Evolution of the Right to Health Part IIby Thomas A. Gionis, MD JD MBA MHA FICS FRCS United States...

Evolution of the “Right to Health”

Part II

byby

Thomas A. Gionis, MD JD MBA MHA FICS FRCSThomas A. Gionis, MD JD MBA MHA FICS FRCS

United States Fulbright Scholar in LawUnited States Fulbright Scholar in Law

Chairman, American Board of Healthcare Law and MedicineChairman, American Board of Healthcare Law and Medicine

Adjunct Professor of Law, St. Thomas University School of Adjunct Professor of Law, St. Thomas University School of

LawLaw

Evolution of the Right to Health

The International Bill of Human Rights

Universal Declaration of Human Rights International Covenant on Economic, Social and Cultural Rights International Covenant on Civil and Political Rights Optional Protocol to the International Covenant on Civil and

Political Rights Second Optional Protocol to the International Covenant on Civil

and Political Rights, aiming at the abolition of the death penalty

WHO

World Health Organization


Start of the Evolution of the Right to HealthStart of the Evolution of the Right to Health::

the Public’s Healththe Public’s Health


Start of the Evolution of the Right to HealthStart of the Evolution of the Right to Health::the Public’s Healththe Public’s Health

Ancient Egypt; Greece

Pre-19th Century Europe; German Police

19th Century EuropeEnglandEngland:: Bentham / Chadwick:Bentham / Chadwick:

RelationshipRelationship between the between the predicaments predicaments of of the poorthe poor - - and the effects – - - and the effects – sanitary sanitary dangers of the dangers of the ““civilized societycivilized society.”.”


Development of International Health Organizations Development of International Health Organizations

League of Nations 1919 ILO 1919

OIHP (Conventions)Health Organization of the League of Nations

[President Roosevelt’s Four-Freedoms Speech, 1941]

April 18, 1946League of Nations League of Nations dissolved dissolved itselfitself

transferred its mission and assets to the transferred its mission and assets to the

United Nations (after WW II) (after WW II)


Development of International Health Organizations Development of International Health Organizations League of Nations 1919 ILO 1919 United Nations

President Roosevelt’s Four-Freedoms Speech, 1941

Freedom of Speech and Expression;

Freedom to Worhsip God in one’s own way;

Freedom of Want;

Freedom from Fear.


Development of International Health Organizations Development of International Health Organizations

League of Nations 1919 ILO 1919

United Nations (UN) 1945

World Health Organization (WHO) 1948


Development of International Health Organizations Development of International Health Organizations Formulation of Health as a Human Right UN Charter

LN 1919 (UN) 1945 (WHO) 1948

United Nations Conference on International Organization & Memorandum

Caused insertion of a reference to “Health” in

Article 13, Chapter IV

Article 55, Chapter IX

Article 57, Chapter IX

Article 62, Chapter X


Development of International Health Organizations Development of International Health Organizations Formulation of Health as a Human Right

LN 1919 (UN) 1945 (WHO) 1948

Preamble Draft of the WHO Constitution March- April 1946

WHO Constitution April 7, 1948

Main difference between draft of texts:

‘Right to Health’

‘Highest attainable standard of health’


Development of International Health Organizations Formulation of Health as a Human Right

WHO Constitution

Health is a state of complete physical, mental and social well-being

and not merely the absence of disease or infirmity.



WHO Constitution

The 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.



WHO Constitution

The health of all peoples is fundamental to the attainment of peace

and security and is dependent upon the fullest co-operation of

individuals and States.



WHO Constitution

Governments have a responsibility for the health of their peoples

which can be fulfilled only by the provision of adequate health and

social measures.



Legal Effect – WHO Constitution

Constitutions of international organizations, and therefore also the Constitution of the WHO, are multilateral treaties according to public international law.

The Constitution of the WHO is therefore binding upon States that are a party to the WHO.

State parties will accordingly have to comply with the international “right to health” as set forth in the preamble to the WHO Constitution.


WHO – “Primary Health Care”

Declaration of Alma-AtaInternational Conference on Primary Health Care,

Alma-Ata, USSR, 6-12 September 1978

Organized by WHO and UNICEF



Declaration of Alma-Ata

The Declaration expressed the responsibility of Governments for the

health of their people.




“Primary Health Care” is to be considered ‘essential health care

which is to be made universally accessible to individuals and families

in the community in ways acceptable to them, through their full

participation and at a cost that the community can afford.”




VII.Primary health care:

(1). reflects and evolves from the economic conditions and sociocultural and political characteristics of the country and its communities and is based on the application of the relevant results of social, biomedical and health services research and public health experience;





(2). addresses the main health problems in the community, providing promotive, preventive, curative and rehabilitative services accordingly;





(3). includes at least:

(a). education concerning prevailing health problems and the methods of preventing and controlling them;

(b). promotion of food supply and proper nutrition;

(c). an adequate supply of safe water and basic sanitation;

(d). maternal and child health care, including family planning;





(3). includes at least:

(e). immunization against the major infectious diseases;

(d). prevention and control of locally endemic diseases;

(e). appropriate treatment of common diseases and injuries;

(f). and provision of essential drugs;

Evolution of the “Right to Health”

Part II

byby

Thomas A. Gionis, MD JD MBA MHA FICS FRCSThomas A. Gionis, MD JD MBA MHA FICS FRCS

United States Fulbright Scholar in LawUnited States Fulbright Scholar in Law

Chairman, American Board of Healthcare Law and MedicineChairman, American Board of Healthcare Law and Medicine

Adjunct Professor of Law, St. Thomas University School of Adjunct Professor of Law, St. Thomas University School of

LawLaw


Evolution of the Right to Health: Documentary Evidence

United Nations Universal Declaration of Human Rights (1948)

Article 25.

(1). Everyone has the right to a standard of living adequate for the

health and well-being of himself and of his family, including food,

clothing, housing and medical care and necessary social services, and

the right to security in the event of unemployment, sickness, disability,

widowhood, old age or other lack of livelihood in circumstances beyond

his control.

(2). Motherhood and childhood are entitled to special care and

assistance. All children, whether born in or out of wedlock, shall enjoy the

same social protection.


Additional Protocol of the American Convention on Human Rights in the Area of Economic, Social and Cultural Rights

Protocol of San Salvador Article 10

(1). Everyone shall have the right to health, understood to mean the enjoyment of the highest level of physical, mental and social well-being.

(Recall:

WHO: “enjoyment of the highest attainable standard of health” )




(2). In order to ensure the exercise of the right to health, the States Parties agree to recognize health as a public good and,

particularly, to adopt the following measures to ensure that right:

(a). Primary health care, that is, essential health care made available to all individuals and families in the community;

(b). Extension of the benefits of health services to all individuals subject to the State’s jurisdiction;




(2). (c). Universal immunization against the principal infectious diseases;

(d). Prevention and treatment of endemic, occupational and other diseases;

(e). Education of the population on the prevention and treatment of health problems;




(2). (f). Satisfaction of the health needs of the highest risk groups and of those whose poverty makes them the most vulnerable.


Convention on the Rights of the Child (CRC)

Article 24

(1). States Parties recognize the right of the child to the enjoyment of

the highest attainable standard of health and to facilities for the

treatment of illness and rehabilitation of health. States Parties shall

strive to ensure that no child is deprived of his or her right of access to

such health care services.



Article 24

(2). States Parties shall pursue full implementation of this right and, in particular, shall take appropriate measures:

(a). To diminish infant and child mortality;

(b). To ensure the provision of necessary medical assistance and health care to all children with emphasis on the development of primary health care;



Article 24

(2). (c). To combat disease and malnutrition, including within the framework of primary health care, through, inter alia, the application of readily available technology and through the provision of adequate nutritious foods and clean drinking- water, taking into consideration the dangers and risks of environmental pollution;

(d). To ensure appropriate pre-natal and post-natal health care for mothers;



Article 24

(2). (e). To ensure that all segments of society, in particular parents and children, are informed, have access to education and are supported in the use of basic knowledge of child health and nutrition, the advantages of breastfeeding, hygiene and environmental sanitation and the prevention of accidents;

(f). To develop preventive health care, guidance for parents and family planning education and services.


Convention on the Elimination of All Forms of Racial Discrimination

Article 5(e)(iv)

[provides that States Parties undertake to prohibit

and eliminate racial discrimination in the enjoyment of]

"the right to public health, medical care, social security and social

Services."


Convention on the Elimination of All Forms of Discrimination Against Women

Article ll(l)(f)

[provides that State Parties shall take all appropriate measures to eliminate discrimination against

women in the enjoyment of]

"the right to protection of health and to safety in working conditions,

including the safeguarding of the function of reproduction."


Convention on the Elimination of All Forms of Discrimination Against Women

Article 12

[provides that all appropriate measures should be taken by States Parties to eliminate discrimination against

women]

"in the field of health care in order to ensure on a basis of equality of men

and women, access to health care services, including those related to

family planning."


African Charter on Human and Peoples' Rights

Article 16

Every individual shall have the right to enjoy the best attainable state

of physical and mental health.

RecallRecall::

Protocol of San Salvador

Everyone shall have the right to health, understood to mean the enjoyment of the

highest level of physical, mental and social well-being.

WHO: “enjoyment of the highest attainable standard of health”


American Declaration of the Rights and Duties of Man

Article XI:

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.


International Covenant on Civil and Political Rights

Adopted and opened for signature, ratification and accession by

General Assembly resolution 2200A (XXI) of 16 December 1966

entry into force 23 March 1976, in accordance with Article 49.



Health as a Limiting or Restrictive Covenant

Article 12 Liberty of Movement

Article 18 Freedom of thought, conscience and religion

Article 19 Freedom of expression

Article 21 Freedom of peaceful assembly

Article 22 Freedom of association



Article 12

(1). Everyone lawfully within the territory of a State shall, within that territory, have the right to liberty of movement and freedom to choose his residence.

(2). Everyone shall be free to leave any country, including his own.

(3). The above-mentioned rights shall not be subject to any restrictions except those which are provided by law, are necessary to protect national security, public order (ordre public), public health or morals or the rights and freedoms of others, and are consistent with the other rights recognized in the present Covenant.

Evolution of the Right to Health: Documentary Evidence International Covenant on Civil and Political Rights

Article 18

(1). Everyone shall have the right to freedom of thought, conscience and religion. This right shall include freedom to have or to adopt a religion or belief of his choice, and freedom, either individually or in community with others and in public or private, to manifest his religion or belief in worship, observance, practice and teaching.

(2). No one shall be subject to coercion which would impair his freedom to have or to adopt a religion or belief of his choice.

(3). Freedom to manifest one's religion or beliefs may be subject only to such limitations as are prescribed by law and are necessary to protect public safety, order, health, or morals or the fundamental rights and freedoms of others.



Article 19

(1). Everyone shall have the right to hold opinions without interference.

(2). Everyone shall have the right to freedom of expression; this right shall include freedom to seek, receive and impart information and ideas of all kinds, regardless of frontiers, either orally, in writing or in print, in the form of art, or through any other media of his choice.

(3). The exercise of the rights provided for in paragraph 2 of this article carries with it special duties and responsibilities. It may therefore be subject to certain restrictions, but these shall only be such as are provided by law and are necessary:

(a). For respect of the rights or reputations of others;

(b). For the protection of national security or of public order (ordre public), or of public health or morals.



Article 21

The right of peaceful assembly shall be recognized. No restrictions may

be placed on the exercise of this right other than those imposed in

conformity with the law and which are necessary in a democratic society in

the interests of national security or public safety, public order (ordre

public), the protection of public health or morals or the protection of the

rights and freedoms of others.



Article 22

(1). Everyone shall have the right to freedom of association with others, including the right to form and join trade unions for the protection of his interests.

(2). No restrictions may be placed on the exercise of this right other than those which are prescribed by law and which are necessary in a democratic society in the interests of national security or public safety, public order (ordre public), the protection of public health or morals or the protection of the rights and freedoms of others.


International Covenant on Economic, Social and Cultural Rights

Adopted and opened for signature, ratification and accession by General Assembly resolution 2200A (XXI) of 16 December 1966, entry into force 3 January 1976.



Article 7 Work Conditions

Article 10 Family

Article 12 Right of everyone to the enjoyment of the highest attainable standard of physical and mental health.



Article 7

The States Parties to the present Covenant recognize the right of everyone to the enjoyment of just and favourable conditions of work which ensure, in particular:

(a) Remuneration which provides all workers, as a minimum, with:

(i) Fair wages and equal remuneration for work of equal value without distinction of any kind, in particular women being guaranteed conditions of work not inferior to those enjoyed by men, with equal pay for equal work;

(ii) A decent living for themselves and their families in accordance with the provisions of the present Covenant;

(b) Safe and healthy working conditions;

(c) Equal opportunity for everyone to be promoted …

(d ) Rest, leisure and reasonable limitation of working hours and periodic holidays . . .



Article 10

The States Parties to the present Covenant recognize that:

(1). The widest possible protection and assistance should be accorded to the family, which is the natural and fundamental group unit of society, particularly for its establishment and while it is responsible for the care and education of dependent children. Marriage must be entered into with the free consent of the intending spouses.

(2). Special protection should be accorded to mothers during a reasonable period before and after childbirth. During such period working mothers should be accorded paid leave or leave with adequate social security benefits.



Article 10

The States Parties to the present Covenant recognize that:

(3). Special measures of protection and assistance should be taken on behalf of all children and young persons without any discrimination for reasons of parentage or other conditions.

(4). Children and young persons should be protected from economic and social exploitation. Their employment in work harmful to their morals or health or dangerous to life or likely to hamper their normal development should be punishable by law. States should also set age limits below which the paid employment of child labour should be prohibited and punishable by law.



Article 12

(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;



Article 12

(2). (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.


General Comment No. 14General Comment No. 14 to to Article 12Article 12

COMMITTEE ON ECONOMIC, SOCIAL AND CULTURAL RIGHTSTwenty-second session, Geneva, 25 April-12 May 2000Agenda item 3

SUBSTANTIVE ISSUES ARISING IN THE IMPLEMENTATION OFTHE INTERNATIONAL COVENANT ON ECONOMIC, SOCIALAND CULTURAL RIGHTS

General Comment No. 14 (2000) The right to the highest attainable standard of health

(article 12 of the International Covenant on Economic, Social and Cultural Rights)




““Health is a fundamental human right indispensable for Health is a fundamental human right indispensable for

the exercise of other human rights.the exercise of other human rights. ” ”




““Every human being is entitled to the enjoyment of the Every human being is entitled to the enjoyment of the highest attainable standard of health conducive to highest attainable standard of health conducive to living a life in dignityliving a life in dignity.” .”

““The realization of the right to health may be pursued The realization of the right to health may be pursued through numerous, complementary approaches, such as through numerous, complementary approaches, such as the formulation of health policies, or the the formulation of health policies, or the implementation of health programmes developed by the implementation of health programmes developed by the World Health Organization (WHO), or the adoption of World Health Organization (WHO), or the adoption of specific legal instruments.” specific legal instruments.”

““Moreover, the right to health includes certain Moreover, the right to health includes certain components which are legally enforceablecomponents which are legally enforceable .” .”




““The human right to health is recognized in numerous The human right to health is recognized in numerous international instrumentsinternational instruments : :

Universal Declaration of Human RightsUniversal Declaration of Human Rights, Article 25.1 , Article 25.1 International Covenant on Economic, Social and Cultural RightsInternational Covenant on Economic, Social and Cultural Rights, Article 12.1 , Article 12.1 International Convention on the Elimination of All Forms of Racial International Convention on the Elimination of All Forms of Racial

Discrimination of 1965Discrimination of 1965, Article 5 (e) (iv) , Article 5 (e) (iv) Convention on the Elimination of All Forms of Discrimination against Women of Convention on the Elimination of All Forms of Discrimination against Women of

19791979, Articles 11.1 (f) , Articles 11.1 (f) Rights of the Child of 1989Rights of the Child of 1989, Article 24” , Article 24”




““Several regional human rights instruments also recognize the Several regional human rights instruments also recognize the right to health, such as the right to health, such as the

European Social Charter of 1961 as revisedEuropean Social Charter of 1961 as revised, Article 11,, Article 11, African Charter on Human and Peoples' Rights of 1981African Charter on Human and Peoples' Rights of 1981, Article 16, Article 16 Additional Protocol to the American Convention on Human Rights in the Area of Additional Protocol to the American Convention on Human Rights in the Area of

Economic, Social and Cultural Rights of 1988Economic, Social and Cultural Rights of 1988, Article 10 “, Article 10 “




““Similarly, the right to health has been proclaimed by the Similarly, the right to health has been proclaimed by the

Commission on Human RightsCommission on Human Rights, 1989, 1989 Vienna Declaration and Programme of ActionVienna Declaration and Programme of Action, 1993, 1993 The Principles for the Protection of Persons with Mental Illness and for the The Principles for the Protection of Persons with Mental Illness and for the

Improvement of Mental Health CareImprovement of Mental Health Care

(adopted by the (adopted by the United Nations General AssemblyUnited Nations General Assembly, 1991 (resolution 46/119) , 1991 (resolution 46/119) and the Committee's General Comment No. 5 on persons with disabilities)”and the Committee's General Comment No. 5 on persons with disabilities)”




““Similarly, the right to health has been proclaimed by the Similarly, the right to health has been proclaimed by the

Programme of Action of the International Conference on Population Programme of Action of the International Conference on Population and Developmentand Development , Cairo, 1994 , Cairo, 1994

Declaration and Programme for Action of the Fourth World Declaration and Programme for Action of the Fourth World Conference on Women; BeijingConference on Women; Beijing, 1995, 1995 ””




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




““In drafting article 12 of the Covenant, the Third In drafting article 12 of the Covenant, the Third Committee of the United Nations General Assembly did Committee of the United Nations General Assembly did not adoptnot adopt the definition of health contained in the the definition of health contained in the preamble to the preamble to the Constitution of WHOConstitution of WHO, which , which conceptualizes health as "conceptualizes health as "a state of complete physical, a state of complete physical, mental and social well-being and not merely the mental and social well-being and not merely the absence of disease or infirmityabsence of disease or infirmity". ".




However, the reference in article 12.1 of the Covenant to However, the reference in article 12.1 of the Covenant to ""the highest attainable standard of physical and mental the highest attainable standard of physical and mental healthhealth" is not confined to the right to health care.” On " is not confined to the right to health care.” On the contrary, the drafting history and the express the contrary, the drafting history and the express wording of article 12.2 acknowledge that the wording of article 12.2 acknowledge that the right to right to healthhealth embraces a wide range of socio-economic factorsembraces a wide range of socio-economic factors that promote conditions in which people can lead a that promote conditions in which people can lead a healthy life, and extends to the healthy life, and extends to the underlying determinants underlying determinants of healthof health, such as food and nutrition, housing, access to , such as food and nutrition, housing, access to safe and potable water and adequate sanitation, safe and safe and potable water and adequate sanitation, safe and healthy working conditions, and a healthy environment.healthy working conditions, and a healthy environment.




General Comment focuses on General Comment focuses on

Normative content of Article 12Normative content of Article 12 (Part I) (Part I)

States parties' obligationsStates parties' obligations (Part II) (Part II)

ViolationsViolations (Part III) (Part III)

Implementation at the national levelImplementation at the national level (Part IV) (Part IV)

Obligations of actors other than States partiesObligations of actors other than States parties (Part V) (Part V)




Article 12.1 provides a definition of the right to health, Article 12.1 provides a definition of the right to health, while article 12.2 enumerates illustrative, non-while article 12.2 enumerates illustrative, non-exhaustive examples of States parties' obligations.exhaustive examples of States parties' obligations.




Article 12

(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;



Article 12

(2). (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.



The The right to healthright to health contains both freedoms and contains both freedoms and entitlements.entitlements.

The The freedomsfreedoms include the include the rightright to control one's health to control one's health and body, including sexual and reproductive freedom, and body, including sexual and reproductive freedom, and the and the rightright to be free from interference, such as the to be free from interference, such as the right right to be free from torture, non-consensual medical to be free from torture, non-consensual medical treatment and experimentation. treatment and experimentation.

By contrast, the By contrast, the entitlementsentitlements include the include the right right to a to a system of system of health protectionhealth protection which provides which provides equality of equality of opportunityopportunity for for people to enjoy the highest attainable people to enjoy the highest attainable level of healthlevel of health..




““The notion of "the highest attainable standard of The notion of "the highest attainable standard of health" in article 12.1 takes into account both the health" in article 12.1 takes into account both the individual's biologicalindividual's biological and and socio-economic preconditionssocio-economic preconditions and a State's and a State's available resourcesavailable resources.” .”

““There are a number of aspects which cannot be There are a number of aspects which cannot be addressed solely within the addressed solely within the relationshiprelationship between States between States and individuals; in particular, good health and individuals; in particular, good health cannot cannot be be ensured by a State, ensured by a State, nor can States provide protection nor can States provide protection against every possible cause of human ill healthagainst every possible cause of human ill health.” .”




““Thus, Thus, genetic factorsgenetic factors, , individual susceptibilityindividual susceptibility to ill to ill health and the adoption of health and the adoption of unhealthy or risky lifestylesunhealthy or risky lifestyles may play an important role with respect to an may play an important role with respect to an individual's health.” individual's health.”

““Consequently, the Consequently, the right to healthright to health must be understood must be understood as a as a right to the enjoyment of a variety of facilitiesright to the enjoyment of a variety of facilities, , goodsgoods, , servicesservices and and conditionsconditions necessary for the necessary for the realization of the highest attainable standard of realization of the highest attainable standard of healthhealth.”.”




““Since the adoption of the two International Covenants in 1966 the Since the adoption of the two International Covenants in 1966 the world health situation has changed dramatically and the notion of world health situation has changed dramatically and the notion of healthhealth has undergone has undergone substantial changessubstantial changes and has also and has also widened widened in scopein scope.” .”

More determinants of health are being taken into consideration, More determinants of health are being taken into consideration, such as resource distribution, gender differences, violence and such as resource distribution, gender differences, violence and armed conflict, HIV/AIDS, cancer, & rapid growth of the world armed conflict, HIV/AIDS, cancer, & rapid growth of the world population, have created new obstacles for the realization of the population, have created new obstacles for the realization of the right to health which need to be taken into account when right to health which need to be taken into account when interpreting Article 12.interpreting Article 12.




““The Committee interprets the The Committee interprets the right to healthright to health, as , as defined in article 12.1, as an inclusive right extending defined in article 12.1, as an inclusive right extending not only to not only to timely timely and and appropriateappropriate health carehealth care but also but also to the to the underlying determinantsunderlying determinants of health, such as of health, such as access to safeaccess to safe and and potable waterpotable water and and adequate adequate sanitationsanitation, an adequate supply of , an adequate supply of safe foodsafe food, , nutritionnutrition and and housinghousing, healthy , healthy occupationaloccupational and and environmental environmental conditions, and conditions, and access access to health-related to health-related educationeducation and and iinformationnformation, including on sexual and reproductive , including on sexual and reproductive healthhealth..””




““The The right to healthright to health in all its forms and at all levels in all its forms and at all levels contains contains the following interrelated and the following interrelated and essential essential elementselements, the precise application of which will depend , the precise application of which will depend on the conditions prevailing in a particular State party:on the conditions prevailing in a particular State party:




““The The right to healthright to health . . . . . . essential elementsessential elements . . .” : . . .” :

(a)(a) Availability.Availability.

Functioning Functioning public healthpublic health and and health-care facilitieshealth-care facilities, , goodsgoods and and

servicesservices, as well as programmes, have to be available , as well as programmes, have to be available in sufficient in sufficient

quantityquantity within the State party. The precise nature of the facilities, within the State party. The precise nature of the facilities,

goods and services will vary depending on numerous factors, goods and services will vary depending on numerous factors,

including the State party's developmental level. including the State party's developmental level.





(a)(a) Availability.Availability.

They They willwill include, however, the include, however, the underlying determinants of healthunderlying determinants of health, ,

such as such as safe safe and and potablepotable drinking waterdrinking water and and adequate sanitation adequate sanitation

facilitiesfacilities, , hospitalshospitals, , clinicsclinics and other and other health-related buildingshealth-related buildings, trained , trained

medical and professional medical and professional personnelpersonnel receiving domestically receiving domestically

competitive salaries, and competitive salaries, and essential drugsessential drugs, as defined by the WHO , as defined by the WHO

Action Programme on Essential Drugs. Action Programme on Essential Drugs.





(b).(b). AccessibilityAccessibility Non-discriminationNon-discrimination Physical accessibilityPhysical accessibility Economic accessibility (affordability)Economic accessibility (affordability) Information accessibilityInformation accessibility





(b).(b). AccessibilityAccessibility Non-discriminationNon-discrimination: health facilities, goods and services : health facilities, goods and services

must be must be accessible to allaccessible to all, especially the most , especially the most vulnerable or marginalized sections of the population, vulnerable or marginalized sections of the population, in law and in fact, without discrimination on any of the in law and in fact, without discrimination on any of the prohibited groundsprohibited grounds ; ;





Non-discriminationNon-discrimination: :

““proscribes any discrimination in proscribes any discrimination in access to health careaccess to health care and and underlying determinants of healthunderlying determinants of health, as well as to means and , as well as to means and entitlements for their procurement, on the grounds of entitlements for their procurement, on the grounds of racerace, , colourcolour, , sexsex, , languagelanguage, , religionreligion, , politicalpolitical or other or other opinionopinion, , nationalnational or or socialsocial origin, origin, propertyproperty, , birthbirth, , physicalphysical or or mentalmental disabilitydisability, , healthhealth status (including HIV/AIDS), status (including HIV/AIDS), sexual sexual orientationorientation and and civilcivil, , politicalpolitical, , socialsocial or other status, which or other status, which has the intention or effect of nullifying or impairing the equal has the intention or effect of nullifying or impairing the equal enjoyment or exercise of the right to health” enjoyment or exercise of the right to health”





(b).(b). AccessibilityAccessibility Physical accessibilityPhysical accessibility: health facilities, goods and services : health facilities, goods and services

must be within must be within safe physical reachsafe physical reach for all sections of the for all sections of the population, especially vpopulation, especially vulnerableulnerable or or marginalized groupsmarginalized groups, , such as ethnic minorities and indigenous populations, such as ethnic minorities and indigenous populations, women, children, adolescents, older persons, persons with women, children, adolescents, older persons, persons with disabilities and persons with HIV/AIDS. disabilities and persons with HIV/AIDS. AccessibilityAccessibility also also implies that implies that medical servicesmedical services and and underlying determinants underlying determinants of healthof health, such as safe and potable water and adequate , such as safe and potable water and adequate sanitation facilities, are within safe physical reach, sanitation facilities, are within safe physical reach, including in rural areas.including in rural areas.





(b).(b). AccessibilityAccessibility Economic accessibility (affordabilityEconomic accessibility (affordability)): :

health facilities, goods and services must be health facilities, goods and services must be affordableaffordable for for all. all.

Payment for health-care services, as well as services related Payment for health-care services, as well as services related to to

the the underlying determinants of healthunderlying determinants of health, has to be based on , has to be based on the the

principle of equity . . . are affordable for all, including socially principle of equity . . . are affordable for all, including socially

disadvantaged groups.disadvantaged groups.





(b).(b). AccessibilityAccessibility Information accessibilityInformation accessibility: accessibility includes the right : accessibility includes the right

to seek, receive and impart information and ideas to seek, receive and impart information and ideas concerning health issues. concerning health issues.





(c).(c). AcceptabilityAcceptability All health facilities, goods and services must be All health facilities, goods and services must be

respectful of respectful of medical ethicsmedical ethics and and culturally appropriateculturally appropriate, , i.e. respectful of the culture of individuals, minorities, i.e. respectful of the culture of individuals, minorities, peoples and communities, sensitive to gender and life-peoples and communities, sensitive to gender and life-cycle requirements, as well as being designed to cycle requirements, as well as being designed to respect confidentiality and improve the health status of respect confidentiality and improve the health status of those concerned.those concerned.





(d).(d). QualityQuality As well as being culturally acceptable, health facilities, As well as being culturally acceptable, health facilities,

goods and services must also be goods and services must also be scientificallyscientifically and and medicallymedically appropriateappropriate and of and of good qualitygood quality. This . This requires, requires, inter aliainter alia, skilled medical personnel, , skilled medical personnel, scientifically approvedscientifically approved and unexpired and unexpired drugsdrugs and and hospital equipmenthospital equipment, , safesafe and and potable waterpotable water, and , and adequate adequate sanitationsanitation..




Article 12.2(a); Article 12.2(a); Right to maternal, child & reproductive healthRight to maternal, child & reproductive health

""The provision for the reduction of the stillbirth rate and of infant The provision for the reduction of the stillbirth rate and of infant

mortality and for the healthy development of the childmortality and for the healthy development of the child” ”

may be understood as requiring measures to improve may be understood as requiring measures to improve child and child and

maternal healthmaternal health, , sexualsexual and and reproductive health servicesreproductive health services, including , including

access to access to family planningfamily planning, , pre- and post-natal carepre- and post-natal care, , emergency emergency

obstetric servicesobstetric services and and access to informationaccess to information, as well as to resources , as well as to resources

necessary to act on that information.necessary to act on that information.




Article 12.2 (b);Article 12.2 (b); Right to healthy natural and workplace Right to healthy natural and workplace environmentsenvironments

""The improvement of all aspects of environmental and industrial The improvement of all aspects of environmental and industrial hygienehygiene““

““comprises the requirement to ensure an adequatecomprises the requirement to ensure an adequate supply of supply of safesafe

and and potable waterpotable water and basic and basic sanitationsanitation; the ; the preventionprevention and and reductionreduction

of the population's of the population's exposure to harmful substancesexposure to harmful substances such as such as radiationradiation

and harmful and harmful chemicalschemicals or other or other detrimental environmental conditionsdetrimental environmental conditions

that directly or indirectly impact upon human health.”that directly or indirectly impact upon human health.”




Article 12.2 (c); Article 12.2 (c); Right to prevention, treatment and control diseaseRight to prevention, treatment and control disease ""The prevention, treatment and control of epidemic, endemic, The prevention, treatment and control of epidemic, endemic,

occupational and other diseasesoccupational and other diseases" "

““requiresrequires the establishment of prevention and education the establishment of prevention and education

programmes for programmes for behaviour-related healthbehaviour-related health concerns such as concerns such as sexually sexually

transmitted diseasestransmitted diseases, in particular HIV/AIDS, and those adversely , in particular HIV/AIDS, and those adversely

affecting affecting sexualsexual and and reproductive healthreproductive health, and the promotion of , and the promotion of social social

determinants of good healthdeterminants of good health, such as , such as environmental safetyenvironmental safety, ,

educationeducation, , economic developmenteconomic development and and gender equitygender equity.”.”






““The The right to treatmentright to treatment includes the creation of a system of includes the creation of a system of urgent urgent

medical caremedical care in cases of in cases of accidentsaccidents, , epidemicsepidemics and similar and similar health health

hazardshazards, and the provision of , and the provision of disaster reliefdisaster relief and and humanitarian humanitarian

assistanceassistance in in emergencyemergency situations.” situations.”






““The The control of diseasescontrol of diseases refers to States' individual and joint efforts refers to States' individual and joint efforts

to, to, inter aliainter alia, make available relevant technologies, using and , make available relevant technologies, using and

improving improving epidemiological surveillanceepidemiological surveillance and and data collectiondata collection on a on a

disaggregated basis, the implementation or enhancement of disaggregated basis, the implementation or enhancement of

immunization programmesimmunization programmes and other strategies of and other strategies of infectious disease infectious disease

controlcontrol.”.”




Article 12.2 (d);Article 12.2 (d); Right to health facilities, goods and servicesRight to health facilities, goods and services ""The creation of conditions which would assure to all medical The creation of conditions which would assure to all medical

service and medical attention in the event of sicknessservice and medical attention in the event of sickness both physical both physical and mentaland mental””

includes the provision of equal and timely access to includes the provision of equal and timely access to basic preventivebasic preventive, ,

curativecurative, , rehabilitativerehabilitative health services and health services and health educationhealth education; ; regular regular

screening programmesscreening programmes; ; appropriate treatmentappropriate treatment of of prevalentprevalent diseases, diseases,

illnessesillnesses, , injuriesinjuries and and disabilitiesdisabilities; the provision of ; the provision of essential drugsessential drugs; ; &&

appropriateappropriate mental healthmental health treatment and care. treatment and care.




II.II. STATES PARTIES' OBLIGATIONS STATES PARTIES' OBLIGATIONS General legal obligations General legal obligations

““While the Covenant provides for While the Covenant provides for progressive realizationprogressive realization and and

acknowledges the constraints due to the limits of available acknowledges the constraints due to the limits of available

resources, it also resources, it also imposesimposes on States parties various on States parties various obligationsobligations

which are of which are of immediate effectimmediate effect.”.”





““States parties have States parties have immediate obligationsimmediate obligations in relation to the in relation to the right to right to

healthhealth, such as the guarantee that the right will be exercised , such as the guarantee that the right will be exercised without without

discriminationdiscrimination of any kind (art. 2.2) and the of any kind (art. 2.2) and the obligationobligation to take steps to take steps

(art. 2.1) towards the (art. 2.1) towards the full realizationfull realization of article 12. Such steps must be of article 12. Such steps must be

deliberatedeliberate, , concreteconcrete and and targetedtargeted towards the full realization of the towards the full realization of the

right to healthright to health.”.”





““The The progressive realizationprogressive realization of the of the right to healthright to health over a period of over a period of

time should time should notnot be interpreted as depriving States parties' be interpreted as depriving States parties'

obligations of all meaningful content. obligations of all meaningful content.

Rather, progressive realization means that States parties have a Rather, progressive realization means that States parties have a

specificspecific and and continuing obligationcontinuing obligation to move as to move as expeditiouslyexpeditiously and and

effectivelyeffectively as possible towards the as possible towards the full realization of article 12full realization of article 12.. ””





The The right to healthright to health, like , like all human rightsall human rights, imposes , imposes threethree types or types or

levels of obligations on States parties: the obligations to levels of obligations on States parties: the obligations to respectrespect, ,

protectprotect and and fulfilfulfil. .





The The obligation to respectobligation to respect requires States to refrain from interfering requires States to refrain from interfering

directly or indirectly with the enjoyment of the right to health. directly or indirectly with the enjoyment of the right to health.

The The obligation to protectobligation to protect requires States to take measures that requires States to take measures that

prevent third parties from interfering with article 12 guarantees. prevent third parties from interfering with article 12 guarantees.





Finally, the Finally, the obligation to fulfilobligation to fulfil requires States to adopt appropriate requires States to adopt appropriate

legislative, administrative, budgetary, judicial, promotional and other legislative, administrative, budgetary, judicial, promotional and other

measures towards the full realization of the right to health. measures towards the full realization of the right to health. The The

obligation to fulfil contains obligations to facilitate, provide and obligation to fulfil contains obligations to facilitate, provide and

promote. promote.




II.II. STATES PARTIES' OBLIGATIONS STATES PARTIES' OBLIGATIONS Special legal obligations –Special legal obligations – RespectRespect of the Right of Healthof the Right of Health

In particular, States are under the obligation to respect the right to

health by, inter alia, by

(1). refraining from denying or limiting equal access for all

persons, including prisoners or detainees, minorities, asylum

seekers and illegal immigrants, to preventive, curative and palliative health services;





(2). abstaining from enforcing discriminatory practices as a State policy;

(3). abstaining from imposing discriminatory practices relating to women's health status and needs.

(4). refraining from prohibiting or impeding traditional preventive care, healing practices and medicines





(5). refraining from marketing unsafe drugs

(6). refraining from applying coercive medical treatments

(7). refraining from limiting access to contraceptives and other means of maintaining sexual and reproductive health,





(8). refraining from censoring, withholding or intentionally misrepresenting health-related information, including sexual education and information,

(9). refraining from preventing people's participation in health-related matters.





(10). refraining from unlawfully polluting air, water and soil, e.g. through industrial waste from State-owned facilities, from using or testing nuclear, biological or chemical weapons if such testing results in the release of substances harmful to human health,

(11). refraining from limiting access to health services as a punitive measure, e.g. during armed conflicts in violation of

international humanitarian law.




II.II. STATES PARTIES' OBLIGATIONS STATES PARTIES' OBLIGATIONS Special legal obligations –Special legal obligations – ProtectProtect the Right of Healththe Right of Health

(1). the duties of States to adopt legislation or to take other measures ensuring equal access to health care and health-related services provided by third parties;

(2). to ensure that privatization of the health sector does not constitute a threat to the availability, accessibility,

acceptability and quality of health facilities, goods and services;





(3). to control the marketing of medical equipment and medicines by third parties;

(4). to ensure that medical practitioners and other health professionals meet appropriate standards of education, skill and ethical codes of conduct.





(5). to ensure that harmful social or traditional practices do not interfere with access to pre- and post-natal care and family-planning;

(6). to prevent third parties from coercing women to undergo traditional practices, e.g. female genital mutilation;





(7). to take measures to protect all vulnerable or marginalized groups of society, in particular women, children,

adolescents and older persons, in the light of gender-based expressions of violence.

(8). to ensure that third parties do not limit people's access to health-related information and services.




II.II. STATES PARTIES' OBLIGATIONS STATES PARTIES' OBLIGATIONS Special legal obligations –Special legal obligations – FulfillFulfill the Right of Healththe Right of Health

(1). to give sufficient recognition to the right to health in the national political and legal systems, preferably by way of legislative implementation,

(2). to adopt a national health policy with a detailed plan for realizing the right to health. States must ensure provision of health care, including immunization programmes against the major infectious diseases,





(3). ensure equal access for all to the underlying determinants of health, such as nutritiously safe food and potable drinking water, basic sanitation and adequate housing and living

conditions,

(4). to provide public health infrastructures which provide for sexual and reproductive health services, including safe

motherhood, particularly in rural areas,





(5). to ensure the appropriate training of doctors and other medical personnel, the provision of a sufficient number of hospitals, clinics and other health-related facilities,

(6). to promote and the promotion and support of the establishment of institutions providing counselling and mental

health services,





(7). to formulate and implement national policies aimed at reducing and eliminating pollution of air, water and soil, including pollution by heavy metals such as lead from gasoline,

(8). To formulate, implement and periodically review a coherent national policy to minimize the risk of occupational

accidents and diseases, as well as to provide a coherent national policy on occupational safety and health services.





Elements of national policy to minimize risk of occupational accidents and disease include:

(1). the identification, determination, authorization and control of dangerous materials, equipment, substances, agents and

work processes,






(2). the provision of health information to workers and the provision, if needed, of adequate protective clothing and equipment,






(3). the enforcement of laws and regulations through adequate inspection; the requirement of notification of occupational accidents and diseases, the conduct of inquiries into serious accidents and diseases, and the production of annual

statistics,






(4). the protection of workers and their representatives from disciplinary measures for actions properly taken by them in conformity with such a policy,

(5). the provision of occupational health services with essentially preventive functions.





Elements of national policy to minimize risk of occupational accidents and disease:

See ILO Occupational Safety and Health Convention, 1981 (No. 155)

and ILO Occupational Health Services Convention, 1985 (No. 161).




II.II. STATES PARTIES' OBLIGATIONS STATES PARTIES' OBLIGATIONS International obligationsInternational obligations

In its General Comment No. 3, the Committee drew In its General Comment No. 3, the Committee drew attention to the attention to the obligationobligation of of all Statesall States parties to take parties to take steps, individually and through international assistance steps, individually and through international assistance and cooperation, especially economic and technical, and cooperation, especially economic and technical, towards the full realization towards the full realization of the rights recognized in of the rights recognized in the Covenantthe Covenant, such as the , such as the right to healthright to health. .





In the spirit of the In the spirit of the Charter of the United NationsCharter of the United Nations, the , the specific provisions of the specific provisions of the CovenantCovenant (articles 12, 2.1, 22 (articles 12, 2.1, 22 and 23) and the and 23) and the Alma-Ata DeclarationAlma-Ata Declaration on primary health on primary health care, States parties should recognize the essential role care, States parties should recognize the essential role of of international cooperationinternational cooperation and comply with their and comply with their commitment to take commitment to take joint and separatejoint and separate action to action to achieve the full realization of the achieve the full realization of the right to healthright to health. .





In this regard, States parties are referred to the In this regard, States parties are referred to the Alma-Alma-Ata DeclarationAta Declaration which proclaims that the which proclaims that the existingexisting gross gross inequality in the health status of the people, inequality in the health status of the people, particularly between developed and developing particularly between developed and developing countries, as well as within countries, is countries, as well as within countries, is politicallypolitically, , sociallysocially and and economicallyeconomically unacceptableunacceptable and is, and is, therefore, of therefore, of common concern to all countriescommon concern to all countries..





To comply with their To comply with their international obligationsinternational obligations in in relation to article 12, States parties have to respect the relation to article 12, States parties have to respect the enjoyment of the enjoyment of the right to healthright to health in other countries, and in other countries, and to to preventprevent third parties from violating the third parties from violating the rightright in other in other countries . . .countries . . .





States parties should ensure that the States parties should ensure that the right to healthright to health is is given due attention in given due attention in international agreementsinternational agreements and, to and, to that end, should consider the development of further that end, should consider the development of further legal instruments. legal instruments.

In relation to the conclusion of other international In relation to the conclusion of other international agreements, States parties should take steps to ensure agreements, States parties should take steps to ensure that these instruments that these instruments do not adversely impactdo not adversely impact upon upon the the right to healthright to health. .





Similarly, States parties have an Similarly, States parties have an obligationobligation to ensure to ensure that their actions as members of international that their actions as members of international organizations take due account of the organizations take due account of the right to healthright to health. .





Accordingly, States parties which are members of Accordingly, States parties which are members of international financial institutionsinternational financial institutions, notably the , notably the International Monetary Fund, the World Bank, and International Monetary Fund, the World Bank, and regional development banks, should pay regional development banks, should pay greater greater attentionattention to the protection of the to the protection of the right to healthright to health in in influencing the lending policies, credit agreements and influencing the lending policies, credit agreements and international measures of these institutions.international measures of these institutions.





States parties should refrain at all times from imposingStates parties should refrain at all times from imposing embargoes or similar measures restricting the supply of embargoes or similar measures restricting the supply of another State with another State with adequate medicinesadequate medicines and and medical medical equipmentequipment. .

Restrictions on such goods should never be used as an Restrictions on such goods should never be used as an instrumentinstrument of political and economic pressure. of political and economic pressure.




II.II. STATES PARTIES' OBLIGATIONS STATES PARTIES' OBLIGATIONS Core obligationsCore obligations

In General Comment No. 3, the Committee confirms that In General Comment No. 3, the Committee confirms that StatesStates

parties have a parties have a core obligationcore obligation to ensure the satisfaction of, to ensure the satisfaction of, at the at the

very leastvery least, , minimum essential levelsminimum essential levels of each of the rights enunciated of each of the rights enunciated

in the Covenant, including in the Covenant, including essential primary health careessential primary health care. .

Read in conjunction with more contemporary instruments, such as Read in conjunction with more contemporary instruments, such as

the Programme of Action of the the Programme of Action of the International Conference on International Conference on

Population and DevelopmentPopulation and Development, the , the Alma-Ata DeclarationAlma-Ata Declaration provides provides

compelling guidancecompelling guidance on the on the core obligationscore obligations arising from article 12. arising from article 12.





Accordingly, in the Committee's view, Accordingly, in the Committee's view, these core obligations these core obligations include at least the following obligationsinclude at least the following obligations: :

(a)(a) To ensure the To ensure the right of accessright of access to health facilities, goods and to health facilities, goods and services on a non-discriminatory basis, especially for services on a non-discriminatory basis, especially for

vulnerablevulnerable or marginalized groups; or marginalized groups;

(b)(b) To ensure To ensure accessaccess to the to the minimum essential foodminimum essential food which is which is nutritionally adequate and safe, to ensure freedom from nutritionally adequate and safe, to ensure freedom from

hunger to everyone; hunger to everyone;






(c) (c) To ensure access to To ensure access to basic shelterbasic shelter, housing and, housing and sanitation, sanitation, and and an adequate supply of safe and an adequate supply of safe and potable waterpotable water; ;

(d) (d) To provide To provide essential drugsessential drugs, as from time to time defined , as from time to time defined under under the WHO Action Programme on Essential Drugs; the WHO Action Programme on Essential Drugs;

(e) (e) To ensure To ensure equitable distributionequitable distribution of all of all healthhealth facilitiesfacilities, , goodsgoods and and servicesservices; ;






(f).(f). To adopt and implement a national To adopt and implement a national public health strategypublic health strategy and and plan of action, on the basis of plan of action, on the basis of epidemiological evidenceepidemiological evidence, ,

addressing the health concerns of the whole population; addressing the health concerns of the whole population;

the strategy and plan of action shall be devised, and the strategy and plan of action shall be devised, and periodically reviewed, on the basis of a participatory and periodically reviewed, on the basis of a participatory and transparent process; transparent process;






(f).(f). they shall include methods, such as they shall include methods, such as right to healthright to health indicators indicators and and benchmarksbenchmarks, by which progress can be closely , by which progress can be closely monitored; monitored; the process by which the strategy and plan of action the process by which the strategy and plan of action are are devised, as well as their content, shall give particular devised, as well as their content, shall give particular attention attention to all vulnerable or marginalized groups.to all vulnerable or marginalized groups.





The Committee also confirms that the following are obligations of comparable priority:

(a) To ensure reproductive, maternal (pre-natal as well as post-natal) and child health care;

(b) To provide immunization against the major infectious diseases occurring in the community;

(c) To take measures to prevent, treat and control epidemic and endemic diseases;





The Committee also confirms that the following are obligations of comparable priority:

(d) To provide education and access to information concerning the main health problems in the community, including

methods of preventing and controlling them;

(e) To provide appropriate training for health personnel, including education on health and human rights.




III.III. VIOLATIONS of the Right to HealthVIOLATIONS of the Right to Health

In determining which actions or omissions amount to a In determining which actions or omissions amount to a violation of the violation of the right to healthright to health, it is important to , it is important to distinguish the distinguish the inabilityinability from the from the unwillingnessunwillingness of a of a State party to comply with its State party to comply with its obligationsobligations under article under article 12. 12.

This follows from article 12.1, which speaks of the This follows from article 12.1, which speaks of the highest attainable standard of health, as well as from highest attainable standard of health, as well as from article 2.1 of the Covenant, which article 2.1 of the Covenant, which obliges each State obliges each State partyparty to take the necessary steps to the maximum of its to take the necessary steps to the maximum of its available resources. available resources.





A State which is A State which is unwillingunwilling to use the maximum of its to use the maximum of its available resources for the realization of the right to available resources for the realization of the right to health health is inis in violationviolation of of its its obligationsobligations under article 12. under article 12.

If If resource constraints render it resource constraints render it impossibleimpossible for a State for a State to comply fully with its Covenant to comply fully with its Covenant obligationsobligations, it has the , it has the burden of justifyingburden of justifying that that everyevery effort has nevertheless effort has nevertheless been made to use all available resources at its disposal been made to use all available resources at its disposal in order to satisfy, in order to satisfy, as aas a matter of prioritymatter of priority, the , the obligationsobligations outlined above. outlined above.





It should be stressed, however, that It should be stressed, however, that a State party a State party cannotcannot, , under any circumstances whatsoeverunder any circumstances whatsoever, justify , justify its non-compliance with the its non-compliance with the core obligationscore obligations set out set out above, which are above, which are non-derogablenon-derogable..





Violations through Violations through acts of omissionacts of omission include the include the failure failure to taketo take appropriate stepsappropriate steps towards the full realization of towards the full realization of everyone's right to the enjoyment of the highest everyone's right to the enjoyment of the highest attainable standard of physical and mental healthattainable standard of physical and mental health, the , the failure to have a national policy on occupational safetyfailure to have a national policy on occupational safety and healthand health as well as occupational health services, and as well as occupational health services, and the the failure to enforce relevant lawsfailure to enforce relevant laws..




III.III. VIOLATIONS of the Right to Health

Violations of the Obligation to Respect

Violations of the obligation to respect, are those State Violations of the obligation to respect, are those State actions, actions,

policies or laws, that contravene the standards set out in policies or laws, that contravene the standards set out in article article

12 of the Covenant, and are 12 of the Covenant, and are likely to result in bodily likely to result in bodily harmharm, ,

unnecessary morbidityunnecessary morbidity and and preventable mortality.preventable mortality.






Examples include Examples include

(1).(1). the denial of the denial of access to health facilitiesaccess to health facilities, , goodsgoods and and servicesservices to to particular individuals or groups as a result of particular individuals or groups as a result of de jurede jure or or de de

factofacto discriminationdiscrimination; ;

(2).(2). the the deliberate withholdingdeliberate withholding or misrepresentation of or misrepresentation of information information vital to vital to health protection or treatmenthealth protection or treatment; ;






Examples include Examples include

(3).(3). the suspension of legislation or the adoption of the suspension of legislation or the adoption of lawslaws or or policies that interfere with the enjoyment of any of thepolicies that interfere with the enjoyment of any of the components of the components of the right to healthright to health; and the failure of the State ; and the failure of the State to to take into account its take into account its legal obligationslegal obligations regarding the regarding the right to right to healthhealth when entering into bilateral or multilateral agreements when entering into bilateral or multilateral agreements with other States, international organizations and other with other States, international organizations and other entities, entities, such as multinational corporationssuch as multinational corporations. .





Violations of the Obligation to Protect Violations of the obligation to protect follow from the failure of a

State to take all necessary measures to safeguard persons within

their jurisdiction from infringements of the right to health by third

parties.

Examples include:

(1). omissions as the failure to regulate the activities of individuals, groups or corporations so as to prevent them from violating the right to health of others;





Violations of the Obligation to Protect

Examples include:

(2). the failure to protect consumers and workers from practices detrimental to health, e.g. by employers and manufacturers

of medicines or food;

(3). the failure to discourage production, marketing and consumption of tobacco, narcotics and other harmful substances;





Violations of the Obligation to Protect Examples include:

(4).the failure to protect women against violence or to prosecute perpetrators;

(5).the failure to discourage the continued observance of harmful traditional medical or cultural practices;

(6).the failure to enact or enforce laws to prevent the pollution of water, air and soil by extractive and manufacturing industries.





Violations of the Obligation to FulfilViolations of the obligation to fulfil occur through the failure of States

parties to take all necessary steps to ensure the realization of the

right to health.

Examples include:

(1). the failure to adopt or implement a national health policy designed to ensure the right to health for everyone;





Violations of the Obligation to Fulfil

Examples include:

(2). insufficient expenditure or misallocation of public resources which results in the non-enjoyment of the right to health by individuals or groups, particularly the vulnerable or

marginalized;






Examples include:

(3). the failure to monitor the realization of the right to health at the national level, for example by identifying right to health indicators and benchmarks;

(4). the failure to take measures to reduce the inequitable distribution of health facilities, goods and services;






Examples include:

(5). the failure to adopt a gender-sensitive approach to health;

(6). the failure to reduce infant and maternal mortality rates.




III.III. Remedies and Accountability Any person or group victim of a violation of the Any person or group victim of a violation of the right to healthright to health

should have access to effective judicial or other appropriate should have access to effective judicial or other appropriate remedies at both national and international levels. remedies at both national and international levels.

Regardless of whether groups as such can seek remedies as Regardless of whether groups as such can seek remedies as distinct holders of rights, States parties are bound by both the distinct holders of rights, States parties are bound by both the collective and individual dimensions of article 12collective and individual dimensions of article 12. .

Collective rightsCollective rights are critical in the field of health; modern public are critical in the field of health; modern public health policy relies heavily on prevention and promotion which health policy relies heavily on prevention and promotion which are approaches directed primarily to groups.are approaches directed primarily to groups.




III.III. Remedies and Accountability

All All victimsvictims of such violations should be entitled to adequate of such violations should be entitled to adequate reparation, which may take the form of restitution, compensation, reparation, which may take the form of restitution, compensation, satisfaction or guarantees of non-repetition. satisfaction or guarantees of non-repetition.

The The incorporationincorporation in the domestic legal order of international in the domestic legal order of international instruments recognizing the instruments recognizing the right to healthright to health can significantly can significantly enhance the scope and effectiveness of remedial measures and enhance the scope and effectiveness of remedial measures and should be encouraged in all cases.should be encouraged in all cases.





Incorporation enablesIncorporation enables courts to adjudicate violations of the right courts to adjudicate violations of the right to health, or at least its core obligations, by direct reference to the to health, or at least its core obligations, by direct reference to the Covenant. Covenant.

Judges and members of the legal profession should be Judges and members of the legal profession should be encouraged by States parties encouraged by States parties to pay greater attentionto pay greater attention to violations to violations of the of the right to healthright to health in the exercise of their functions. in the exercise of their functions.





States parties should respect, protect, facilitate and promote the States parties should respect, protect, facilitate and promote the work of human rights advocates and other members of civil work of human rights advocates and other members of civil society with a view to assisting vulnerable or marginalized groups society with a view to assisting vulnerable or marginalized groups in the realization of their in the realization of their right to healthright to health..



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Evolution of the Right to Health Part IIby Thomas A. Gionis, MD JD MBA MHA FICS FRCS United States...

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