The world needs a global health guardian, a custodian of values, a protector and defender of health, including the right to health.
- Dr Margaret Chan, Director-General, WHO
- The WHO Constitution (1946) was the first international instrument to enshrine health as a “fundamental right of every human being without distinction of race, religion, political belief, economic and social conditions”. It is said to have inspired the language on health contained in the Universal Declaration of Human Rights.
- The right to the highest attainable standard of physical and mental health, or the right to health, has since been endorsed by numerous international and regional human rights treaties as well as included in many national constitutions and laws. The WHO Framework Convention on Tobacco Control, the International Health Regulations and many resolutions of the World Health Assembly and the Regional Committee for the Western Pacific make reference to human rights.
- Every country in the world is now party to at least one human rights treaty that addresses health-related rights, i.e., the right to health as well as other rights that relate to conditions necessary for health.
- The right to health means that governments must generate conditions in which everyone can be as healthy as possible.
Health and human rights linkages
Health and human rights are interdependent, indivisible and interrelated, and are also inextricably linked: promoting and protecting health and well-being cannot be achieved without promoting, protecting and fulfilling human rights, and vice versa. Health and human rights discourse talks about three overlapping linkages (see Figure 1).
For example, the right to food encompasses food adequacy, including all the nutritional elements required to live a healthy and active life. This particularly relevant in the Western Pacific Region, where 187 000 preventable deaths occur every year among children under five years of age due to undernutrition and more where than 6.5 million children under five are overweight.
State obligations and commitments to human rights
In the Western Pacific Region, recent years have seen major strides in countries' efforts to advance human rights. These take multiple forms, including international and regional agreements and instruments, as well as national constitutions and laws.
There are 9 core international human rights treaties; the right to health has been enshrined in several of these. The International Covenant on Economic, Social and Cultural Rights (ICESCR), the Convention on the Elimination of all forms of Discrimination Against Women (CEDAW) and the Convention on the Rights of the Child (CRC) are particularly relevant for WHO's work. Table 1 highlights their ratification status in countries of the Western Pacific Region.
Human rights, and specifically the right to health, are increasingly included in national constitutions. The right to health is explicitly recognized in the constitutions of 5 countries in the Region, namely, Japan, Marshall Islands, Federated States of Micronesia, Mongolia and the Philippines. The constitutions of another 5 countries identify health as a directive principle for the state (see Figure 2).
The right to health
Box 1: Ensuring that essential medicines are available
Prices remain an important barrier to availability of and access to essential drugs, particularly in many middle- and low income countries in Europe, Asia and Latin America. Many factors influence prices. An important one relates to intellectual property protection. In 1994, the adoption of the Agreement on Trade-Related Aspects of Intellectual Property Rights (TRIPS) introduced minimum standards for intellectual property protection, but with certain flexibilities for health. The 2001 Doha Declaration affirmed these and reiterated the right of States to take measures to protect public health.
Source: World Trade Organization. Overview: the TRIPS Agreement [Internet]. Geneva, World Trade Organization, 2013 (http://www.wto.org/english/tratop_e/trips_e/intel2_e.htm, accessed 22 November 2013).
The most authoritative definition of the right to health is contained in the International Convention on Economic, Social and Cultural Rights (1966). It defines the right to health as an inclusive right which extends to timely and appropriate health care as well as to the underlying determinants of health, such as access to safe and potable water and adequate sanitation, adequate housing and healthy occupational and environmental conditions.
General Comment no. 14, adopted by the UN Committee on Economic, Social and Cultural Rights in 2000, sets out four elements to the right to health:
- Availability: A sufficient quantity of functioning public health and health care facilities, goods and services, as well as programmes (see Box 1).
- Accessibility: Health facilities, goods and services accessible to everyone, with four dimensions: non-discrimination, physical accessibility, economic accessibility (or affordability, see Box 2), and information accessibility.
- Acceptability: All health facilities, goods and services must be respectful of medical ethics and culturally appropriate as well as sensitive to gender and life-cycle requirements.
- Quality: Health facilities, goods and services must be scientifically and medically appropriate and of good quality.
Like all human rights, the right to health imposes three types of obligations on States Parties.
- Respect: This means not to interfere with the enjoyment of the right to health ("do no harm"). It includes ensuring that equal access to health care is not denied or limited for any population group, including prisoners, for example.
- Protect: This means ensuring that third parties do not infringe upon the enjoyment of the right to health. For example, to address noncommunicable, governments regulate non-state actors, including the alcohol, food and tobacco industry.
- Fulfill: This means taking positive steps to realize the right to health, such as adopting appropriate legislation, policies or budgetary measures. For example, developing a national health sector strategy or plan is part of the "core content", i.e. minimum essential level, of the right to health. Such as plan must address the health concerns of the whole population, including vulnerable or marginalized groups.
Not all countries have adequate resources to immediately ensure all human rights for all. Recognizing that this goal takes time and resources, the principle of progressive realization urges governments to move step by step, but as quickly and effectively as possible, towards the realization of the right to health. All countries should take deliberate, concrete and targeted steps, using the maximum available resources, including through international cooperation.
Box 2: Making health care accessible
Every year, about 150 million people suffer financial catastrophe, and 100 million are pushed into poverty, as a result of paying for health care. Equitable health financing mechanisms that protect the poorest households are important to ensure their access to health services. Countries in the Western Pacific Region increasingly recognize this. For example, PhilHealth, the Philippines' national health insurance system, recently committed to achieving full coverage to all Filipinos by 2016.
Source: Republic of the Philippines Official Gazette. Republic Act 10606: The National Health Insurance Act of 2013. [Internet]. Manila, Republic of the Philippines, 2013. (http://www.gov.ph/2013/06/19/republic-act-no-10606/, accessed 23 November 2013).
A human rights-based approach to health
A human rights-based approach to health is guided by human rights standards and norms, ensuring that health interventions support the capacity of duty-bearers (primarily States) to meet their obligations and empowering affected communities (rights-holders) to claim their rights. A human rights-based approach to health specifically aims to realize the right to health and other health-related human rights. It requires that all health interventions and processes are guided by the following core human rights standards and principles:
Non-discrimination & equality:
Elimination of all forms of discrimination is at the core of a human rights-based approach. In the last decade, the legal interpretation of non-discrimination has expanded to include grounds such as sex, physical or mental disability and health status. The prohibition of discrimination does not mean that differences should not be acknowledged. In fact, special measures may be required for disadvantaged groups. A starting point is often to ensure the availability of information disaggregated by relevant stratifiers. For example, the 2006-2016 New Zealand burden of diseases, injuries, and risk factors study stratifies data by sex, age, and Māori and non-Māori ethnic groups, and highlights the importance of extending analysis to the subnational level and ‘deprivation quintiles’ in future (1).
Participation & inclusion:
Free, meaningful and effective participation and inclusion of people and communities in decisions about the health policies or programmes that affect them is a cornerstone of good public health work as well as a human right. Communities can help to strengthen policies and should be involved in the design, implementation and monitoring and evaluation of programmes. For example, the 2012 HIV/AIDS progress report for Viet Nam (2) notes that people living with HIV played an increasingly active role in the national response. Working groups representing a key sub-population—men who have sex with men (MSM)—conducted work-shops with provincial policy-makers, health managers and workers, media, MSM community leaders and other duty bearers to reduce stigma and discrimination against MSM and improve uptake of HIV services among them. Adequate and sustainable financial and technical support is essential to enable meaningful participation (2).
Rights and obligations demand accountability. Decision-makers must be transparent about actions, and redress mechanisms should be established to investigate alleged violations. Accountability can be achieved through different mechanisms, including regular monitoring by and reporting to UN human rights treaty bodies, such as the UN Committee on Economic, Social and Cultural Rights, or through the legal system. At the national level, rights-based litigation in domestic courts is a growing trend since the 1990s and has increased the accountability of governments with regard to their obligations under international human rights law. It has also empowered individuals to claim their rights.
WHO supports Member States in building their capacity to design and implement health policies and programmes that enhance health equity and integrate pro-poor, gender-responsive, and human rights-based approaches. This entails:
- strengthening the capacity of WHO and its Member States to integrate a human rights-based approach to health;
- advancing the right to health in international law and international development processes;
- advocating for health-related human rights, including the right to health.
Public health practice is heavily burdened by… inadvertent discrimination. For example, outreach activities may ‘assume’ that all populations are reached equally by a single, dominant language message on television…. All public health policies and programmes should be considered discriminatory until proven otherwise. The burden should be on public health to affirm and ensure its respect for human rights.
- Jonathan Mann
1) Ministry of Health, New Zealand. Ways and Means: A report on methodology from the New Zealand Burden of Diseases, Injuries and Risk Factors Study, 2006–2016. Wellington, Ministry of Health, 2012.
(2) National Committee for AIDS, Drug and Prostitution Prevention and Control, Viet Nam. Viet Nam AIDS response progress report 2012. Hanoi, National Committee for AIDS, Drug and Prostitution Prevention and Control, 2012 (http://www.unaids.org/en/dataanalysis/knowyourresponse/countryprogressreports/2012countries/ce_VN_Narrative_Report.pdf, accessed 22 November 2013).