights.[9] However, they eventually withdrew the action against the South African Government owing to considerable public pressure.[10] [11]

In the landmark Nevirapine case,1 42 the TAC filed a suit against the South African Government, claiming that its restriction on the availability of Nevirapine (a drug capable of reducing the transmission of HIV from mothers to infants) violated the right to health. The trial court decided that limiting Nevirapine in the public sector ‘is not reasonable and is an unjustifiable barrier to the progressive realisation of the right to healthcare’.[12] In July 2002, the Constitutional Court of South Africa decided that the government’s policy violated the healthcare rights of women and new-born children under the South African Constitution. It thus confirmed an obligation on the government to facilitate the use of Nevirapine at public hospitals and, moreover, it required the government to implement a publicly funded programme to ensure access to health services to pregnant women and new-born children.

The right to health is inextricably linked to consumer protection, because access to safe products and to essential services at an affordable price plays an important role in both fields of law. The cases just discussed illustrate how constitutional rights may help to shift the balance of power in favour of the weaker party and away from large corporations. Moreover, they show that constitutional rights can have a significant practical judicial impact, obliging governments to effectively implement these rights, and are thus not merely abstract statements.

  • [1] See G. Robbers, Menschenrecht auf Sicherheit—Aspekte der Geschichte, und Wirkungeiner Grundrechtsfunktion (Baden-Baden: Nomos, 1987).
  • [2] See the Universal Declaration at: .
  • [3] General Assembly resolution 2200A (XXI) of 16 December 1966.
  • [4] T. Hervey, ‘The Right to Health in EU Law’ (n 72), p. 196.
  • [5] OJ L 228, 11.8.1992, 24.
  • [6] OJ L 11, 15.1.2002, 4.
  • [7] Notice of Motion in the High Court of South Africa (Transvaal Provincial Division), CaseNo. 4183/98.
  • [8] Medicines and Related Substances Control Amendment Act No. 90 of 1997, South AfricanGovernment Gazette No. 18,505 of 12 December 1997 amending the Medicines and RelatedSubstances Control Act No. 101 of 1965.
  • [9] For more information see L. Forman, ‘ ‘ ‘Rights” and Wrongs: What Utility for the Rightto Health in Reforming Trade Rules on Medicines?’, (2008) 10(2) Health and Human Rights: AnInternational Journal
  • [10] D. Barnard, ‘In the High Court of South Africa, Case No. 4138/98: The Global Politicsof Access to Low-Cost AIDS Drugs in Poor Countries’ 1 (2002) 12 Kennedy Inst. of Ethics J., pp.159-74; G.J. Annas, ‘The Right to Health and the Nevirapine Case in South Africa’, (2002) 346New England Journal of Medicine, pp. 750-4.
  • [11] Minister of Health and Others v Treatment Action Campaign and Others, 2002 (5) SA 721 (CC),para. 25, 2002 (10) (BCLR 1033) (CC).
  • [12] High Court of South Africa, Transvaal Provincial Division, Treatment Action Campaign vMinister of Health, (2002) 4 BCLR 356; Annas, ‘The Right to Health and the Nevirapine Case inSouth Africa’ (n 141), pp. 750-4.
 
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