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Max Planck Encyclopedia of Public International Law [MPEPIL]

Health, Right to, International Protection

Eibe Riedel

From: Oxford Public International Law (http://opil.ouplaw.com). (c) Oxford University Press, 2015. All Rights Reserved.date: 20 February 2019

Right to health — Disability

Published under the auspices of the Max Planck Foundation for International Peace and the Rule of Law under the direction of Rüdiger Wolfrum.

A.  Origins and Development of the Right to Health

1.  Ancient Civilizations and the Middle Ages

Prior to the 18th century, responsibility for disease or illness predominantly fell into the hands of private entities such as families, churches, and charities. Only to some extent, especially in cases of epidemic or pandemic diseases, did State institutions become active in order to control the spread of such diseases, mostly through quarantining. Nevertheless, a sense of responsibility and concern for the protection and improvement of health conditions within a community was prevalent throughout the history of mankind. At the centre of these communal health considerations were efforts to provide adequate sanitation, particularly in larger cities. The earliest known water supply and drainage systems were set up in the ancient civilizations of Egypt, India, and Greece, and by the Inca society. In medieval Europe, such sanitation systems were flanked by the establishment of administrative entities responsible for disease prevention, sanitary supervision, and the overall protection of community health.

2.  Pre-World War II: 18th Century, Industrial Revolution

In the 18th century, awareness of public health issues and its importance for society grew significantly. One example of this new awareness is the institution of the so-called ‘medicinischen Polizey’ (medical police) in the German-speaking countries stimulated by the idea that poor health was mainly caused by poor living conditions. This era also featured efforts to create normative instruments to regulate public health.

While the foundation was thus laid in the preceding ages, the concept of modern public health originated in the days of the industrial revolution, when unhealthy working and living conditions associated with mass production machinery led to epidemics and other grave health problems. The spread of epidemics beyond national boundaries was considered a threat to international trade and was therefore discussed at the first international conferences on sanitation. The 11th of these conferences in 1903 led to the creation of the Office International d’Hygiène Publique (International Office of Public Health) in 1907 which would later be associated with the League of Nations. The latter founded another international health organization parallel to the Office International d’Hygiène Publique called the Health Organization of the League of Nations (see also Public Health, International Co-operation). The concept of primary health care for all was first discussed at a conference held by this new organization and later taken up by the United Nations (UN). Also contributing to the recognition of health as a human right (human rights) was the International Labour Organization (ILO), chartered in 1919 and which emphasized work-related health issues such as the industrial use of hazardous or poisonous material.

3.  Post-World War II: United Nations and Human Rights Concept

During and after World War II the ideas of social rights and health as a human right were further refined and internationalized. A generally undisputed milestone in that regard was United States President Franklin D Roosevelt’s Four Freedoms Speech in 1941 in which he proclaimed, inter alia, the essential importance of the ‘freedom from want’ (‘Annual Message to Congress’ [6 January 1941] Records of the United States Senate SEN 77A-H1).

The initial moment for the formulation of the human right to health took place during the UN Conference on International Organization in San Francisco in 1945. At this conference the Brazilian delegation circulated a memorandum which led to a reference to health in Art. 55 UN Charter ; United Nations Charter. In the following year, the World Health Organization (WHO) was founded as the new international health organization under the UN. In the decades following the birth of the UN the human right to health has been recognized by various treaties, conventions, and declaration[s].

B.  International and Regional Codification of the Right to Health

The Human Right to Health is recognized in numerous instruments both at the international and regional levels.

1.  International Level

At the international level, one finds a variety of conventions and treaties along with non-binding declarations and action programmes dealing with the right to health and its implementation.

(a)  UN Charter-Based System

Besides general references to international recognition and protection of human rights, Chapter IX UN Charter, which concerns international economic and social co-operation, specifically states in Art. 55 that the ‘United Nations shall promote:... solutions of international, economic, social, health, and related problems’.

Article 57 UN Charter encourages close relationships between the UN and specialized agencies established by intergovernmental agreements such as the WHO. Health as a main concern of the international community is also mentioned in Art. 62 UN Charter as one of the fields of responsibility of the Economic and Social Council (United Nations, Economic and Social Council [ECOSOC]).

10  The most basic document in the sphere of human rights is the Universal Declaration of Human Rights (1948) (‘UDHR’). When it was adopted, the UDHR was of a legally non-binding nature (see also Soft Law) but has since assumed the status of customary international law for most of its provisions. Article 25 (1) UDHR stipulates that ‘everyone has the right to a standard of living adequate for the health and well-being of himself and his family, including food, clothing, housing and medical care and necessary social services’. Since the adoption of this document, numerous UN institutions and conferences have dealt with or addressed issues of health and have adopted various principles and declarations. For example, the Vienna Declaration and Programme of Action adopted by the Vienna World Conference on Human Rights (1993) alludes to the right to health in its repeated acknowledgment of the importance of health care and protection. Also, the UN Millennium Declaration (United Nations, Millennium Declaration) adopted on 8 September 2000 by the UN General Assembly (United Nations, General Assembly) stresses the importance of health care and prevention of disease by committing to the improvement of maternal and child health and the fight against the Human Immunodeficiency Virus that can lead to Acquired Immunodeficiency Syndrome (‘HIV/AIDS’), malaria, and other major diseases. Accordingly, of the eight UN Millennium Development Goals (‘MDG’), three have a direct health care dimension while Target 17 of MDG No 8 calls for co-operation with pharmaceutical companies in order to provide access to affordable essential drugs in developing countries. Additionally, the following instruments mention health in various contexts: UN General Assembly Resolution 48/104 of 20 December 1993 refers to ‘the right to the highest standard attainable of physical and mental health’ (Art. 3 (f)); UN General Assembly Resolution 46/91 of 16 December 1991 stresses the importance of access to adequate health care ‘to maintain or regain the optimum level of physical, mental and emotional well-being and to prevent or delay the onset of illness’ (Annex para. 11); UN General Assembly Resolution 46/119 of 17 December 1991 focuses on mental health care as one aspect of the right to health; UN General Assembly Resolution S-26/2 of 27 June 2001 promotes international awareness regarding HIV/AIDS; and finally, UN General Assembly Resolution 45/111 of 14 December 1990 and the Standard Minimum Rules for the Treatment of Prisoners of 1977 include many other references to health care and protection (see UN ECOSOC Res 2076 [LXII] [13 May 1977] ESCOR 62nd Session Supp 1, 35).

11  All these instruments and several others of relevance to health have either been adopted or approved by the UN General Assembly or the ECOSOC, yet strictly speaking have no legally binding effect on States or governments. Still, they form an important component within the international movement to promote and protect the physical and mental health of human beings throughout the world.

12  Fundamental guidelines and action programmes have also been produced by UN specialized agencies and institutions (United Nations, Specialized Agencies). First and foremost, the WHO has been instrumental in setting international health standards for the promotion and protection of the right to health. This has been accomplished by either developing health policies, strategies, standards, and recommendations, or by establishing treaties and rules. Unlike other UN specialized agencies which have chosen to put more emphasis on the legal treaty approach, the primarily policy-oriented approach adopted by the WHO has proved very successful. Member States of the WHO have followed the policies, programmes, and recommendations elaborated since 1948, and have contributed to the eradication or near-eradication of many diseases, and have helped to combat major pandemics and endemic diseases. One of the most essential documents springing from the WHO system is the 1978 Declaration of Alma-Ata. This declaration can be considered a milestone concerning the definition of the right to health, albeit on a non-binding basis. Another significant instrument within the WHO system is the 1946 Constitution of the World Health Organization (‘WHO Constitution’). The second recital of the preamble to the WHO Constitution affirms that ‘[t]he enjoyment of the highest attainable standard of health is one of the fundamental rights of every human being without distinction of race, religion, political belief, economic or social condition’. Further instruments of particular significance to the WHO system include the resolutions by the WHO Executive Board and the World Health Assembly, in particular World Health Assembly Resolution 58.3 of 23 May 2005 entitled ‘Revision of the International Health Regulations’ and World Health Assembly Resolution 31.32 of 23 May 1978 entitled ‘Action Programme on Essential Drugs’.

13  Another specialized agency that has opted for the primarily legal approach, the ILO, has over a long time identified health issues as a crucial aspect in the realization of workers’ rights worldwide. The tripartite structure of the organization favours such a legal approach. The organization’s awareness in this context is exemplified by ILO Convention No 155 concerning occupational safety and health, ILO Convention No 161 concerning occupational health services, and ILO Convention No 169 concerning indigenous and tribal peoples. ILO Convention No 169 considers equal but culturally sensitive health care and protection an important factor with respect to indigenous peoples’ labour rights (see also Labour Law, International). Furthermore, Art. 3 (d) ILO Convention No 182 concerning the worst forms of child labour deems children’s health as an essential criterion for the definition of the phrase ‘worst forms of child labour’ (see also Children, International Protection). It must be noted in this context that the ILO conventions are legally binding on the parties of the ILO’s tripartite system, which involve States, labour unions, and employers.

14  An even more recent document, the Universal Declaration on the Human Genome and Human Rights adopted by the General Conference of the United Nations Educational, Scientific and Cultural Organization (UNESCO) in 1997 recognizes the positive potential of genetic research with regard to the improvement of individual health, yet also aims to provide protection against the potential hazardousness of such research.

(b)  Treaty-Based System

15  In contrast to the UN Charter-based system outlined above, the international treaty-based system features several conventions which stipulate legally binding provisions for their respective signatories. The central treaty with regard to the right to health is the International Covenant on Economic, Social and Cultural Rights (1966) (‘ICESCR’) which states that

1. The States Parties to the present Covenant recognize the right of everyone to the enjoyment of the highest attainable standard of physical and mental health. 2. The steps to be taken by the States Parties to the present Covenant to achieve the full realization of this right shall include those necessary for: (a) The provision for the reduction of the stillbirth-rate and of infant mortality and for the healthy development of the child; (b) The improvement of all aspects of environmental and industrial hygiene; (c) The prevention, treatment and control of epidemic, endemic, occupational and other diseases; (d) The creation of conditions which would assure to all medical service and medical attention in the event of sickness. (Art. 12 ICESCR)

16  Other articles in the ICESCR address issues in the context of health, thus contributing to the comprehensive and integrated protection of the human right to health. The legal content of Art. 12 ICESCR, like many of its articles, has been elucidated by the Committee on Economic, Social and Cultural Rights (CESCR) in General Comment No 14 (see also General Comments/Recommendations). The following also relate closely to health: CESCR General Comment No 5 concerning persons with disabilities (see also Disabled People, Non-Discrimination of   ), CESCR General Comment No 6 concerning older persons (see also Age Discrimination), and CESCR General Comment No 15 concerning the right to water (see also Water, Right to, International Protection), as well as CESCR General Comment No 20 on non-discrimination in economic, social, and cultural rights, which also refers to health issues. Although lacking the capacity to generate rights directly, these general comments serve as an interpretation aid for the ICESCR, for States Parties to the ICESCR, and for civil society organizations and thus play a decisive role in the worldwide implementation of the right to health.

17  In addition to the ICESCR a number of other international conventions recognize and promote the right to health. Article 6International Covenant on Civil and Political Rights (1966) (‘ICCPR’) orders States Parties to legally protect every human being’s inherent right to life (Life, Right to, International Protection), a provision which has a direct link to the right to health. Strong implications in terms of health are also included in Art. 7 ICCPR, which bans the application of torture and cruel, inhuman and degrading treatment with particular reference to forced medical or scientific experimentation. The ICCPR repeatedly names the protection of public health as a possible restriction of certain rights. The ICCPR’s treaty body, the Human Rights Committee (‘HRC’), has also published certain general comments that refer in passing to health protection issues, namely: HRC General Comment No 20 concerning the prohibition of torture and cruel treatment or punishment, and HRC General Comment No 21 concerning the humane treatment of persons deprived of liberty.

18  Among the core international human rights instruments the right to health is also recognized in Art. 5 (e) (iv) International Convention on the Elimination of All Forms of Racial Discrimination of 1966 (see also Racial and Religious Discrimination); Arts 11 (1) (f) and 12 Convention on the Elimination of All Forms of Discrimination against Women of 1979 (see also Women, Rights of, International Protection); Art. 24 Convention on the Rights of the Child of 1989; the International Convention on the Protection of the Rights of All Migrant Workers and Members of Their Families of 1990 (see also Migrant Workers); the Convention on the Rights of Persons with Disabilities of 2006; and the Convention against Torture and other Cruel, Inhuman or Degrading Treatment or Punishment of 1984 (see also Torture, Prohibition of   ).

19  In the field of international humanitarian law (Humanitarian Law, International), Geneva Conventions I–IV (1949), in particular Common Art. 3, and its two additional protocols, Geneva Conventions Additional Protocol I (1977) and Geneva Conventions Additional Protocol II (1977), all stress the eminent role health care and protection play in connection with armed conflicts and their consequences.

20  The system of international legal instruments comprises a variety of other specialized treaties, conventions, and declarations with significance for the right to health, the listing of which would go beyond the scope of this overview. But to single out the most recent addition, having direct effect on the realization of the right to health, the WHO Framework Convention on Tobacco Control adopted in 2003, which set up a secretariat and annual conference of the States Parties, has chosen the avenue of legally binding instruments rather than policies and strategies to achieve its aims. The WHO is thus beginning to elaborate further the possibilities of the legal approach alongside its well-tried policy approach.

2.  Regional Level

21  To underscore the importance of human health for every society on all continents the right to health is also recognized and protected by a number of regional human rights instruments.

(a)  Africa

22  In the system of the African Union (AU), the African Charter on Human and Peoples’ Rights (1981) (‘AChHPR’) and the African Charter on the Rights and Welfare of the Child of 1990 recognize the importance of health protection. Article 16 AChHPR stipulates that ‘every individual shall have the right to enjoy the best attainable state of physical and mental health’. The AChHPR also uniquely stresses the importance of individual duties towards families, fellow human beings, and society as a whole. Furthermore, Art. 73 Treaty Establishing the African Economic Community calls for close co-operation among Member States in the promotion of health care as part of a whole chapter dedicated to the field of health care and protection. The treaty also establishes a Committee on Health, Labour and Social Affairs.

(b)  Americas

23  In the Americas the human right to health is to be found in several documents. The legally non-binding American Declaration of the Rights and Duties of Man (1948), was adopted in Bogotá, Colombia. Its Art. 11 recognizes the right to health as follows: ‘Every person has the right to the preservation of his health through sanitary and social measures relating to food, clothing, housing and medical care, to the extent permitted by public and community
resources’. The core human rights instrument with binding effect on States Parties, the American Convention on Human Rights (1969), does not contain the right to health or any other economic, social, or cultural human right, and as such resembles the European Convention for the Protection of Human Rights and Fundamental Freedoms (1950) (‘ECHR’). However, such rights are recognized in the Additional Protocol to the American Convention on Human Rights in the Area of Economic, Social and Cultural Rights of 1988 (‘Protocol of San Salvador’), which states that

1.  Everyone shall have the right to health, understood to mean the enjoyment of the highest level of physical, mental and social well-being and 2. In order to ensure the exercise of the right to health, the States Parties agree to recognize health as a public good. (Art. 10 Protocol of San Salvador)

24  Article 11 Protocol of San Salvador specifically guarantees the right to a healthy environment. Like most additional or optional protocols in the international legal system the Protocol of San Salvador only applies to those States that have separately ratified it. As of 2011, 15 States of the Americas have ratified it. Also worthy of note with regard to health protection are the Inter-American Convention to Prevent and Punish Torture of 1985 and the Inter-American Convention on the Prevention, Punishment and Eradication of Violence against Women of 1994.

(c)  Asia

25  The continent of Asia still lacks a continental or even sub-regional human rights system. Thus, the protection of the right to health is solely a matter of national regulation and policy in the Asian countries. One document that relates to the right to health in the Arab world is the Covenant on the Rights of the Child in Islam as adopted by the Organization of the Islamic Conference (OIC). Article 15 Covenant on the Rights of the Child in Islam states that ‘the child is entitled to physical and psychological care’ and lists a number of concrete features of this entitlement, including: the right to necessary measures to reduce infant and child mortality rates; to preventive medical care; to the control of disease and malnutrition; and to protection from narcotics, intoxicants, and other harmful substances.

(d)  Europe

26  In Europe the right to health is, first and foremost, recognized within the system of the Council of Europe (COE). The basic legal document in this system, the ECHR, predominantly addresses civil and political rights, yet also features some indirect health references, eg Art. 2 ECHR concerning the right to life and Art. 3 ECHR concerning the prohibition of torture. Of more direct relevance for the protection of the right to health is the revised European Social Charter of 1996 (‘ESC’), which obliges States Parties to

undertake, either directly or in cooperation with public or private organisations, to take appropriate measures designed inter alia: (1) to remove as far as possible the causes of ill-health; (2) to provide advisory and educational facilities for the promotion of health and the encouragement of individual responsibility in matters of health; (3) to prevent as far as possible epidemic, endemic and other diseases, as well as accidents. (Art. 11 ESC)

27  The ESC also stresses the importance of health care and protection in several of its provisions on workers’ rights. However, it should be noted that according to Art. 20 ESC, the States Parties have some discretion as to which rights they recognize to be legally binding on them. Other legal instruments worthy of note are as follows: a) COE European Convention on Social and Medical Assistance of 1953, which guarantees foreign nationals without sufficient resources and lawfully present within a Member State of the Council of Europe the same social and medical assistance as a citizen of the relevant Member State; b) COE European Convention for the Prevention of Torture and Inhuman or Degrading Treatment or Punishment of 1987; c) COE Convention for the Protection of Human Rights and Dignity of the Human Being with regard to the Application of Biology and Medicine of 1997, which is the first of its kind and based partly on the premise that the health interests of human beings must come before the interests of science and society.

28  In the sphere of the European Union (‘EU’) Art. 168 Treaty on the Functioning of the European Union (which has substituted Art. 152 Treaty Establishing the European Community) provides for health care and protection as a common goal for the EU Member States. Moreover, the Charter of Fundamental Rights of the European Union (2000), which has become binding after the entry into force of the Lisbon Treaty, protects access to health care and services in its Art. 35, and also refers to questions of health in a number of other provisions.

C.  Content and Scope of the Right to Health

1.  Terminology

29  The international discourse on the human right to health has yet to produce a clear-cut, uniform definition of what exactly the term ‘health’ contains within the concept of international human rights. Different terminology is used by a variety of major institutions and instruments, in particular by the ICESCR and the WHO Constitution. In the first recital of the preamble to the WHO Constitution, health is described as ‘a state of complete physical, mental and social well-being and not merely absence of disease or infirmity’. While this definition is quite vague, it also appears unrealistic and impracticable. Translating this definition into a binding legal right would burden all governments with the impossible task of guaranteeing an almost perfect state of health for every citizen. In an attempt to be more precise, the terms ‘right to health care’ and ‘right to health protection’ have been employed by others. It is difficult to find a clear and simple definition because the concept of health is very complex, encompassing many facets of human life and a variety of dimensions, such as health care and health conditions. According to CESCR General Comment No 14, ‘the right to health embraces a wide range of socio-economic factors that promote conditions in which people can lead a healthy life (at para. 4). Moreover, the CESCR stresses the fact that Art. 12 (1) ICESCR speaks of ‘the highest attainable standard of physical and mental health’ (paras 3–4), taking into account that this standard might depend on economic capacity and capabilities and will hardly ever reach a state in which all persons are entirely healthy.

2.  The Rights-Based Approach and the Human Right to Health

30  While policy programmes and practical guidelines play an essential role in the promotion of health care and protection for all, it is just as important that every human being is able to rely on a legal foundation which provides protection against intrusions upon one’s personal health, and at the same time can serve as a tool to remind governments of their duties. For many years the right to health did not receive the attention it deserved from the international human rights community. This changed in the 1990s with greater attention given to economic, social, and cultural rights generally, and notably to the threat of the spread of HIV/AIDS and other major diseases. In 2000, CESCR General Comment No 14 spelled out in more detail the levels of obligation resting on States Parties to the ICESCR. The committees associated with the Convention on the Elimination of all Forms of Discrimination against Women and the Convention on the Rights of the Child have since come out with further general comments on women and health, and on children’s rights and adolescent health. In 2002, the Commission on Human Rights (United Nations Commission on Human Rights/United Nations Human Rights Council) also appointed Paul Hunt as Special Rapporteur on the right of everyone to the enjoyment of the highest attainable standard of physical and mental health. Ultimately, it is CESCR General Comment No 14 that provides the most comprehensive interpretation of the right to health to date in confirming that the right to health is not a right to be healthy but a right to have access to facilities, goods, services, and conditions that are conducive to the realization of the highest standard of physical and mental health. CESCR General Comment No 14 outlines a framework of norms and obligations that in their ensemble constitute the right to health. It includes references to, inter alia, freedoms, entitlements, non-discrimination and equality, participation, international assistance and co-operation, and outlines modalities of monitoring and accountability.

31  To determine the normative content and scope of the human right to health it is useful to distinguish between, on the one hand, the right to enjoy appropriate health care including the right to control one’s own health and body and, on the other hand, the right to find within a state underlying preconditions for living a healthy life. These underlying preconditions include access to safe and potable water (see also Water, Right to, International Protection), adequate sanitary facilities, an adequate supply of safe and nutritious food (see also Food, Right to, International Protection), housing, healthy occupational and environmental conditions, as well as access to health-related education and information, such as education regarding sexual and reproductive health (see also Education, Right to, International Protection; Reproductive Rights, International Regulation). The right to health should be understood as a dynamic concept in the sense that it is receptive to new medical discoveries, scientific progress, and changing environmental conditions. Nonetheless, the CESCR has laid down a group of interrelated and essential elements which form a measuring stick for governments: availability, accessibility, acceptability, and quality. Guidance––at least for the signatories of the ICESCR––for implementing the right to health can also be found in Art. 12 ICESCR. This non-exhaustive catalogue of issues comprises maternal, child, and reproductive health; healthy natural and workplace environments; the prevention, treatment and control of diseases; and health facilities, goods, and services.

32  Beyond these guiding principles the CESCR emphasizes several topics of major importance to the right to health: the principle of non-discrimination in Arts 2 (2) and 3 ICESCR; a gender-based approach to equal health care and protection; child and adolescent health: the health of senior citizens and of people with disabilities; and cultural sensitivity with respect to indigenous people. As with other rights, the ICESCR allows States to impose certain limitations on the right to health if need be, as long as such limitations are proportional in their application and effect.

33  Altogether, the right to health as stipulated in Art. 12 ICESCR provides an important basis obliging States actively to care for and improve their citizens’ health and to create an environment in which the protection of individual and public health is possible.

3.  Normative Overlap with Other Human Rights

34  As is the case with all international human rights, the right to health cannot be viewed as a provision that is isolated and independent from other internationally guaranteed rights. Accordingly, CESCR General Comment No 14 states that

the right to health is closely related to and dependent upon the realization of other human rights, as contained in the International Bill of Rights, including the rights to food, housing, work, education, human dignity, life, non-discrimination, equality, the prohibition against torture, privacy, access to information, and the freedoms of association, assembly and movement. These and other rights and freedoms address integral components of the right to health. (at para. 3.)

The right to health can indeed serve as an example for the indivisibility as well as the interdependence of all human rights.

4.  Obligations and Core Obligations

35  Ratification of the ICESCR entails a number of legal obligations for States Parties. These obligations have been elaborated upon in CESCR General Comment No 14, which makes clear, moreover, that other actors such as the UN agencies and programmes bear a certain responsibility towards the realization of the international right to health.

(a)  State Obligations

36  According to CESCR General Comment No 14, Art. 12 ICESCR imposes three levels of obligations for States Parties. The first is the ‘obligation to respect’ and ‘requires States to refrain from interfering directly or indirectly with the enjoyment of the right to health’ (CESCR General Comment No 14 para. 33). As a matter of principle, the State has to avoid any action or activity that could hamper the equal enjoyment of access to preventive, curative or palliative health services, eg access to contraceptives, health-related information or traditional preventive care, healing practices, and medicines. The obligation to respect also extends to the right to be free from non-consensual medical treatment, or to the prohibition of State actions that may cause environmental pollution, such as testing nuclear, biological or chemical weapons, or that may resemble punitive measures, eg during armed conflicts.

37  The second is the ‘obligation to protect’ and ‘requires States to take measures that prevent third parties from interfering with article 12 guarantees’ (CESCR General Comment No 14 para. 33). As part of this obligation, States have the duty to: adopt legislation or other appropriate measures to control or at least supervise the privatization of health services; ensure the highest possible standards of education, skill, and ethics for health professionals; and prevent private actors from coercively carrying out traditional practices such as female genital mutilation. In general, the protection of all vulnerable or marginalized groups of society is essential.

38  The third is the ‘obligation to fulfil’ and ‘contains obligations to facilitate, provide and promote’ (CESCR General Comment No 14 para. 33). In contrast to the obligation to respect, this obligation requires the State to become active in the realization of the right to health. In this context the CESCR has stressed the importance of a national health policy which above all pursues the implementation of the right to health within the legal system and provides for immunization programmes, public health infrastructures and an efficient health insurance system.

39  In addition to this triad of obligations, the ICESCR, in accordance with other international instruments, also imposes certain international obligations upon States. The concept of international solidarity and assistance with regard to economic, social, and cultural rights is anchored in Art. 2 (1) ICESCR. In connection with Art. 12 ICESCR, this entails that States, particularly the economically strong ones, should commit themselves to international co-operation. In any case, States are obliged to respect the enjoyment of the right to health in other States which, among other aspects, means that they have to prevent interference by third parties under their jurisdiction or sphere of influence. International solidarity also includes disaster relief and humanitarian assistance in cases of emergency, as well as abstaining from embargo[es] or similar measures on medical goods and equipment.

40  Another key aspect in the context of Art. 2 (1) ICESCR is the obligation to progressively implement the rights embedded in the ICESCR, which, in turn, strictly prohibits any retrogressive measures, for which no plausible explanations can be given, such as natural catastrophes or emergencies.

(b)  Core Obligations

41  Like all ESC rights, the right to health is basically subject to progressive realization. However, the right to health as set forth in Art. 12 ICESCR features some core elements not dependent on State resources. This corresponds with CESCR General Comment No 3, which established the principle of core obligations to ensure the satisfaction of, at the very least, minimum essential levels of each of the rights enunciated in the ICESCR. In particular, the determination of the core content of the right to health can be traced back to the Declaration of Alma-Ata to which the CESCR expressly subscribes in General Comment No 14. Accordingly, governments are, without exception, obliged to

(a) ensure the right of access to health facilities, goods and services on a non-discriminatory basis, especially for vulnerable or marginalized groups, (b) to ensure access to the minimum essential food which is nutritionally adequate and safe, to ensure freedom from hunger to everyone, (c) to ensure access to basic shelter, housing and sanitation, and an adequate supply of safe and potable water, (d) to provide essential drugs, as from time to time defined under the WHO Action Programme on Essential Drugs, (e) to ensure equitable distribution of all health facilities, goods and services, and (f) to adopt and implement a national public health strategy and plan of action, on the basis of epidemiological evidence, addressing the health concerns of the whole population. (CESCR General Comment No 14 para. 43)

42  This has since been supplemented by CESCR General Comment No 15 on the right to water which elaborates these fundamental right to health issues in the context of guaranteeing an adequate standard of living (Standard of Living, Promotion of   ), as laid down in Arts 11 (1) and 12 (1) ICESCR. Of comparable priority are: reproductive, maternal, and child health care; immunization against the major infectious diseases occurring in the community; efforts to prevent and control epidemic and endemic diseases; the provision of education and access to information regarding main health problems relevant to the community; as well as the organization of appropriate training for health personnel. Core obligations require States to demonstrate that every effort has been made to use their available resources to meet those obligations.

(c)  Role of other Actors

43  The full realization of the right to health can only be achieved through joint efforts by all relevant national and international actors. This includes specialized UN agencies and programmes as well as civil society organizations, families and local communities, health professionals, and the private business sector (see also Non-Governmental Organizations; Human Rights, Role of Non-Governmental Organizations). Even though all these actors are not direct addressees of human rights norms, they all have some responsibility concerning the realization of the right to health. It is up to the States to provide an environment that enables them to optimize their efforts.

D.  International and Regional Institutions, Initiatives, and Practice

1.  International Level

44  On the international level the most prominent institution within the UN Charter system is the WHO, designed to serve as the United Nations’ specialized agency for health. The WHO’s objective, as set out in its constitution, is the attainment by all peoples of the highest possible level of health. The WHO is governed by 193 Member States through the World Health Assembly, which is composed of representatives from the WHO’s Member States. The main tasks of the World Health Assembly are to approve the WHO programme and budget, and to decide major policy questions. The WHO also features an executive board composed of 34 members technically qualified in the field of health. Members are elected for three-year terms. The main functions of the board are to give effect to the decisions and policies of the World Health Assembly. In order to implement its programmes in the field, the World Health Assembly has its own secretariat and runs six regional offices. The Organization is headed by the Director-General, who is appointed by the World Health Assembly on the nomination of the executive board. According to its own assessment, six priorities are currently on the WHO’s agenda: a) promoting development; b) fostering health security; c) strengthening health systems; d) harnessing research, information, and evidence; e) enhancing partnerships; and f) improving performance (see the official website of the WHO).

45  Another UN entity with special focus on health issues is the Joint United Nations Programme on HIV/AIDS (‘UNAIDS’). Furthermore, major institutions such as the Food and Agriculture Organization of the United Nations (FAO), the World Food Programme (WFP), the ILO, and the United Nations Development Programme (UNDP) dedicate themselves to questions of health care and protection.

46  Finally, in the realm of human rights bodies the efforts by the CESCR to promote the right to health are supplemented by the work of the Office of the High Commissioner for Human Rights (Human Rights, United Nations High Commissioner for [UNHCHR]), the various other treaty bodies (Human Rights, Treaty Bodies), and the newly constituted Human Rights Council that replaces the Human Rights Commission. In the context of the Human Rights Council, the Special Rapporteur on the right of everyone to the enjoyment of the highest attainable standard of physical and mental health plays a particularly important role. The Special Rapporteur is authorized to undertake country and other visits, transmit communications to States with regard to alleged violations of the right to health, and to submit annual reports on the activities carried out under the mandate to the Human Rights Council and the UN General Assembly.

2.  Regional Level

47  The WHO is also active on the regional level through its six regional offices. The regional office for Africa is based in Congo-Brazzaville, the regional office for the Americas is based in Washington, the regional office for South East Asia is based in New Delhi, the regional office for Europe is based in Copenhagen, the regional office for the Eastern Mediterranean is based in Cairo, and the regional office for the Western Pacific is based in Manila. Taking one example, the Washington-based regional office for the Americas is called the Pan-American Health Organization (‘PAHO’). The PAHO’s essential mission is to strengthen national and local health systems and improve the health of the peoples of the Americas. PAHO promotes primary health care strategies in order to extend health services to all and to increase efficiency in the use of scarce resources. It assists countries in fighting old diseases that have re-emerged, such as cholera, dengue, and tuberculosis, and new diseases such as the spreading AIDS epidemic; it provides technical co-operation, including education and social communications support; it promotes work with non-governmental organizations; and it provides support for programmes to prevent transmission of communicable diseases. The PAHO is also involved in the prevention of chronic diseases such as diabetes and cancer, which are increasingly affecting the populations of developing countries in the Americas.

48  In the Americas the Inter-American Commission on Human Rights (IACommHR) located in Washington, and the Inter-American Court of Human Rights (IACtHR) located in San Jose, Costa Rica, also deal with economic, social, and cultural rights.

49  In Europe the COE has its own health division designed to help translate into practice the COE’s commitment with respect to the right to health protection as a fundamental social right. The health division is steered by the European Health Committee, established in 1954 to encourage closer European co-operation concerning the promotion of health. As an intergovernmental body the European Health Committee is composed of government experts and representatives of interested parties. One of its main activities is to generate expertise towards a deeper understanding and greater awareness with regard to health care and protection. Also of particular significance are the health-related recommendations by the COE’s Committee of Ministers which stimulate the promotion of health issues across Europe. Another entity relevant to the protection of the right to health in Europe is the Commissioner for Human Rights mandated by the COE Resolution on the Council of Europe Commissioner for Human Rights in Art. 1 (1) to ‘promote education in, awareness of and respect for human rights, as embodied in the human rights instruments of the Council of Europe’. The Commissioner is nominated by the Committee of Ministers and elected by the Parliamentary Assembly of the Council of Europe (Parliamentary Assemblies, International).

50  Within the EU, the promotion of health care and protection is administered by the European Commission which, as of 2006, includes a Commissioner for Health and Consumer Protection.

51  In Africa, the African Commission on Human and Peoples’ Rights, acting as a semi-judicial body with regard to the rights anchored in the AChHPR, has rendered decisions with reference to the right to health. For example, in Purohit and Moore v The Gambia, the African Commission on Human and Peoples’ Rights ordered the Gambian Government to repeal national legislation regulating the treatment of mentally ill persons and to provide new legislation compatible with the provisions of the AChHPR and international standards for the protection of mentally ill or disabled persons.

E.  Assessment and Outlook

52  In the years and decades to come, questions surrounding health care, health conditions, and the protection of everyone’s right to health will continue to play a prominent role in national and international efforts to improve the lives of especially those people who suffer under severe living conditions and whose rights are neglected. In particular, the right to health will be increasingly intertwined with the fight against extreme poverty and hunger, with the development of further regimes to regulate intellectual property, technological patents, scientific and genetic research, and with issues of environmental protection. For instance, it will be interesting to observe whether the right to health and the Agreement in Trade Related Aspects of Intellectual property Rights, Including Trade Counterfeit Goods Agreement on Trade-Related Aspects of Intellectual Property Rights (1994) can, to a greater extent, be harmonized in order to make drugs, especially those which are essential for the battle against devastating epidemics such as HIV/AIDS, available to everyone in need. Along with international property law, international trade law will have to integrate issues related to health care and protection into its set of rules.

53  Another aspect that will continue to be at the centre of the debate and which signals dangers for the universal realization of the right to health is the concept of privatization, whether it happens directly in the field of health care or on the periphery of the right to health, such as in the cases of access to water, education, and use of infrastructure. It will be incumbent upon the individual States and the international community to find the right balance between private economic interests and basic human needs. The CESCR as the ICESCR monitoring body has regularly addressed these issues and emphasized that the policy choices involved are left to the discretion of States, but that the human rights effects of actual policy choices will be closely monitored, in accordance with Art. 12 ICESCR. Most States now accept that the right to health is a fundamental human right, indispensable for leading a life in dignity (Human Dignity, International Protection).

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