by Mark Eccleston-Turner

Developing states lack access to pandemic influenza vaccines. The provision of ‘essential’ medicines is a core, non-derogable obligation of the right to health in the International Covenant on Economic, Social and Cultural Rights (ICESCR), which states must fulfill as a minimum criterion. The ICESCR does not provide an exhaustive list of which drugs constitute “essential medicines,” although influenza vaccine was listed as an essential medicine during the most recent influenza pandemics. This paper presents three, interlocking arguments: First, it argues that ensuring access to a vaccine during an influenza pandemic is a right to health obligation for all states. Second, it argues that the access threshold a state must meet in order to discharge its right to health obligation in respect of access to pandemic influenza vaccine is different to the access threshold with oral solid drugs, and attempts to quantify the vaccine access threshold. Third, it examines the extent to which the World Health Organization (WHO) Pandemic Influenza Preparedness Framework can enable developing states to meet the vaccine access threshold during an influenza pandemic, and discharge their right to health obligations in this area, arguing that the Framework is unlikely to have a significant positive impact on access to vaccines by developing states during the next influenza pandemic.