Health draft needs shot in the arm

ALL States in the world are now party to at least one human rights treaty that provides for the right to health or health-related rights. Yet in spite of these commitments, some members of the Commission still consider economic, social and cultural rights, including the right to health, to be, in the words of one distinguished delegate, "letters to Santa Claus".

And it is this lack of willingness to commit to the right to health that is starkly reflected in the proposed Brazilian draft resolution for the 59th Session, which focuses on "violence" but none of the other numerous health-related matters. The reason for this is perplexing.

State obligations

In the context of the International Covenant on Economic, Social and Cultural Rights (ICESCR), the right to health is contained in Article 12. As the Special Rapporteur points out in his report to the 59th Session, Article 12 establishes legally binding provisions that apply to all individuals in the 146 ratifying States, which include 47 members of the Commission. Those six States that have not ratified the ICESCR - Bahrain, Cuba, Malaysia, Saudi Arabia, Swaziland and the United States - have ratified other relevant binding international instruments.

Recent resolutions of the Commission have clearly reaffirmed the status of the right to health, after many years of neglect. In a progressive step, resolution 2002/31 was adopted by consensus at the 58th Session, appointing a Special Rapporteur (SR), Paul Hunt of New Zealand, with a broad mandate on 'the right of everyone to the enjoyment of the highest attainable standard of physical and mental health.' In Annex II to his first report, the SR sets out 13 Commission resolutions and 11 international conferences in the past three years, which refer to the right to health or health-related matters.

States have therefore by consensus repeatedly committed themselves to progressively realising the right to health. So why is the draft resolution on the right to health so lacking in substance?

What is the right to health?

It is true that that the brevity and lack of conceptual clarity in Article 12, and other relevant provisions, have made its implementation problematic in practice. And, in his first report, the SR observes that "[a]lthough there is a growing national and international jurisprudence on the right to health, the legal content of the right is not yet well established." One of the three primary objectives of the SR is therefore "[to] clarify the contours and content of the right to health." This progressive task must not, however, lull States into inactivity or further stagnation, as the 'road map' of the right to health is already sufficiently outlined for States to meet their minimum obligations and to continue to progressively realise all facets of the right to health.

In May 2000, General Comment 14 (GC14) was published by the Committee on Economic, Social and Cultural Rights (CESCR) to assist State parties' implementation of the ICESCR. In resolution 2002/31, the Commission noted GC14 "with interest". A lukewarm response, maybe, but its contents were sufficiently non-contentious for the Commission, by consensus, to ask the SR to "bear in mind" its content as part of his mandate.

In his first report, the SR has outlined some of the important content of the right to health, as adopted in GC14. Importantly, the CESCR and the SR define the right to health as including not only health care, but also the underlying determinants of health; for example, access to safe and potable water, adequate sanitation, healthy occupational and environmental conditions, and access to health-related education and information, including on sexual and reproductive concerns. While the right to health is a distinct human right, and recognised by the Commission as such, it is also closely related to the enjoyment of a number of other human rights and fundamental freedoms; such as, the rights to food and water, housing, work, and education.

The SR also reaffirms, among many other things, that international human rights law proscribes any discrimination in access to health care and the underlying determinants of health, which has the "intention or effect" of impairing the equal enjoyment of the right to health - an issue of particular concern in relation to access to treatment for HIV-AIDS.

Moreover, the SR restates the significant progress made in GC14, that "although subject to progressive realization and resource constraints, the right to health imposes various obligations of immediate effect."

In other words, it is no longer tenable for States to suggest that the right to health cannot be implemented because its content is vague and uncertain. GC14 identifies "core obligations" providing the "minimum essential levels" in the form of "deliberate, concrete and targeted" steps to be taken towards the implementation of the right to health.

These are specific measures that can and should immediately be taken by all States, regardless of their individual stages of economic development. This is an "individual obligation" on States to be taken with or without international assistance.

In short, it is no longer open to the States of the South to claim lack of resources in failing to meet basic health obligations.

There is, however, express recognition of the unequal development of States and the obligation on more developed States to provide international assistance and cooperation towards the "full realisation" of the right to health.

This does mean financial assistance in some cases, but importantly the SR identifies cost-free "policy-making" considerations that can also provide assistance and cooperation. He says: "States are obliged to respect the enjoyment of the right to health in other jurisdictions, to ensure that no international agreement or policy adversely impacts upon the right to health, and that their representatives in international organizations take due account of the right to health, as well as the obligation of international assistance and cooperation, in all policy-making matters."

In this context, the SR's report notes Commission resolution 2002/24 calling upon States to "ensure that the Covenant is taken into account in all of their relevant national and international policy-making processes." Thus, the right to health should be taken into account in measures such as those taken by the World Bank and the IMF, including Structural Adjustment Policies.

States can, therefore, no longer claim lack of content or lack of resources in order to avoid progressively realising the right to health.

Justiciability?

At the 58th Session those States reluctant to address the right to health and, in most cases, economic social and cultural rights in general, played on a number of themes to attempt to limit progress. Of these themes the issue of 'justiciability' was prominent; that is, in the words of the CESCR, whether a matter is "appropriately resolved by the court". The evidence from all regions of the globe, however, is that "speculation about problems of justiciability has given place to reality." The SR gives examples of recent cases from the three principal regional human rights mechanisms.

In 2002 the African Commission on Human and Peoples' Rights found a violation of the right to enjoy the best attainable standard of physical and mental health by the Federal Republic of Nigeria, in respect of violations against the Ogoni people in relation to the activities of oil companies in the Niger Delta. The African Commission stated: "Clearly…economic and social rights are essential elements of human rights in Africa. The African Commission will apply any of the diverse rights contained in the African Charter. It welcomes this opportunity to make clear that there is no right in the African Charter that cannot be made effective."

The European Court of Human Rights in López Ostra v. Spain found that environmental harm to human health may amount to a violation of the right to a home and family and private life. Further, in ICJ v. Portugal, the European Committee of Social Rights found a breach of the European Social Charter and expressed concern that a significant number of children worked in sectors that "may have negative consequences on the children's health as well as on their development".

In Jorge Odir Miranda Cortez et al. v. El Salvador, the Inter-American Commission on Human Rights held that while it was not competent to determine violations of article 10 (the right to health) of the Protocol of San Salvador, it would "take into account the provisions related to the right to health in its analysis of the merits of the case, pursuant to the provisions of articles 26 and 29 of the American Convention".

And in Minister for Health v. Treatment Action Campaign the Constitutional Court of South Africa held that the Constitution required the Government "to devise and implement a comprehensive and coordinated programme to progressively realize the right of pregnant women and their newborn children to have access to health services to combat mother-to-child transmission of HIV".

The SR reports that according to preliminary findings of a survey of national constitutions, sponsored by WHO and carried out by the International Commission of Jurists, over 60 constitutional provisions include the right to health or the right to health care, and over 40 constitutional provisions include health-related rights. Such provisions can often provide a basis for legal enforcement in national courts.

Thus, the SR quite rightly concludes that the numerous cases, laws and decisions at the international, regional and national levels "confirms the justiciability of the right to health". To deny justiciability is for Commission members to ignore the facts.

Draft resolution

Yet, it appears that it is not just case law that certain members of the Commission wish to ignore. For the Brazilian draft resolution for the 59th Session fails to address the right to health in a significant manner. There are perhaps only two points worth noting in the Brazilian draft resolution.

The first ought to be a minor point of drafting. At paragraph 11, it is proposed to change the title of the SR's mandate from 'the right of everyone to the enjoyment of the highest attainable standard of physical and mental health' to simply 'the right to health'. Clearly it makes sense to reduce the current mouthful to something more manageable and memorable. It is, however, important that some formulation of wording is included within the same operational paragraph to make it clear that this change in title is not to be interpreted as changing or narrowing the mandate of the SR in any way.

The second point is more fundamental; that is, the entire resolution is focused on "violence prevention" and nothing else. Whilst nobody doubts that this is an important issue that needs to be addressed, it is inexplicable why the current draft fails to embrace any of the numerous other matters covered in GC14 or the SR's report. Both of these documents are simply noted "with interest". The passing of a resolution, as currently drafted would be inexcusable, and would demonstrate a gross neglect of the international obligations of Commission members to advance the progressive realization of the right to health.

At the 58th Session, the concerns with regard to the right to health expressed by individual States were wide-ranging; they included, cost of implementation, interference with national health programmes, duplication of matters covered in other rights and mechanisms, lack of flexibility in the measures required to implement the right to health, and justiciability. The issue of justiciability has demonstrated that where there is the will to make the right enforceable there is a way.

There is already considerable reason, provided by the CESCR and now in the SR's report, to undermine some of the other objections that have been made in relation to the right to health.

The immediate question, however, is whether members of the Commission have the will to take concrete steps towards the progressive realization of the right to health at all. If there is the will to fulfill States' international obligations, then the Commission's resolution at the 59th Session must reflect this. Members of the Commission should demonstrate their will by including in the resolution a strong endorsement of GC14 or, at the very least, acceptance of the CESCR's 'core obligations'.