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  • Defining the right to the highest attainable standard of health in UN General Comment 14 published by the Committee on Economic, Social and Cultural Rights in July 2000

    Para 8. The right to health is not to be understood as a right to be healthy. The right to health contains both freedoms and entitlements. Freedoms include the right to control one's health and body, including sexual and reproductive freedom, and the right to be free from interference, such as the right to be free from torture, non-consensual medical treatment and experimentation. By contrast, the entitlements include the right to a system of health protection, which provides equality of opportunity for people to enjoy the highest attainable level of health.

    [...]

    Para 11. The Committee interprets the right to health, as defined in article 12 (1), as 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, including on sexual and reproductive health. A further important aspect is the participation of the population in all health related decision-making at the community, national and international levels.

    PHR-UK and the development of the UN General Comment on the right to the highest attainable standard of health

    The foremost legal source for the international human right to health is Article 12 of the 1966 International Covenant on Economic, Social and Cultural Rights (ICESCR). The ICESCR, together with the 1966 International Covenant on Civil and Political Rights and the Universal Declaration of Human Rights that was created soon after the United Nations, make up what is often referred to as the "International Bill of Human Rights".

    The Right to Heath, as recognised by the United Nations, is not drawn from any notional, moral or inherent rights but is founded upon international laws over which States have negotiated (sometimes described as horse-traded) for years. It is derived from written texts that have required consideration and interpretation. As with many other economic, social, and cultural rights, interpretations have differed considerably in defining the scope and content of the Right to Health and the resulting concomitant States obligations. This lack of conceptual clarity which has hitherto complicated the implementation and monitoring of these rights, is due to a number of factors, including the relatively recent origin of social, economic, and cultural rights as compared with civil and political rights, and the tendency of both governments and human rights advocates to perceive civil and political rights as of greater importance.

    All of the majority of UN members that have ratified the ICESCR have, thereby, voluntarily undertaken to observe the legal obligations protecting the rights contained within the Covenant, and their governments are required to report every five years to the UN Committee on Economic, Social and Cultural Rights (CESCR). This Committee is made up of 18 Independent Experts, who are elected by the member governments of the United Nations Economic and Social Council, but serve in their own capacity. CESCR, at its twice-yearly country reviews in Geneva, examines governments’ reports and other information furnished by NGOs and other sources, and then issues observations on each State’s implementation of the Covenant.

    To promote better understanding of the Covenant, and therefore implementation by member States, CESCR from time to time publishes amplifications of individual Articles known as General Comments. These explications elaborate on the text of the treaty and serve to define the nature of rights and obligations under the Covenant. This is particularly important because, unlike other core human rights treaties, ICESCR has no procedure by which CESCR can comment on individual complaints of violations, the normal way in which a treaty’s meaning is defined.

    A brief glance at Article 12 shows how its cryptic requirements serve as an insufficient template upon which to base evaluations of the health of entire nations.

    Article 12 of the International Covenant on Economic, Social and Cultural Rights

    The States Parties to the present Covenant recognise 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 realisation of this right shall include those necessary for:

    The provision for the reduction of the stillbirth-rate and of infant mortality and for the healthy development of the child;

    (b) The improvement of all aspects of environmental and industrial hygiene;

    (c) The prevention, treatment and control of epidemic, endemic, occupational and other diseases;

    (d) The creation of conditions which would assure to all medical service and medical attention in the event of sickness.

    Although CESCR had issued 13 General Comments, on such topics as the right to housing, the right to food, the right to education, until 2000, none existed on the right to health. As long ago as 1993, CESCR held a day of General Discussion on Article 12, but did not proceed to the publication of a General Comment. The continuing inadequacy of definition of the substance of Article 12 has resulted in CESCR’s assessments of the Right to Health at each country’s quinquennial review tending to be brief and unsystematic.

    In December 1998 CESCR considered PHR-UKs suggestion that CESCR return to the question of the right to health as one possible topic for a day of discussion. [UN Doc. E/C.12/1998/SR.51/ Add.1]. CESCR’s decision to go ahead with a General Discussion on Article 12, from which a General Comment would spring, was made six months later, in May 1999. CESCR’s Rapporteur appointed to co-ordinate the programme spent a year consulting with a large number of NGOs and other institutions from around the world. PHR-UK hosted an international conference on this in November 1999, which was attended by invited Committee members, including the Rapporteur, and chaired by Audrey Chapman, of the American Association for the Advancement of Science. At CESCR’s open session on May 8th 2000, the Rapporteur publicly singled out the Conference as being particularly helpful to him and his colleagues.

    The General Comment was approved at a closed session of CESCR on May 11th 2000 and was published in unedited form on 4 July 2000. The drafting of a 65-paragraph General Comment has been a considerable feat in such a short time and the Rapporteur and his collaborating CESCR colleagues are to be congratulated. The development and formulation of the General Comment gained from CESCR’s invaluable experience in the developing previous General Comments, such as that on Article 13 - the Right to Education.

    Three PHR-UK representatives took part in CESCR meetings in Geneva leading up to the adoption of the General Comment. On 29 April PHR-UK Chair, Peter Hall, participated in a specially invited informal working group chaired by the Rapporteur involving interested CESCR members and representatives of WHO and other NGOs. Dr. Hall’s influence can be seen in a number of passages in the General Comment most conspicuously a description of the distinguishing features of primary, secondary and tertiary care. Bernie Hamilton, PHR-UK Special Advisor and PHR-UK member Helen Bygrave took part in the public CESCR meeting of 8th May. Dr. Helen Bygrave is responsible for the inclusion of the only reference to palliative care, in paragraph 34 of the General Comment.

    The official minutes of the meeting record as follows: HAMILTON (Physicians for Human Rights-UK) expressed satisfaction that CESCR was giving so much consideration to article 12 at the current session. His organization was concerned about the concept of health care as outlined in paragraph 3. ...Physicians for Human Rights UK had also drawn the attention of CESCR to the concept of essential prerequisites, which had been introduced into paragraph 9 of the draft as "underlying determinants" ... The references in paragraphs 48 to 50 to the role of the international financial institutions were especially welcome, as poverty correlated very highly with infant mortality rates and other health indicators. CESCR should give some thought to the question of the training of health professionals. If they were to contribute fully to the realization of the right to health, they had to be allowed the freedom to work properly and ethically. ... Human rights should be part of their training, and CESCR might consider including a comment to that effect in paragraph 17 of the draft.

    The Human Development Report 2000, released by the United Nations Development Programme (UNDP) on June 29 emphasised that human rights must include economic, social, and cultural rights, not just political and civil rights. Hitherto the International Covenant on Civil and Political rights (e.g. Article 7 No one shall be subjected to torture or to cruel, inhuman or degrading treatment or punishment) has attracted much more attention than the ICESCR. The UNDP report comments "The torture of a single individual rightly raises public outrage. Yet the deaths of more than 30,000 children every day from mainly preventable causes go unnoticed."

    Greater recognition that the Right to Health is as important an international law as the right not to be tortured, has been a major goal for PHR-UK for some time. The development of the General Comment on the Right to Health, in which PHR-UK played a significant part, was an essential first step in the process, and will perhaps, ultimately, save more lives and prevent more misery than any other part of UN law. Members of PHR-UK should feel they have made a significant contribution to human rights on a truly global scale.

    General Comment 14 can be found on URL

    http://www.unhchr.ch/tbs/doc.nsf/0/40d009901358b0e2c1256915005090be?OpenDocument



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