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“[The right to health is] an inclusive right extending not only to timely and appropriate health care but also to the underlying determinants of health, such as access to safe and potable water and adequate sanitation, an adequate supply of safe food, nutrition and housing, healthy occupational and environmental conditions, and access to health-related education and information …”

– Committee on Economic, Social and Cultural Rights, General Comment No. 14

Introduction to Health and Human Rights

Using Human Rights Mechanisms
Resources
Key Terms

The Right to Health

Legal Basis for the Right to Health

The right to health is widely recognized in international human rights law. Below is a chart of the international and regional human rights instruments expressly recognizing the right to health:

Human Rights Instrument Right to Health Provision
Universal Declaration of Human Rights Article 25
International Covenant on Economic and Social Rights Article 12
International Convention on the Elimination
of All Forms of Racial Discrimination
Article 5 (d)(iv)
Convention on the Elimination of All Forms
of Discrimination Against Women
Article 11.1(f) and 12
Convention on the Rights of the Child Article 24
Convention on the Rights of Persons with Disabilities Article 25
African Charter on Human and Peoples’ Rights Article 16
European Social Charter Article 11
American Declaration of the Rights and Duties of Man Article XI
Additional Protocol to the American Convention on Human Rights in the Area of Economic, Social and Cultural Rights Article 10

The mostly widely used and comprehensive articulation of the right to health is set out in the International Covenant on Economic, Social, and Cultural Rights (ICESCR). ICESCR Article 12 provides that “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.”1 

The Committee on Economic, Social and Cultural Rights (CESCR) is the UN body authorized to monitor compliance with the ICESCR and has issued a general comment on the right to health – General Comment 14.2 General comments provide authoritative guidance on how States Parties to a treaty are expected to implement their treaty obligations. However General Comments are not binding on States Parties. This means that States are not legally obligated to comply with the General Comments.

CESCR General Comment 14 on the Right to Health

Normative Content

The right to health is short-form for the right to the highest attainable standard of physical and mental health. The right to health is not the right to be healthy or the right to health care, but a more complex and nuanced understanding of the right to health. CESCR explains that “the right to health must be understood as a right to the enjoyment of a variety of facilities, goods, services and conditions necessary for the realization of the highest attainable standard of health. This section focuses on how CESCR has defined and explained what the right to health is (the normative content), States Parties’ obligations, and recommendations for national implementation of the right to health.

Underlying Determinants of Health

CESCR General Comment 14 explains that the “right to health embraces a wide range of socio-economic factors that promote conditions in which people can lead a healthy life, and extends to the underlying determinants of health.” In other words, the underlying determinants of health can be thought of as “a wide range of socio-economic factors that promote conditions in which people can lead a healthy life.” CESCR explains that the underlying determinants of health include, but are not limited to:

  • Adequate supply of safe food and nutrition
  • Housing
  • Access to safe and potable water and adequate sanitation
  • Safe and healthy working conditions
  • Healthy occupational and environmental conditions
  • Access to health-related education and information including on sexual and reproductive health.

Essential Elements of the Right to Health

The following is a list of essential elements applicable to all aspects of the right to health, including the underlying determinants, and to all countries, “the precise application of which will depend on the conditions prevailing in a particular” country.

A) Availability
  • Public health and health care facilities, goods, services and programs are available in sufficient quantity and include 1) the underlying determinants of health including drinking water and sanitation facilities, 2) hospitals, clinics or other health-related buildings, 3) trained medical and professional personnel, and 4) essential drugs.
B) Accessibility

1. Non-discrimination

  • Health facilities, goods and services accessible to all, especially marginalized and vulnerable
    populations.
  • Discrimination is prohibited on the grounds of race, color, sex, language, religion, political or
    other opinion, national or social origin, property, birth, physical or mental disability, health status (including HIV/AIDS), sexual orientation and civil, political, social or other status.

2. Physical accessibility

  • Health facilities, goods and services, medical services, and the underlying determinants of health are all provided within safe physical reach for all sections of the population.

3. Economic accessibility (affordability)

  • Health facilities, goods and services are affordable for all.
  • Health care services and services related to the underlying determinants of health must be based on equity, meaning affordable for all and not disproportionately burdensome for the poor .

4. Information accessibility

  • Information is accessible and includes the right to seek, receive and impart information and ideas on health issues, while respecting the right to confidential personal health data.
C) Acceptability
  • Health facilities, goods and services are respectful of medical ethics and culturally appropriate including sensitive to gender and life-cycle requirements.
D) Quality
  • Health facilities, goods and services are scientifically and medically appropriate and of good quality. This includes skilled medical personnel, scientifically approved drugs and hospital equipment, safe and potable water, and adequate sanitation.

States Parties’ Obligations

States have several different obligations and different levels of obligations under the right to health.

Immediate Obligation: Non-discrimination

States are immediately obligated, upon ratifying the ICESCR, to ensure non-discrimination in access to health care and the underlying determinants of health. This is an immediate obligation for all states, regardless of resources because CESCR “stresses that many measures, such as most strategies and programmes designed to eliminate health-related discrimination, can be pursued with minimum resource implications through the adoption, modification or abrogation of legislation or the dissemination of information.”

States must prohibit discrimination in access to health care and the underlying determinants of health, as well as the means and entitlements to their procurement. CESCR also emphasizes the need for equality of access to health care and health care services. CESCR explains that discrimination is prohibited on the basis of race, colour, sex, language, religion, political or other opinion, national or social origin, property, birth, physical or mental disability, health status (including HIV/AIDS), sexual orientation and civil, political, social or other status.

Progressive Realization

States also have an immediate obligation to take steps towards the realization of the right to health, referred to as progressive realization. Progressive realization means that “States parties have a specific and continuing obligation to move as expeditiously and effectively as possible”3 towards full realization of the right to health. CESCR recognizes that the right to health cannot be immediately achieved by many States Parties. For example, some States may have to develop health care infrastructure, train health professionals, or implement health care legal reforms. The obligation for States to progressively realize the right to health requires them to make continuing efforts to implement this right, recognizing that this is a process achieved over time.

Presumption against Retrogressive Measures

Along with the obligation of progressive realization is a presumption that States should not take any retrogressive measures. This means that once a State has taken a measure to realize the right to health, it should only expand on that measure and not take away or reduce the availability of that measure.

Minimum Core

The right to health contains a minimum essential core of elements that all States are obligated to implement. Therefore, while States must progressively realize the right to health, they must at the same time begin by at least providing and realizing the minimum essentials. CESCR General Comment 14 provides a list of 6 core obligations States must realize:

a)  Non-discriminatory access to health facilities, goods and services

b)  Access to the minimum, nutritionally adequate and safe food

c)  Access to basic shelter, housing and sanitation, and safe and potable water

d)  Provision of essential drugs (as defined by the WHO)

e)  Equitable distribution of all health facilities, goods and services

f)  Adoption and implementation of a national public health strategy and plan of action.

Maximum Available Resources

ICESCR Article 2(1) also requires each State Party to realize the Covenant rights by taking steps “to the maximum of its available resources.” If a State fails to meet the minimum core obligations and attributes this to a lack of available resources, the State Party must demonstrate that it made every effort to use all available resources in an effort to satisfy the minimum core obligations.4

Priority Obligations

CESCR General Comment 14 provides a list of five priority obligations for States parties. CESCR considers these priorities, in addition to the minimum core obligations, as essential to realizing the right to health. The five priority obligations are:

a)  Ensure reproductive, maternal and child health care

b)  Provide immunization against major infectious diseases in the community

c)  Take measures to prevent, treat and control epidemic and endemic diseases

d)  Provide education and access to information on the main health problems

e)  Provide appropriate training for health personnel, including education on health and human rights.

Respect, Protect, Fulfil

The right to health, “like all human rights, imposes three levels of obligations on States parties: the obligations to respect, protect and fulfil.” CESCR provides detailed explanations of these levels of obligations and with specific examples of State obligations in CESCR General Comment. The three levels are:

Respect: States must refrain from interfering with the enjoyment of the right to health.

Protect: States must take measures to prevent third parties from interfering with the enjoyment of the right to health.

Fulfil: States must adopt legislative, administrative, budgetary, judicial, promotional and other measures towards the full realization of the right to health.

Implementation at the National Level

CESCR General Comment 14 also provides guidance on how States parties should implement the right to health at the national level.

Framework Legislation
It is recommended that States develop and adopt a national health strategy based upon the right to health which lays out a clear plan for how the State will implement the right to health. The national strategy should include the formulation of policies, identification of resources, and corresponding indicators and benchmarks.

Framework Legislation
CESCR also recommends that States utilize right to health indicators and benchmarks. Indicators are used to monitor the implementation of the right to health and compliance with the State’s obligations under ICESCR Article 12. This is achieved through data collection and statistical analysis.5 Benchmarks are usually developed in relation to each indicator and provide the State with specific targets that it seeks to achieve. An example is provided below:

Indicator Proportion of births attended by a skilled health professional.
Benchmark 80% of births attended by a skilled health professional by 2015.

 

Health and Human Rights

The Resource Guide also explores the intersection between health and other human rights, beyond the right to health. Human rights are interdependent and interrelated. As CESCR General Comment 14 states:

The right to health is closely related to and dependent upon the realization of other human 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.

CESCR highlights the interdependence and interrelatedness of the right to health and other human rights. However, the field of health and human rights extends beyond the interrelatedness of human rights. From the outset, the health and human rights field sought to explore the intersection of the field of health and the field of human rights. As Jonathan Mann and colleagues explained:

[H]ealth and human rights are both powerful, modern approaches to defining and advancing human well-being. Attention to the intersection of health and human rights may provide practical benefits to those engaged in health or human rights work, may help reorient thinking about major global health challenges, and may contribute to broadening human rights thinking and practice.6 

Many international declarations and principles based on the linkage of health and human rights are relevant to practitioners. For example, the Alma-Ata Declaration underscored the need to protect health and identified primary health care as a key to achieving health for all.7 The Siracusa Principles state that when there is a conflict between human rights and public health needs, governments may infringe rights if their actions are necessary to achieve legitimate objectives, provided that those actions are the least intrusive possible, and non-discriminatory in application.8 These connections between health and human rights will be explored throughout each chapter.

Notes

1 UN General Assembly, International Covenant on Economic, Social, and Cultural Rights (ICESCR) (Dec 16, 1966, entered into force Jan 3, 1976). http://www.refworld.org/cgi-bin/texis/vtx/rwmain?docid=3ae6b36c0.

2 Committee on Economic, Social and Cultural Rights (CESCR), General Comment No. 14, U.N. Doc. E/C.12/2000/4 (Aug. 11, 2000). http://www2.ohchr.org/english/bodies/cescr/comments.htm.

3 UN Committee on Economic, Social and Cultural Rights (CESCR), General Comment No. 3: The Nature of States Parties’ Obligations (Art. 2, Para. 1, of the Covenant), E/1991/23 (December 14, 1990). http://www2.ohchr.org/english/bodies/cescr/comments.htm.

4 UN Committee on Economic, Social and Cultural Rights (CESCR), General Comment No. 3: The Nature of States Parties’ Obligations (Art. 2, Para. 1, of the Covenant), E/1991/23 (December 14, 1990); UN Committee on Economic, Social and Cultural Rights (CESCR), General Comment No. 14: The Right to the Highest Attainable Standard of Health (Art. 12 of the Covenant), U.N. Doc. E/C.12/2000/4 (Aug. 11, 2000). http://www2.ohchr.org/english/bodies/cescr/comments.htm.

5 For more information on indicators, please see: UN Office of the High Commissioner for Human Rights, Human Rights Indicators: A Guide to Measurement and Implementation (2012). http://www.ohchr.org/EN/Issues/Indicators/Pages/HRIndicatorsIndex.aspx.

6 Mann J et al, “Health and Human Rights,” Health and Human Rights 1, no. 1(Fall 1997): 8.  http://www.hhrjournal.org/archives-pdf/4065260.pdf.bannered.pdf.

7 International Conference on Primary Health Care, Declaration of Alma-Ata (Alma-Ata, USSR, Sept 6-12, 1978). http://www.who.int/publications/almaata_declaration_en.pdf.

8 United Nations, Economic and Social Council, Siracusa Principles on the Limitation and Derogation Provisions in the International Covenant on Civil and Political Rights, E/CN.4/1985/4, Annex (1985). www1.umn.edu/humanrts/instree/siracusaprinciples.html.  See also, WHO, Guidelines for social mobilization; WHO, “WHO Guidance on human rights and involuntary detention for xdr-tb control”, www.who.int/tb/features_archive/involuntary_treatment/en/index.html.