Damned if You Do, Damned if You Don't? The Lundbeck Case of Pentobarbital, the Guiding Principles on Business and Human Rights, and Competing Human Rights Responsibilities

Author:

Buhmann Karin

Abstract

In early 2011, news emerged that United States authorities had begun to apply injections of pentobarbital, a substance provided by Danish pharmaceutical company Lundbeck, when executing capital punishments. Lundbeck reported to be appalled by such unintended usage of pentobarbital, which is licensed for treatment of refractory forms of epilepsy and for usage as an anaesthetic.The human rights NGOs Reprieve and Amnesty International urged Lundbeck to ensure that pentobarbital was not made available to U.S. authorities for use in capital punishments. Lundbeck argued that complete halting of provision of pentobarbital would be detrimental to patients suffering from conditions of severe epilepsy for whom the substance was developed and intended for treatment for life-threatening epileptic seizures. Lundbeck’s Danish headquarters also argued that controlling the provision of pentobarbital was out of Danish Lundbeck’s hands because the substance is produced at Lundbeck’s plant in the United States. Eventually, after talks with Amnesty International and Reprieve, Lundbeck in July 2011 announced that it would seek to put a stop to using pentobarbital in capital punishment through the introduction of a “drop-ship” program (ensuring that the drug is distributed through one specific channel and buyers are required to sign a statement that the product will not be applied towards capital punishment).

Publisher

Cambridge University Press (CUP)

Subject

Health Policy,General Medicine,Issues, ethics and legal aspects

Reference60 articles.

1. 21 Commission on Human Rights, Human Rights and Transnational Corporations and Other Business Enterprises, UN Doc. E/CN.4./2005/L.87, April 15, 2005, para. 1.

2. 59 Id. (when accessed December 9, 2011, it included a reference to a “recent post” with information that a 36th individual had been killed in Texas on November 16, 2011.) Compare Amnesty International, supra note 56, making reference to 13 individuals executed since December 2010, and Nicholl, , supra note 3, which notes that at that time 17 individuals had been executed by use of a lethal cocktail containing pentobarbital.

3. 35 “Complicity in the business and human rights context refers to the indirect involvement of companies in human rights abuses. In essence, complicity means that a company knowingly contributed to another's abuse of human rights. It is conceived as indirect involvement because the company itself does not actually carry out the abuse. In principle, complicity may be alleged in relation to knowingly contributing to any type of human rights abuse, whether of civil or political rights, or economic, social and cultural rights.” SRSG, Clarifying the Concepts of “Sphere of Influence” and “Complicity,” UN Doc. A/HRC/8/16, May 15, 2008, at para. 30, see also at paras. 26–29.

4. 18 SRSG, State Responsibilities to Regulate and Adjudicate Corporate Activities under the United Nations Core Human Rights Treaties: An Overview of Treaty Body Commentaries, UN Doc. A/HRC/4/35/Add.1, February 13, 2007.

5. 23 Human Rights Council, Mandate of the Special Representatiive of the Secretary-General on the Issue of Human Rights and Transnational Corporations and Other Business Enterprises, Human Rights Council Resolution, June 7/8, 2008.

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