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s.Two Implementation and Accountability, 5 Translating International Law into Domestic Law, Policy, and Practice

Gillian MacNaughton, Angela Duger

From: Foundations of Global Health & Human Rights

Edited By: Lawrence O. Gostin, Benjamin Mason Meier

From: Oxford Public International Law (http://opil.ouplaw.com). (c) Oxford University Press, 2021. All Rights Reserved.date: 28 November 2021

(p. 113) Translating International Law into Domestic Law, Policy, and Practice

The modern international human rights system was established in 1945 under the Charter of the United Nations (UN) and subsequent human rights treaties adopted by the UN General Assembly. Yet, each state is a sovereign entity that has duties under international human rights law only to the extent that it has agreed to be bound by them. International human rights law—with few exceptions—imposes obligations only on those countries that have voluntarily become parties to a human rights treaty. As states must agree to be bound, the application of international law varies by country. Moreover, international human rights law primarily defines the duties of states toward the people under their jurisdiction. Therefore, people must look to their own governments to implement human rights obligations and to provide the means to obtain remedies when those rights are violated. The modern human rights system is firmly state centered, and therefore, it is important for public health scholars and practitioners to consider how international human rights law is translated into domestic law, policy, and practice to improve public health.

For several decades after the UN was established, the organization and its member states focused their human rights efforts on developing human rights declarations, treaties, and institutions. In recent decades, however, there has been a shift from defining and conceptualizing human rights in international law toward implementing human rights on the ground and making them real in people’s lives. This shift toward implementation has led UN agencies (particularly the Office of the High Commissioner for Human Rights (OHCHR) and the World Health Organization (WHO)), as well as nongovernmental organizations (NGOs), to work with states to implement human rights to advance public health. International declarations, treaties, and mechanisms are essential foundations of the modern human rights system, but the time has come to operationalize these rights to improve health and well-being in all UN member states.

Laying the foundation for subsequent chapters in this section, this chapter provides an overview of the means by which international human rights law is translated into domestic law, policy, and practice. Part I considers the evolution of international legal obligations to assure domestic implementation and then explains four general approaches to secure human rights at the domestic level—through education, policymaking, judicial and quasi-judicial enforcement, and international processes. In Part II, the chapter examines the roles of national governments and subnational governments, as well as domestic mechanisms for translating international law into the domestic sphere. It also outlines two theories—internalization and acculturation—to explain the influence of government interaction in international lawmaking, (p. 114) interpretation, and enforcement on the domestic culture of human rights. Part III discusses the crucial role of NGOs in human rights implementation, examining the theory and practice of NGO efforts at the local, national, and international levels. The chapter concludes that public health actors must understand these complex processes of domestic implementation of international human rights law in order to entrench health-related human rights at national and subnational levels and fully engage in building a domestic culture favorable to health and human rights.

I.  Evolving Obligations and Approaches to Domestic Implementation of Human Rights

When UN Secretary-General Kofi Annan spoke to the UN Commission on Human Rights in 2005, he highlighted a shift in human rights—from the “era of declaration” to the “era of implementation”:

For much of the past 60 years, our focus has been on articulating, codifying and enshrining rights. That effort produced a remarkable framework of laws, standards and mechanisms—the Universal Declaration, the international covenants, and much else. Such work needs to continue in some areas. But the era of declaration is now giving way, as it should, to an era of implementation (UN Secretary-General 2005).

The specific obligations of states to implement international human rights law in their jurisdictions are detailed under international law, which specifies four broad approaches to translate international human rights into public health realities: education, policymaking, litigation, and international monitoring.

A.  International Obligations to Implement Human Rights

Under the UN Charter, all UN member states pledge to promote “universal respect for, and observance of, human rights and fundamental freedoms for all without distinction as to race, sex, language, or religion” and to take action to achieve solutions to health problems (UN 1945, arts. 55 and 56). Other than non-discrimination, however, the Charter does not spell out specific human rights. These rights are enumerated, as elaborated in Chapter 1, in the 1948 Universal Declaration of Human Rights (UDHR). The UN General Assembly proclaimed the UDHR “as a common standard of achievement for all peoples and all nations, to the end that every individual and every organ of society, keeping this Declaration constantly in mind, shall strive by teaching and education to promote respect for these rights and freedoms” (UN General Assembly 1948, preamble). It also recognizes the importance of education directed “to the strengthening of respect for human rights and fundamental freedoms” (Ibid., art. 26(2)).

The UDHR has had remarkable success as a tool for human rights education. To date, the UDHR has been translated into over 500 languages, making it possible for the UDHR to be used for human rights education in many countries and localities around the world. The UDHR has played and continues to play a crucial role in the (p. 115) translation of international human rights norms and principles into a domestic culture of human rights—as an educational tool and as a guarantor of human rights education. Yet, the UDHR is not legally binding and does not obligate states to implement specific rights in domestic law, policy, and practice. The UDHR was thereafter followed by two covenants, as discussed in Chapter 2, which are legally binding on those states that have ratified or acceded to them. These treaties impose obligations upon states to provide for judicial, administrative, and legislative means to realize human rights for all.

The International Covenant on Civil and Political Rights (ICCPR) requires states “to adopt such legislative or other measures as may be necessary to give effects to the rights recognized in the present Covenant” (UN General Assembly 1966a, art. 2(2)). Additionally, the ICCPR requires states to ensure that any persons claiming a violation of their rights have access to a competent authority that can order an effective remedy. Thus, while the ICCPR leaves it to the country to decide on “legislative or other measures” to give effect to the rights in the Covenant, the government must provide a judicial, administrative, or legislative complaints mechanism and an effective remedy for any violations. The ICCPR also obligates states to submit reports regularly to a human rights treaty body, the Human Rights Committee, on the measures they have taken to implement the ICCPR and the progress they have realized in the enjoyment of human rights. This review process encourages countries to collect data on their progress and to engage with civil society where improvements should be made (Langford and Fukuda-Parr 2012).

Similarly, the International Covenant on Economic, Social and Cultural Rights (ICESCR), which enshrines the right to the highest attainable standard of physical and mental health, calls upon states parties “to take steps . . . with a view to achieving progressively the full realization of the rights recognized in the present Covenant by all appropriate means, including particularly the adoption of legislative measures” (UN General Assembly 1966b, art. 2(1)). States must use legislation and “all appropriate means” of translating the ICESCR into domestic law, policy, and practice. Although the ICESCR has no provision requiring a domestic complaints mechanism, the Committee on Economic, Social and Cultural Rights (CESCR), which monitors state implementation of the ICESCR, has indicated that judicial remedies are necessary for violations of some rights, such as non-discrimination, fair wages, union activity, and universal free primary education. The CESCR has also found that other implementation measures might be appropriate, including “administrative, financial, educational and social measures” (ECOSOC 1990, para. 7). Thus, countries are obligated to employ a variety of measures “to move as expeditiously and effectively as possible” toward the full realization of all rights in the ICESCR (Ibid., para. 9). Finally, like under the ICCPR, states are required to report regularly to the CESCR on the progress that they have made in implementing the Covenant.

These rules of international law establish the basic obligations of national governments to translate international human rights norms and principles into domestic law, policy, and practice. Through these rules, first in the UN Charter and the UDHR and then later in the two covenants and the subsequent general comments of the human rights treaty bodies, the obligations for domestic implementation have evolved, and they continue to develop through their interpretation and operationalization (Green and Mattsson 2016).

(p. 116) B.  Domestic Approaches to Human Rights Implementation

The international law on domestic implementation of human rights standards and principles spells out four mutually supportive approaches for the full realization of human rights: (1) human rights education, (2) policymaking, (3) judicial and quasi-judicial remedies, and (4) engagement with international human rights mechanisms.

1.  Human Rights Education

The human rights education approach is based on the understanding that people must know their rights to be empowered to claim them. Indeed, some people refer to the human rights education approach as the “empowerment approach”:

When people know they have a right not to be discriminated against, to equal access to health services, to be treated with dignity, and that provisions of essential services is a right, not an arbitrary act of charity, they can act individually or as part of groups and movements. Such action can change social norms, practices and distribution of power, within and between communities and countries (Williams, Blaiklock, and Hunt 2020, 9).

Human rights education involves teaching, learning, training, and sharing information that contributes to building a culture of human rights. Beyond simply acquiring knowledge about human rights laws and mechanisms of enforcement, human rights education also involves instilling values and behaviors that respect and promote human rights (UN General Assembly 2012). It is thus a “transformative pedagogy” that “holds the potential for altering the power structure behind most forms of oppression and repression” (Marks 2008, 135). Everyone has the right to human rights education, and the government has an obligation to deliver it, including by ensuring that human rights is part of the formal education curriculum. In addition to formal education, governments bear obligations to implement public education campaigns, raising general awareness of human rights, and to provide specific training in human rights for all government employees, especially law enforcement officials, judges, lawyers, prison officials, health professionals, social workers, teachers, and others who exercise power over vulnerable people (UN Human Rights Council 2010).

2.  Policymaking

The policy approach involves the application of human rights norms and principles in all policymaking processes and at all levels of government to ensure that all policies, programs, and practices respect, protect, and fulfill human rights. As discussed in Chapter 4, these policymaking processes should be transparent and participatory, allowing affected populations to voice their opinions and influence policy decisions. Moreover, using a rights-based approach to assess policy proposals means considering the impact that the policy proposal may have on universality, equality, non-discrimination, interdependency, and other core human rights principles (Williams, Blaiklock, and Hunt 2020). Indeed, to comply with their international human rights obligations, governments are encouraged and may even be obligated to undertake human rights impact assessments of proposed policies to predict the potential (p. 117) consequences of policies and ensure that they do not adversely impact any human rights (MacNaughton and Hunt 2009).

Case Study: Human Rights Impact Assessment of Obstetric Care for Undocumented Pregnant Women

In the Netherlands, the Alien Law of 2000 provided that undocumented persons (non-citizens) were entitled to “medically necessary care.” In practice, however, this law did not cover preventative care, which excluded obstetric care for undocumented women during pregnancy. To address this health harm, a 2007 bill was proposed that would (among other changes to the health insurance law) provide 80 percent coverage of the cost of health care, including such preventative care. To assess the potential impacts of this bill, a human rights impact assessment was carried out using the Health Rights for Women Assessment Instrument (HeRWAI) developed by the NGO Aim for Human Rights. The researchers used HeRWAI to examine the government’s obligations under international human rights law and the government’s capacity to implement these obligations, concluding that the Dutch government had an obligation to realize the right to health under international human rights treaties and that it had the capacity to meet those obligations. Comparing the government’s obligations and capacities to the proposed policy, however, they found that the proposed policy would negatively impact the availability, accessibility, and quality of obstetric care for undocumented women. Using the results of this human rights assessment, NGOs were able to successfully lobby the government to amend the policy to cover 100 percent of obstetric care for undocumented women. The researchers made additional recommendations based upon this assessment to align national policy with human rights obligations, including training all midwives to work with undocumented patients and developing a plan for monitoring implementation of the policy.

Beyond assessing the impact of proposed policies, governments should also undertake rights-based budget analysis to ensure that their budgets—revenues, allocations, and expenditures—align appropriately with their human rights obligations (OHCHR and IBP 2017). Finally, after adopting policies or launching programs or projects, governments must monitor the impact over time and take any actions necessary to modify policies, programs, and practices where they undermine human rights or where they have the potential to further enhance the enjoyment of human rights (Getgen and Meier 2009).

3.  Judicial and Quasi-judicial Remedies

The judicial approach comes into play when there are human rights violations. People must be able to turn to domestic courts, administrative tribunals, human rights commissions, or other authorities to bring complaints and obtain remedies (Yamin and Gloppen 2011). Facilitating accountability for human rights implementation, thousands of cases involving violations of the right to health have been decided by courts around the world, which have granted individuals a wide variety of remedies and have also (p. 118) catalyzed health policy reforms in accordance with international human rights norms and principles (Flood and Gross 2014). In the past, human rights advocates often focused on violations—and therefore the judicial approach—rather than on proactive education and policy measures to implement human rights and enhance the enjoyment of human rights and prevent violations. Today, however, it is recognized that all of these approaches are interconnected—complementing each other to effectively promote and protect human rights.

4.  Engagement with the International Human Rights System

National governments also interact with the international human rights system to facilitate accountability for the implementation of international human rights law at the domestic level. While international human rights law depends upon states to translate international norms, principles, and standards into domestic law, policy, and practice, international mechanisms monitor and review the progress of states in carrying out these obligations. In addition to reporting to the human rights treaty bodies, all UN member states participate in the Universal Periodic Review (UPR), which requires reporting to the Human Rights Council every four years on progress in realizing all their international human rights obligations. The UPR involves human rights education, as the government and NGOs collect information to submit to the UN Human Rights Council, disseminating this information to the public through their reports (Bueno de Mesquita, Fuchs, and Evans 2018). The UPR monitors the impact of policies and makes recommendations for policymaking processes and outcomes. Further, the UPR is quasi-judicial in that the state appears before the Human Rights Council to present its case, and then the Council issues recommendations. Through these monitoring and review processes, the international human rights system interacts with and supports national governments in implementing international human rights law through domestic law, policy, and practice.

II.  State Actors and Mechanisms for the Implementation of Health-Related Human Rights

The implementation of international human rights through domestic law, policy, and practice is a complex and dynamic process involving all levels of government and all four approaches to domestic implementation. Actions taken by governments at the national level, at the subnational level (including state, province, territory, and local levels), and in engagement with international actors and processes all influence the culture of health-related human rights in the domestic sphere.

A.  National Level Government Actors and Mechanisms

At the national level, the implementation of human rights—through human rights education, policymaking, and judicial approaches—is solidified by the constitutional recognition of these rights. A new generation of national constitutions explicitly recognizes an enforceable right to health, opening the possibility to hold the state accountable at all (p. 119) levels of governance for the protection and realization of the right to health—through judicial and quasi-judicial processes. About one-third of countries now explicitly recognize the right to health in their national constitutions, and a majority recognize a right to public health, a right to medical care services, or some health-related rights for vulnerable or minority groups (Heymann et al. 2013). As most countries now recognize some form of health-related human rights, cases challenging government actions or inactions have been successful in the courts of many of these countries (Yamin and Gloppen 2011). Even in countries where constitutions do not recognize justiciable health-related human rights, some courts have interpreted non-justiciable provisions of their constitutions, such as general principles on the importance of health, to be justiciable.1

Where constitutions lack explicit health-related rights provisions or when litigating health-related rights has not proven successful, lawyers and activists have successfully pushed courts to interpret recognized civil and political rights to address health. Advocates have successfully brought cases alleging: violations of the right to privacy to gain access to contraception, abortion, and health data (or to limit the public release of health data); violations of the prohibition against torture in response to the lack of health treatment for prisoners or persons with disabilities; violations of the right to life for the denial of health care; and violations of the right to be free from discrimination for a range of health-related rights violations (Yamin and Gloppen 2011). Through creative strategies, advocates and lawyers have advanced health-related rights, relying on explicit health-related rights provisions in constitutions when possible and otherwise resorting to expanded interpretations of civil and political rights (Meier et al. 2012).

Beyond national constitutions, the development of national statutes and policies that are guided by health-related human rights norms and principles have become central to the domestic implementation of international human rights law. National health policies or strategies that are either linked to the constitutional recognition of the right to health or guided by the international human right to health can influence the development of rights-based national health systems, as seen following the adoption of the 2010 Constitution of Kenya.

Case Study: Policy Reforms Following the 2010 Constitution of Kenya

In 2010, Kenya adopted a new national constitution, which includes an affirmative right to health as well as provisions on health-related rights for vulnerable, marginalized, and minority populations. The Constitution thus provides that every person has the right “to the highest attainable standard of health,” which includes (p. 120) an explicit right to healthcare services, including for child health and reproductive health care, and also adds that “[a] person may not be denied emergency medical treatment.” Focused on equitable access to underlying determinants of health, the Constitution provides that “the State shall put in place affirmative action programmes designed to ensure that minorities and marginalised groups . . . have reasonable access to water, health services and infrastructure.” The 2010 Constitution also includes provisions that devolve powers to subnational governments, which, together with the health-related rights provisions, have guided the formulation of rights-based national health policies, including the Kenya Health Policy 2014–2030. This Policy provides detailed guidance for government officials to ensure that health policy is decentralized to meet local needs—in compliance with constitutional provisions on health-related rights. Kenya thereafter adopted the 2017 Kenya Health Act to codify the Kenya Health Policy 2014–2030 in national legislation. The Health Act recognizes the right to health and requires the government to implement the rights in the Constitution. Complementing the Kenya Health Policy, which discusses linkages with international development policies, Kenya is now working to meet the Sustainable Development Goal targets on health as human rights obligations, showing early progress on access to maternal and child health care and improvement of public health outcomes.

Where the right to health does not exist in a national or subnational constitution, it may be articulated in statutes, as is the case in Israel, where health-related human rights are enumerated in the National Health Insurance Law and the Patient Rights Law (Flood and Gross 2014). Even if the right to health exists in a constitution, the provisions are often abstract guarantees, and legislative details are necessary to make these rights meaningful. For example, in the Netherlands, the constitution obliges the state to “promote public health,” but the articulation of specific entitlements to health care and determinants of health did not occur until the 2006 Health Insurance Act (Ibid.).

To oversee domestic efforts to protect and promote human rights, legislation in many countries has established national human rights institutions (NHRIs), such as a human rights commission or a human rights ombudsperson. These national administrative mechanisms—providing citizen participation forums, human rights monitoring, evaluation systems, and grievance mechanisms—are integral to the implementation and accountability of health-related human rights at the domestic level. The powers of such NHRIs vary by country, but their mandates may include “recommending policy or legislative changes, handling complaints, carrying out investigations, ensuring the ratification and implementation of international human rights treaties, and providing training and public education” (OHCHR and WHO n.d., 34). For example, the National Human Rights Commission of India works extensively on the right to health, participating in public hearings, providing presentations on specific cases, and engaging with right to health cases before the courts (National Human Rights Commission India 2016). These NHRIs employ all four approaches to the domestic implementation of human rights, making them critical national actors in the realization of health-related human rights (Goodman and Pegram 2011).

(p. 121) B.  Subnational Level Government Actors and Mechanisms

Complementing national implementation efforts, subnational governments—including state, province, or territory, as well as local governments (e.g., county, city, town, prefecture, district, borough, parish, municipality, and village)—bear corresponding obligations to implement human rights for public health promotion. In structuring subnational implementation efforts, these governments may have their own constitutions, legislation, regulations, human rights mechanisms (commissions or ombudsperson offices), administrative processes, and service delivery that can influence the realization of health-related human rights.

Like national constitutions, state or provincial constitutions may recognize health-related human rights, thereby creating a basis for rights-based policymaking and rights-based judicial enforcement at the subnational level. The relation between national and subnational governments differs by country, and their respective authorities may dictate which level of government implements health-related rights, as seen in countries with constitutional or legislative mandates that decentralize authority or devolve powers to the subnational level (Davis 2008).2 This second tier of government may adopt health-related legislation, establish a health department, or develop human rights institutions, and subnational courts may serve as the ultimate decision-makers on issues of subnational law. For example, in the United States, each state has its own constitution and its own supreme court, which is the ultimate decision-maker on issues of state constitutional and statutory law. Depending on the level of decentralization, there can be substantial subnational differences in the enjoyment of health-related rights across states, provinces, or districts within a country.

Local governments are the most community-based form of governance, with direct influence over public health through local health legislation, a local health department, and local health programs. Among other health-related public services, local governments often provide water and sanitation services, run education and childcare programming, and provide subsidized housing among many other public services. As they are closely engaged with the communities they govern, local governments are well situated to implement human rights in policy and practice, creating local-level human rights accountability mechanisms through local ombudspersons, consumer complaints boards, local health boards, or non-discrimination agencies (UN Human Rights Council 2015).3 The implementation of human rights norms through health policymaking, service delivery, and administrative practices at the local level has the potential to improve governance and rights realization. To mainstream a rights-based approach to health, human rights principles can also be incorporated into local planning, guide management practices of the local government, provide frameworks for monitoring progress on social rights realization, and catalyze public participation and engagement mechanisms (Soohoo 2016).

(p. 122) One approach to building a culture of human rights at the local level is promoted by the international “human rights cities” movement. A human rights city is defined as both a local community and a sociopolitical process “where human rights play a key role as the fundamental values and guiding principles” (World Human Rights Cities Forum 2011, para. 3). Human rights cities come in many different forms and utilize different frameworks to guide their local policymaking in line with international human rights norms and principles. Some human rights cities employ the framework established by the NGO The People’s Movement for Human Rights Learning (PDHRE), which emphasizes participatory community-based research, the development of a representative steering committee, a plan of action, and knowledge sharing (Marks, Modrowski, and Lichem 2008).4 Other human rights cities have employed the Gwangju Guiding Principles, adopted at the World Human Rights Cities Forum in 2014, which emphasizes civic participation, human rights education, the creation of implementation mechanisms, and national and international networking. Many human rights cities also participate in United Cities and Local Government, a worldwide network of cities and local government associations, which seeks to increase government engagement with human rights law (Oomen and Baumgärtel 2014). Aside from following the human rights cities models, some cities have sought to implement international human rights treaties directly. For example, San Francisco adopted the Convention on the Elimination of Discrimination Against Women (CEDAW) as a local ordinance in 1998, establishing a CEDAW task force to conduct gender analysis on city policy and practice and thereafter launching the Cities for CEDAW movement.

C.  Government Engagement with International Level Actors and Mechanisms

These domestic actors—both national and subnational governments—engage with international actors and processes to influence the domestic implementation of human rights norms and principles. A wide range of international actors can influence domestic implementation, including: other states; UN bodies (e.g., treaty bodies, special rapporteurs, Human Rights Council, General Assembly, Security Council); international organizations (e.g., WHO, World Bank, OECD); supranational organizations (e.g., European Union); international or supranational judicial bodies (e.g., International Court of Justice, European Court of Human Rights, Inter-American Court of Human Rights); international NGOs (e.g., ESCR-Net, Human Rights Watch, Amnesty International); foundations (e.g., Gates Foundation, Clinton Foundation); (p. 123) civil society actors (e.g., labor unions and religious associations); and transnational corporations (e.g., pharmaceutical companies). These actors engage in a broad array of international processes, including formal lawmaking processes (e.g., treaties, trade agreements), policymaking processes (e.g., resolutions, guidelines, protocols), judicial review, review by human rights bodies, diplomatic negotiations, media engagement, advocacy, and mobilization.5 Focusing on this international engagement, scholars have advanced two theories to explain the influence of government participation in international processes of lawmaking, interpretation, and enforcement on their domestic implementation of human rights: (1) internalization and (2) acculturation.

The theory of internalization posits that state engagement in international legal processes influences the state to internalize international law into domestic norms. When states engage with the transnational process of lawmaking—the process by which international law is made, interpreted, and enforced—it not only binds states internationally to comply with the new law, but through the dynamic process of lawmaking, the state internalizes the new international norm. This transnational legal process is “normative, dynamic, and constitutive,” wherein: each transaction “generates a legal rule which will guide further transnational interactions between the parties; future transactions will further internalize those norms; and eventually, repeated participation in the process will help to reconstitute the interests and even the participants in the process” (Koh 1996a, 2646). Thus, domestic actors are not just externally coerced into complying with international law, but rather, through repeated interactions with transnational actors and participation in the legal processes of developing international law, states internalize international legal norms within their own domestic systems (Koh 1996b). For example, as states participate in developing global health standards, many voluntarily implement the global standards domestically, as seen in the voluntary incorporation of global public health standards on road safety and iodized salt into national policies. The transnational legal process therefore promotes the interaction, discussion, and internalization of international human rights norms into domestic law, policy, and practice, even if the state may be resistant to implementing the international human rights obligations.

Closely related to the theory of internalization is the theory of acculturation. This theory posits that international actors and other states can influence state implementation of international human rights law through either persuasion, coercion, or acculturation. Through persuasion, the state is convinced to adopt the international law domestically, and through coercion, the state is forced to adopt the international law domestically. In contrast to these two approaches, acculturation is a process by which social interactions induce state behavioral change through pressure to conform (Goodman and Jinks 2013). Acculturation occurs not as a result of the rule but rather as a function of social relations between individual actors. By engaging in the international system, a state participates in the beliefs and behavioral patterns of the international (p. 124) culture, thereby influencing the state’s social environment as well as inducing behavior change. Unlike persuasion or coercion, the state may not initially internalize the international norms completely through acculturation, nor may it be willing to adopt the international norms domestically. Yet, the unwilling state engages in efforts to maximize its status at the international level by appearing to accept international law and by mimicking other states. For example, although many states were long resistant to the implementation of reproductive rights, they continued to participate in international debates as reproductive rights were expanded and clarified, and over time, this international engagement has impacted certain states in their domestic approach to implementing human rights for public health (UNFPA 2019).

Thus, participation in the international human rights system can impact the domestic culture of human rights, even where that implementation is neither direct nor immediate. Through the international process, states may ultimately internalize international law domestically, if only as an unintended consequence of efforts to gain the international status afforded to those who realize health-related human rights.

III.  The Role of Nongovernmental Organizations in Human Rights Implementation

Beyond government actors, human rights NGOs have become crucial in influencing the implementation of health-related human rights in the domestic sphere. Theories of NGO influence explain that while NGOs work on domestic issues, they also collaborate across international borders to support and legitimize each other’s claims, to advocate through both top-down and bottom-up approaches, and to amplify each other’s work. Applied in practice, NGOs utilize a variety of accountability mechanisms to ensure that states are implementing health-related human rights, employing advocacy to influence human rights education, policymaking, judicial and quasi-judicial processes, and engagement with international human rights mechanisms.

A.  Theories of NGO Influence

Two closely-related political theories seek to explain how NGOs influence state implementation of and adherence to international human rights law. The boomerang theory posits a system by which NGOs in one country connect with those in another country, requesting aid in influencing state behavior where the domestic actors are unable, for a variety of reasons, to influence the state directly. Through these connections, the transnational or international allies apply pressure from outside the state at the same time that domestic NGOs seek to change state behavior from within. It is the “triangulation” of the state, domestic NGOs, and transnational networks that creates a boomerang effect upon the state’s behavior (Keck and Sikkink 2014). These transnational networks “can ‘amplify’ the demands of domestic groups, pry open space for new issues, and then echo these demands back into the domestic arena” (Keck and Sikkink 1999, 93).

Similarly, the spiral model involves the same triangulation of actors but recognizes that the interactions are more complex and dynamic, and the process of influence is (p. 125) longer term (Sikkink 2005). Under the spiral model, transnational actors undertake three tasks: (1) bringing international attention to states violating human rights; (2) empowering and legitimating the claims of domestic human rights advocates and mobilizing additional domestic advocacy; and (3) seeking accountability by exerting both top-down and bottom-up grassroots pressure upon the state (Risse and Sikkink 1999). The spiral model looks at causal mechanisms and conditions under which states implement human rights, thereby accounting for differences in the domestic implementation of human rights (Risse et al. 1999).

The boomerang theory and the spiral model thus explain how collaboration between domestic NGOs and transnational NGO networks can influence states to respect, protect, and fulfill their human rights obligations. As seen in Chapter 4, the global AIDS advocacy campaign demonstrated how collaborative work between international and domestic NGOs—bringing together top-down and bottom-up advocacy—pressured states to change their policies, programs, and practices in response to AIDS. In order to have this effect on state actors, NGOs can collaborate across borders to leverage their relative powers, to create multiple points of pressure on states, and to amplify their voices for human rights implementation.

B.  NGO Practice in Support of Human Rights Implementation

As these theories of implementation are applied in practice, human rights NGOs play a critical and ongoing role in translating international human rights norms and principles into a domestic culture of human rights, facilitating accountability for the implementation of health-related rights through human rights education, policymaking, judicial and quasi-judicial processes, and engagement with international human rights mechanisms.

1.  Human Rights Education

Many NGOs engage in human rights education to inform rights-holders of their claims, raise public awareness of violations, and support duty-bearers in meeting their obligations. Some NGOs focus on information about specific human rights issues, such as sexual and reproductive rights, whereas others focus on informing specific populations, such as refugees and asylum seekers. Fact sheets, public campaigns, media releases, canvassing door to door, and human rights forums can inform people about their rights, empowering them to claim their rights (McGill 2011). Beyond educating rights-holders to claim their rights, NGOs also raise awareness about human rights to mobilize the public to take action.6 This empowerment of the public may lead to public protest, participation in domestic policymaking processes, public interest litigation, and engagement with the international human rights system.

Correspondingly, some NGOs focus on educating duty-bearers about their obligations. To ensure that government actors respect, protect, and fulfill the (p. 126) government’s human rights obligations, they must know what those obligations are. Thus, governments are obligated, for example, to ensure that police officers and public schoolteachers understand their human rights obligations in carrying out their government responsibilities. Human Rights Education Associates, for example, provides human rights trainings for professional groups, including media professionals, law enforcement officials, legal professionals, humanitarian workers, human rights defenders—and importantly, health professionals.

2.  Policymaking

NGOs are also directly involved in policymaking to implement human rights at national and subnational levels—bringing the voice of the people to policymakers. They participate in drafting legislation and regulations, carrying out human rights-based analysis of legislative proposals, lobbying legislators, providing legislative committees with information helpful to understanding the human rights issues before them, and mobilizing people, as seen in Figure 5.1, to protest or testify before legislatures and legislative committees (MacNaughton et al. 2015).

Figure 5.1.  NGO Rally at the State House in Montpelier, Vermont to Support Universal Health Care (National Economic and Social Rights Initiative).

Case Study: Vermont Workers Center “Health Care Is a Human Right” Campaign

The Vermont Workers Center engaged both human rights education and policymaking approaches to pressure the Vermont state government in the United States to establish a universal healthcare system to realize the human right to health care for all. In 2008, the Center began the “Health Care Is a Human Right” campaign. (p. 127) The first step in the campaign was to educate Vermonters on the idea that health care is a human right and that it should be available to all Vermonters regardless of ability to pay. To do so, volunteers staffed tables at local farmers’ markets, marched in local parades, wrote letters to newspapers, and canvased neighborhoods. The campaign also organized human rights hearings across the state, where Vermonters spoke about their experiences with the healthcare system, providing evidence that the healthcare system was causing needless suffering to thousands and mobilizing the public to demand a human rights-based system of universal health care. This mobilization culminated in a rally at the Statehouse—with speeches by Vermonters about their healthcare experiences. The following year, the Campaign held local “People’s Forums,” where Vermonters testified before state legislators about their personal experiences of being unable to afford needed health care. In response, many legislators pledged to support universal health care. During the legislative session, the campaign kept pressure on legislators, preparing a “People’s Toolkit” with talking points for Vermonters to discuss with their legislators and a score sheet to analyze policy proposals based on a human rights framework. A “People’s Team” (in red T-shirts) attended every committee meeting, helped Vermonters find their legislators in the Statehouse, and provided information and analysis to the public and legislators. Although Vermont has not yet realized universal health care, this campaign resulted in legislation that requires health policy to meet five key human rights principles: universality, equity, transparency, participation, and accountability.

While human rights education of rights-holders and duty-bearers is the first step in building a culture of human rights, it is also necessary to mainstream human rights principles into all government procedures. NGOs, therefore, demand transparency in legislative decision-making (sometimes invoking freedom of information laws), demand forums for people to voice their opinions in efforts to participate in decision-making, and monitor the impacts of legislation to facilitate accountability for realizing human rights. The policymaking approach provides a human rights-based advocacy process of educating legislators and holding them accountable for their human rights obligations—in both the processes of policy development and the resulting policy outcomes (McGill 2011).

3.  Judicial and Quasi-judicial Proceedings

Human rights NGOs additionally seek accountability for human rights violations through public interest litigation—and other forms of judicial and quasi-judicial complaint. NGO participation in this judicial approach to human rights implementation may involve (1) filing a formal complaint on behalf of an individual or group of individuals alleging violations of their human rights, (2) filing a brief before a court in a human rights case, or (3) collecting evidence from other complainants who might join the case. In India, the NGO Human Rights Law Network (HRLN) uses public interest litigation to bring about structural changes in healthcare policy—and hold the government accountable for implementing policy reforms. For example, the Reproductive Rights Initiative at HRLN filed a court case to stop the negligent and abusive sterilization of women in state-sponsored sterilization camps, as many women who were (p. 128) sterilized were not adequately informed about what was to happen to them (and bicycle pumps were used rather than surgical equipment to perform the procedures). The resulting judicial decision set a legal precedent on access to safe sterilization across the country. Connecting NGO activism, research, and litigation to support marginalized communities and document their experiences in cases before the courts, HRLN has institutionalized reproductive rights as human rights in India (HRLN n.d).

4.  Engagement with the International Human Rights System

Finally, NGOs play an essential role in linking domestic human rights activities with international human rights activities. Indeed, state monitoring and review by international human rights bodies would have little effect if it were not for the work of NGOs, which submit shadow reports to the UPR Working Group of the Human Rights Council and human rights treaty bodies that add to the information a state is reporting on its progress in implementing its human rights obligations (Gaer 2003). NGOs also educate the public about the international human rights mechanisms—including the Human Rights Council, the treaty bodies, and the special procedures—and engage the public in monitoring, investigating, testifying, and reporting processes. Following up on recommendations issued by international human rights mechanisms, NGOs advocate, publicize, and mobilize to pressure governments to implement the recommendations and monitor the human rights outcomes of subsequent changes to law, policy, and practice. In supporting monitoring efforts, NGOs also host UN special rapporteurs when they visit on a country mission—helping to prepare itineraries, organizing local NGOs to bring people to forums, and providing background information on the human rights situation in specific localities. The US Human Rights Network, for example, has played a key role in hosting special rapporteurs on missions to the United States, as well as in coordinating NGOs across the country to submit shadow reports before the Human Rights Council and the human rights treaty bodies.

The influence of NGOs on the domestic implementation of international human rights law has grown substantially since the adoption of the UN Charter in 1945 established the promotion and protection of human rights as an obligation of all states. NGO innovation has emerged as key to the translation of international human rights law into domestic law, policy, and practice. NGOs support human rights education, for example, by developing curriculums for schools and professionals as well as by raising public awareness of human rights to build social movements (Sirota 2017). In policymaking, NGOs develop and implement, among other things, human rights impact assessments to predict the impacts of policy proposals; human rights-based indicators to monitor the impact of policies on human rights; and human rights-based budget analysis to make transparent the government’s commitment to its human rights obligations, including its commitment to health rights (Fundar, IBP, and IHRIP 2004). Facilitating accountability for implementing human rights, NGOs are at the forefront of public interest litigation to uphold health-related human rights in countries around the world. Finally, NGOs are increasingly important to international human rights processes as fact finders, treaty drafters, movement builders, side event hosts, conveners of expert consultations and workshops, and human rights educators. The mechanisms for translating international human rights law into domestic law, policy, (p. 129) and practice depend to a large extent on the participation of a vibrant global and domestic NGO community.

Conclusion

The UN Charter and UDHR were adopted over seventy years ago, and the two International Covenants over fifty years ago—all guaranteeing health-related human rights. Yet, it was not until the turn of the millennium that human rights entered the “era of implementation.” While the first fifty years of the modern human rights system largely involved developing international human rights treaties and lobbying for their national ratification, recent decades have seen increasing attention to the implementation of these international laws—including health-related human rights—through domestic law, policy, and practice. International human rights bodies, governments, and NGOs, among other actors, have all played critical roles in translating international law into national action.

Based upon international legal obligations, this translation of international human rights law into the domestic sphere may appear straightforward. As UN members, states have human rights obligations to implement the human rights treaties that they have ratified. To aid states, many human rights treaty bodies have issued general comments and recommendations, providing more detailed explanations of state obligations under specific international human rights legal provisions. As a state-centric system, states must implement international human rights law through education, policies, judicial and quasi-judicial processes, and other appropriate measures. They further bear an obligation to report to the UN Human Rights Council and a variety of international human rights treaty bodies on the measures they have adopted to implement their international legal obligations. In these implementation and accountability processes, human rights NGOs attempt to report on the limitations of state efforts to realize human rights in people’s lives. The Council and the human rights treaty bodies then respond to this information about state implementation with recommendations to support the realization of human rights for all.

There are many obstacles, however, to the practical implementation of health-related human rights. The United States, for example, has not eliminated racial discrimination, a key social determinant of health, although it ratified the International Convention on the Elimination of All Forms of Racial Discrimination in 1994. Due to the reluctance of governments to abide by their human rights obligations, the process of implementation of international human rights law into domestic law, policy, and practice is complex. Translating international human rights law into domestic systems requires human rights education, policymaking, judicial and quasi-judicial processes, and engagement with the international system. States may be persuaded or coerced, or they may internalize human rights through acculturation. This process of translation requires the participation of many actors, both domestic and international. Indeed, the UDHR calls for “every individual and every organ of society” to promote respect for human rights. As more people join the global health and human rights movement, involving all actors and using all appropriate means, it is possible to translate international human rights law into domestic law, policy, and practice—and build a culture of human rights for global health.

(p. 130) Questions for Consideration

  1. 1.  Why is it important for a state to codify health-related human rights obligations in domestic law and policy?

  2. 2.  How does education about human rights empower people and create a culture of human rights for health?

  3. 3.  What is the policy approach to domestic implementation of international human rights law? How does this approach differ from other approaches?

  4. 4.  How can the right to health be implemented in the United States even though the United States has not ratified the core international human rights treaties (e.g., the ICESCR) that recognize this right?

  5. 5.  Although national governments ratify international human rights treaties and implement their obligations, subnational governments also play important roles in implementing international human rights law in domestic policy and practice. What are the advantages and disadvantages of implementing international human rights laws at the local rather than the national level?

  6. 6.  How does engagement with the international human rights system support accountability for national implementation of health-related human rights?

  7. 7.  How can domestic NGOs find support from international NGOs in advocating for national reforms?

  8. 8.  The Vermont “Health Care Is a Human Right” NGO campaign engaged both the human rights education approach and the policy approach. What were the strengths and weaknesses of these strategies?

  9. 9.  Where the state is resistant to implementing human rights, what recourse do NGOs have to press for the implementation of health-related human rights?

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Footnotes:

1  For example, the Indian Constitution includes both Fundamental Rights, which are justiciable, and Directive Principles, which are not justiciable but are principles to guide governance and law-making. Health rights in the Indian Constitution are solely Directive Principles, which do not authorize individuals to use the court system to hold the government accountable for violations of these rights. However, in a 1989 case, Rakesh Chandra Narayan v. State of Bihar, the Indian Supreme Court found that the health rights in the Directive Principles are essential to understanding and interpreting the right to life, which is a Fundamental Right in the Constitution. The Court found that health rights could thus be litigated (as part of the right to life), and the Court has continued to issue decisions on health rights, including decisions on the provision of emergency care and on maternal mortality.

2  As seen in the case study above, the 2010 Constitution of Kenya delegates much of the responsibility for ensuring the realization of health-related rights to county governments.

3  Unlike national or subnational governments, local governments primarily enforce their policies and programming through local administrative agencies rather than judicial entities (UN Human Rights Council 2015).

4  For example, the human rights cities of Walewale and Bongo, in Ghana, were organized with the assistance of the Legal Resources Center, a local NGO. The creation of these human rights cities was done with consultation and consensus building as well as the mobilization of various stakeholders, including youth groups, women’s groups, chiefs, and the local government authority (PDHRE 2007). In both human rights cities, the local government collaborates with nongovernmental actors to implement their goals. Both of these human rights cities have identified public health as a critical issue for human rights, and in accordance with this prioritization of health, both cities have successfully increased enrollment and access to the National Health Insurance Scheme. Realizing this health initiative, the Bongo Human Rights City educated the community, encouraged popular support, and increased the effectiveness of channels of communication to make the National Health Insurance Scheme “pro-poor” (Marks, Modrowski, and Lichem 2008).

5  For example, the European Union may require that a state seeking to join the Union ratify a human rights treaty and implement it through national legislation. Contravening the implementation of human rights, the World Bank and International Finance Corporation may give a country an improved rating for business when it abolishes or fails to enforce labor rights protections, under the auspices that eliminating rights will set the conditions for greater profits (Berg and Cazes 2007).

6  PDHRE, for example, has helped dozens of local groups around the world establish human rights cities, through which local governments work with residents to implement human rights education and create a culture of human rights for all residents (Marks, Modrowski, and Lichem 2008).