Anand Grover, Georgetown University Law Centre
SYLLABUS
REALISING THE INTERNATIONAL RIGHT TO HEALTH
Course Description and Purpose
Taught by the former UN Special Rapporteur on Health and a practising Senior Counsel in the
Supreme Court of India, Anand Grover, the practical challenges and experiences to realising the
right to health will be delved into. Mr Grover will also discuss specific areas concerning access to
the right to health upon which he has worked on extensively, in his Reports as the UN Special
Rapporteur and his work as a lawyer-activist. The course will be taught in three modules1. Introduction to key human rights treaties, the right to health framework and
principles under international law- This module will introduce students to the sources of
international law and while focusing particularly on human rights treaties - UDHR, ICESCR and
ICCPR which together comprise the international bill of human rights. Article 12 of the ICESCR
establishes the right to health and the duties of State parties thereunder. The right to health
framework as interpreted under General Comment No.14 will be the primary focus of this
module.
2. The HIV/AIDS movement and Vulnerable groups- Through the lens of the
HIV/AIDS epidemic and the historic global movement to secure rights for persons living with
HIV, Mr. Grover will look at the application of the right to health framework versus the public
health approach. The stigma attached to HIV led to the creation and reinforcement of
criminalisation of activities of vulnerable and marginalised groups such as sex workers, the LGBT
population and injecting drug users. Mr. Grover argues for the recognition of vulnerable groups
and rights-based policy approaches to fulfilling their right to health.
3. The impact of intellectual property rights on access to medicines, with a focus on
free trade agreements – The attempted harmonization of IPRs through the Trade Related
Aspects of Intellectual Property Rights Agreement (TRIPS) had enormous consequences on
access to affordable medicines, particularly in the developing world. The legally sanctioned
monopolies conferred by patent rights on drugs allow patentees to charge monopolistic prices.
Mr. Grover argues that increased competition with generic pharmaceuticals is the only
sustainable way to guarantee affordable medicines. Free Trade Agreements and Bilateral
Investment Treaties, are the new trade routes being used to push for protections beyond TRIPS
which could further hamper access to affordable medicines thereby infringing on the right to
health. Investor State Dispute Settlement mechanisms have also been invoked to challenge
decisions on invalidation of patents by domestic courts or other policy decisions taken to protect
public health. In this context, Mr. Grover will discuss the case of Eli Lilly and Company v.
Government of Canada under the NAFTA and the Philip Morris decision by WTO DSU.
Anand Grover, Georgetown University Law Centre
Class engagement, debate and discussion will be encouraged throughout the course. Students will
be asked to examine, reflect on, and critique public health and economic strategies through the
right based approach to health.
Course No.Total Credits –
1 credit hour
Instructor –
Anand Grover,
Former UN Special Rapporteur on the right of all persons to the highest attainable standard of
physical and mental health,
Senior Advocate, Supreme Court of India,
Director, Lawyers Collective (HIV/AIDS Unit)
Semester –
Fall 2016
Day and Time – Saturday, 1st October, Sunday, 2nd October, 10:00 am – 3:30 pm; Saturday, 8th
November.
Classroom Class Attendance- Pursuant to the 201-2015 Georgetown Law Student Handbook of Academic
Policies, “[r]egular and punctual attendance at all class sessions is required of each student…A
student who, even though registered for a course, has not regularly attended, participated, or
otherwise met class requirements may, at the professor’s option, be withdrawn, excluded from
attending class sessions, excluded from sitting for a final examination or submitting a final paper
(with the same consequences as a voluntary failure to appear for a final examination or submit a
final paper), or receive a lowered grade in the course. Even if a student has passed all
examinations, academic credit will not be awarded and no student will be advanced, nor will a
degree be conferred, if attendance or participation is unsatisfactory.”
Specifically, barring extraordinary circumstances, attendance for all classes is mandatory.
Grade Final grades will be awarded on the basis of a take-home essay of 2000-2500 words.
No marks for class participation will be awarded for this course.
Anand Grover, Georgetown University Law Centre
Day 1 (1 October 2016) Human rights treaties, the right to health under International
law (Module1)
Reading Assignment
Compulsory
1. Chapter 3. “Sources”, Malcolm N. Shaw, International Law, (6th Edition, Cambridge
University Press), 69.
2. Chapter 4: Elliott, Richard, 'Access to Medicines for All': WTO Rules, the Human Right to
Health and the Hierarchy of International Law (August 1, 2006), at p.217 Available at SSRN:
http://ssrn.com/abstract=2693384 orhttp://dx.doi.org/10.2139/ssrn.2693384
3. International Covenant on Economic, Social and Cultural Rights (1966), Article 12.
4. UN Committee on Economic, Social and Cultural Rights, General Comment No. 14
on the Right to the Highest Attainable Standard of Health (2000). (skim)
5. Report of the Special Rapporteur on the right of everyone to the enjoyment of the
highest attainable standard of physical and mental health (2014) [A/69/299] pp. 3-11.
6. Report of the Special Rapporteur on the right of everyone to the enjoyment of the
highest attainable standard of physical and mental health (2009) [A/64/272] pp. 5-12.
Optional
1. Pellet, ‘Article 38’ in The Statute of the International Court of Justice: A Commentary
(eds. A. Zimmermann, C. Tomuschat and K. Oellers-Frahm), Oxford, 2006, p. 677
2. Report of the Special Rapporteur on the right of everyone to the enjoyment of the
highest attainable standard of physical and mental health (2012) [A/67/302] pp. 3-7,
18-21.
3. Summaries of the following cases may be read from any source, summaries provided
are suggestive:
• Soobramoney v. Minister of Health, [1997] ZACC 17; 1998 (1) SA 765 (CC).
• Minister of Health v. Treatment Action Campaign, [2002] ZACC 15; 2002 (5) SA 721 .
• Chaoulli v. Quebec, 2005 S.C.C. 35, [2005] 1 S.C.R. 791.
• Yakye Axa Indigenous Community v. Paraguay, Inter-Am. Ct. H.R. (ser. C) No. 125 (June
17, 2005).
• Reibl v. Hughes, [1980] 2 SCR 880.
• Montgomery v Lanarkshire Health Board, [2015] UKSC 11, 11 March 2015 summary
available at http://ukhumanrightsblog.com/2015/03/13/supreme-courtreverses-informed-consent-ruling-sidaway-is-dead/ (Last accessed on August 8,
2015).
4. Varun Gauri, Social Rights and Economics: Claims to Health Care and Education in Developing
Countries, World Development Vol. 32, No. 3, pp. 466–473, 2004.
Anand Grover, Georgetown University Law Centre
Day 2 (2 October 2016)
criminalisation (Module 2)
The HIV campaign, Vulnerable Groups and
Reading Assignment (Compulsory )
1. Report of the Special Rapporteur on the right of everyone to the enjoyment of the
highest attainable standard of physical and mental health (2010) [A/HRC/14/20], pp.
4-22.
2. Report of the Special Rapporteur on the right of everyone to the enjoyment of the
highest attainable standard of physical and mental health (2011) [A/HRC/17/25], pp.
12-15. (skim)
Optional reading
1. Report of the Special Rapporteur on the right of everyone to the enjoyment of the
highest attainable standard of physical and mental health (2011) [A/66/254].
2. Report of the Special Rapporteur on the right of everyone to the enjoyment of the
highest attainable standard of physical and mental health (2010) [A/65/255], pp. 8-16.
3. Summaries of the following cases may be read from any source, those provided in the
course materials are suggestive:
• R v. Cuerrier [1998] 2 SCR 371.
• R v. Mabior [1998] 2 SCR 584.
• Diau v. Botswana, Case No. IC 50/2003.
4. Tim Anderson, HIV/AIDS in Cuba: A rights based analysis, Health and Human Rights
Journal Vol. 11 No. 1, 93.
5. Tripti Tandon, Gabriel Armas-Cardona & Anand Grover, Sex work and trafficking – can
human rights lead us out of the impasse?, October 21, 2014 available at
http://www.hhrjournal.org/2014/10/21/sex-work-and-trafficking-can-human-rightslead-us-out-of-the-impasse/# ftn7 (Last accessed on August 13, 2015).
6. Ronald O. Valdiserri, Mapping the Roots of HIV/AIDS Complacency: Implications for
Program and Policy Development, AIDS Education and Prevention, 16(5), 426-439 (2004).
7. Gerald M. Oppenheimer & Ronald Bayer, History of Medicine: The Rise and Fall of AIDS
Exceptionalism, American Medical Association Journal of Ethics, December 2009,
Volume 11, Number 12: 988-992.
Day 3 (8 October 2016) Intellectual property rights, Free Trade Agreements and ISDSimpact on the right to health and access to medicines
Reading Assignment (Compulsory )
1. The Trade-related Intellectual Property Agreement (TRIPS).
Anand Grover, Georgetown University Law Centre
2. Report of the Special Rapporteur on the right of everyone to the enjoyment of the
highest attainable standard of physical and mental health (2009) [A/HRC/11/12].
3. United Nations Secretary General’s High-Level Panel on Access to Medicines,
“Background Paper: International Legal Norms: the Right to health and the justifiable
rights of inventors”, Richard Elliott and the High Level Panel Secretariat, January
2016. (Available online at http://www.unsgaccessmeds.org/reports-documents/)
4. Report of the Special Rapporteur on the right of everyone to the enjoyment of the
highest attainable standard of physical and mental health (2014) [A/HRC/69/299]
5. Baker BK (2016) Trans-Pacific Partnership Provisions in Intellectual Property, Transparency, and
Investment Chapters Threaten Access to Medicines in the US and Elsewhere. PLoS Med 13(3):
e1001970. doi:10.1371/journal.pmed.1001970 [Copyright: © 2016 Brook K. Baker.
This is an open access article distributed under the terms of the Creative Commons
Attribution License, which permits unrestricted use, distribution, and reproduction in
any medium, provided the original author and source are credited.]
6. Carlos Correa, Intellectual Property in the Trans-Pacific Partnership: Increasing the Barriers for the
Access to Affordable Medicines, Research Paper No.62, South Centre, September 2015.
7. Lise Johnson et al, Investor-State Dispute Settlement, Public Interest and U.S.
Domestic Law, CCSI policy paper, May 2015.
8. Dr Deborah Gleeson, Prof Sharon Friel, Emerging threats to public health from regional trade
agreements, The Lancet, Volume 381, No. 9876, p1507–1509, 27 April 2013.
Optional reading
1. Ruth Lopert & Deborah Gleeson, The High Price of “Free” Trade: US Trade Agreements
and Access to Medicine, Journal of Global Health and the Law, Spring 2013, 199.
2. Baker BK, Geddes K, Corporate Power Unbound: Investor-State Arbitration of IP Monopolies
on medicines- Eli Lilly v. Canada and the Trans-pacific Partnership Agreement, Journal of
Intellectual Property law, Vol. 23, No. 1, Fall 2015.
3. Paper presentation, Krzysztof J. Pelc,(Assitant Prof, McGill University), Does the
Investment Regime Induce Frivolous Litigation?, available on
http://politics.as.nyu.edu/object/io Pelc.html. March 2016
4. JT International SA v Commonwealth of Australia British American Tobacco
Australasia Limited v The Commonwealth, [2012] HCA 43
5. Philip Morris v. Uruguay, DSU Award- July 2016, (ICSID Case No. ARB/10/7),
6. Eli Lilly v. Canada, NAFTA