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WHO’S RESPONSIBLE?

TAGline Fall 2016

Pharma’s Obligations Under the Right to Science

By Erica Lessem and Brian Citro

Benefitting from scientific progress is a human right, but who’s responsible for ensuring that this right is upheld? As Mike Frick clearly lays out in “Science and Solidarity”, governments must respect, protect, and fulfill the right to science through development and diffusion of science and its applications. Indeed, human rights are primarily concerned with the relationship between individuals and their governments. However, as many countries rely on the private sector for the vast majority of research and development (R&D), and increasingly privatize the provision of social services, activists must also ask what obligations private companies have to uphold human rights and take steps to hold them accountable when they do not.

At a minimum, all non-state actors—including pharmaceutical corporations—must respect human rights. The obligation to respect means that they must not take steps that violate rights. The Universal Declaration on Human Rights clearly states that no group or person may “engage in any activity or … perform any act aimed at the destruction of any of the rights and freedoms set forth herein.” The United Nations Guiding Principles on Business and Human Rights also establish the corporate responsibility to respect human rights, meaning that corporations “should avoid infringing on the human rights of others and should address adverse human rights impacts with which they are involved.”

Corporations also have legal personhood under domestic and international law, as determined by international agreements that subject them to direct liability and by rights granted, for example, under the US constitution. Companies are increasingly assuming roles once reserved for states by providing public goods and services through, among other things, the privatization of prisons or the formation of public-private partnerships in the fields of military, education, and health care. In addition, corporations increasingly resemble states in scale; Pfizer’s 2015 revenues, for example, were greater than the GDP of about three-fifths of the world’s countries. If corporations are recognized as persons under the law and resemble states in both roles and scale, then, like states, they must be held directly accountable under human rights law.

With this in mind, let’s consider how pharma fails to respect the right to science. It starts at development—driven by profit, companies invest in products with a highly remunerative market, ignoring conditions of the poor, and violating the principle requiring a focus on vulnerable groups. Hence the sparse pipeline for new tuberculosis drugs, which contains just six candidates with very few trials. Even when lifesaving products are developed, pharma often fails at diffusion, declining to register products where they’re most needed, and setting prices prohibitively high in violation of the principle of nondiscrimination. Consider the painfully slow progress of HIV pre-exposure prophylaxis availability around the world and the exorbitant price of Gilead’s sofosbuvir, at $90,000 in the US.

As the private sector continues to dominate the field of medical innovation, it’s vital that we hold pharma directly responsible for respecting the right to science, through both the development and diffusion of products that respond to public health needs and that are available and affordable to those who need them.

Brian Citro is a Clinical Lecturer in Law and the Associate Director of the International Human Rights Clinic of the University of Chicago Law School. He is also the Director of “Developing a Rights-Based Approach to TB,” a project funded by the University of Chicago Centers in Delhi and Beijing and the Pozen Family Center for Human Rights.•