JORGE RODRIGUES SIMÃO

ADVOCACI NASCUNT, UR JUDICES SIUNT

(17) Human Rights

HR

Health

The right to health does not mean that we have the right to be healthy. The right to health is defined by UN expert Paul Hunt as: a right to an effective and integrated health system, encompassing health care and the underlying determinants of health, which is responsive to national and local priorities, and accessible to all. He uses the accessibility prism to point out that the right to health means that health care: must be accessible to all, not just the wealthy, but also those living in poverty; not just majority ethnic groups, but minorities and indigenous peoples, too; not just those living in urban areas, but also remote villagers; not just men, but also women.

The health system has to be accessible to all disadvantaged individuals and communities. The UN Committee on Economic, Social and Cultural Rights has developed an interpretation of the right to health contained in the UN Covenant. They use the same triptych of obligations to respect, protect, and fulfil that we discussed earlier. Their interpretation can be summarized as follows. First, the obligation to respect requires states to avoid measures that could prevent the enjoyment of the right.

Therefore, states are under the obligation to respect the right to health by, inter alia, refraining from (i) denying or limiting equal access for all persons to preventive, curative, and palliative health services; (ii) prohibiting or impeding traditional preventive care, healing practices, and medicines; (iii) marketing unsafe drugs; (iv) applying coercive medical treatments; (v) limiting access to contraceptives and other means of maintaining sexual and reproductive health; and (vi) censoring, withholding, or intentionally misrepresenting health-related information, including sexual education and information, as well as preventing people's participation in health-related matters.

Second, the obligation to protect requires states to take measures that prevent third parties from interfering with the right to adequate health care. Obligations to protect include, therefore, the duties of states to (i) adopt legislation or to take other measures ensuring equal access to health care and health-related services provided by third parties; (ii) 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; (iii) control the marketing of medical equipment and medicines by third parties; (iv) prevent third parties from coercing women to undergo traditional practices, such as female genital mutilation; and (v) take measures to protect all vulnerable or marginalized groups of society, in particular women, children, adolescents, and older persons. Finally, the obligation to fulfil requires states to take positive measures that enable individuals and groups to enjoy the right to health.

The obligation to fulfil requires states, for instance, to (i) give sufficient recognition to the right to health in the national, political, and legal systems, preferably by way of legislative implementation; (ii) adopt a national health policy with a detailed plan for realizing the right to health; (iii) ensure provision of health care, including immunization programmes against the major infectious diseases; (iv) 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; (v) ensure the appropriate training of doctors and other medical personnel, the provision of sufficient numbers of hospitals, clinics, and other health-related facilities with due regard to equitable distribution throughout the country; (vi) provide a public, private, or mixed health insurance system that is affordable for all; (vii) promote medical research and health education; and (viii) promote information campaigns, in particular with respect to HIV/AIDS, sexual and reproductive health, traditional practices, domestic violence, the abuse of alcohol, and the use of cigarettes, drugs, and other harmful substances. This all looks perfect on paper, and left to their own devices, most governments would claim they are doing their best to progressively realize all of the above, taking into account their available resources.

Hunt and others have therefore started to develop an accountability schema using indicators and benchmarks. This is how it works. First, key indicators are chosen. These should be disaggregated for gender or race, or other relevant characteristics as appropriate. The challenge is to ensure that all agencies and human rights bodies concentrate on equivalent indicators. The second step is for the government to set national benchmarks as a time-bound target. The government would propose various national benchmarks.

The relevant treaty monitoring body should approve or adjust the benchmark to ensure that the state fulfils its international obligations in this context. Lastly, as part of any periodic review, these benchmarks are reviewed by the various international and national actors concerned and, in this way, progress or regression can be monitored and, if necessary, corrected.

Here we are not really in the presence of judicially enforceable remedies for violations of rights; we are in the realm of thinking about issues such as health or trade or development in terms of a rights-based approach which focuses on concepts such as participation, accountability, non-discrimination, empowerment, and links to international legal norms. A contemporary controversy in the context of the right to health is the perceived clash with the intellectual property rights of multinational pharmaceutical companies. While states may have a duty under some legal regimes to protect intellectual property rights in ways that ensure the welfare of the society, intellectual property rights are not absolute human rights like the right not to be tortured. The interests of companies in earning enough from sales of their pharmaceuticals to enable them to fund further research and development have to be weighed by the state against the human rights of those needing access to health care. So far, this issue has remained a question of political action rather than a judicial weighing of competing rights.

A successful popular campaign was mounted against those pharmaceutical companies that sought to sue the South African Government of Nelson Mandela for the Government's failure to protect their intellectual property rights. In a related development, states have agreed, in the context of the international trade regime of the World Trade Organization (WTO), on trade law rules (designed to protect intellectual property rights) accommodating the obligation on states to provide accessible health care. Under a new procedure, generic medicines manufactured under compulsory licences can be imported and used by states in need. Access to essential medicines remains, however, a huge challenge. At the end of 2005, only 17% of those in need of anti-retroviral HIV treatment in Sub-Saharan Africa had access to these medicines.

The G7 leaders pledged in Scotland in 2005 that there should be as near as possible universal access to HIV treatment by 2010. Later in the year, all states agreed at the UN Summit that everyone, including the pharmaceutical companies, should work to ensure such access and to provide the necessary drugs to rid the African continent of tuberculosis and malaria.

 

Convention on the Rights of the Child

 

Art. 29 (l) States Parties agree that the education of the child shall be directed to: (a) The development of the child's personality, talents and mental and physical abilities to their fullest potential; (b) The development of respect for human rights and fundamental freedoms, and for the principles enshrined in the Charter of the United Nations; (c) The development of respect for the child's parents, his or her own cultural identity, language and values, for the national values of the country in which the child is living, the country from which he or she may originate, and for civilizations different from his or her own; (d) The preparation of the child for responsible life in a free society, in the spirit of understanding, peace, tolerance, equality of sexes, and friendship among all peoples, ethnic, national and religious groups and persons of indigenous origin; (e) The development of respect for the natural environment.

 

2006 Report of the Special Rapporteur on the Right of Everyone to the Enjoyment of the Highest Attainable Standard of Physical and Mental Health, Paul Hunt, paras 40-2

 

Sexual and reproductive health is integral elements of the right to health. So States need a way of measuring whether or not they are progressively realizing sexual and reproductive health. There are many relevant indicators, including the proportion of births attended by skilled health personnel. A State may select this indicator as one of those it uses to measure its progressive realization of sexual and reproductive health rights. The national data may show that the proportion of births attended by skilled health personnel is 60 per cent. When disaggregated on the basis of rural/urban, data may reveal that the proportion is 70 per cent in urban centres, but only 50 per cent in rural areas. When further disaggregated on the basis of ethnicity, data may also show that coverage in the rural areas is uneven: the dominant ethnic group enjoys a coverage of 70 per cent but the minority ethnic group only 40 per cent. This highlights the crucial importance of disaggregation as a means of identifying de facto discrimination. When disaggregated, the indicator confirms that women members of the ethnic minority in rural areas are especially disadvantaged and require particular attention. Consistent with the progressive realization of the right to health, the State may decide to aim for a uniform national coverage of 70 per cent, in both the urban and rural areas and for all ethnic groups, in five years' time. Thus, the indicator is the proportion of births attended by skilled health personnel and the benchmark or target is 70 per cent. The State will formulate and implement policies and programmes that are designed to reach the benchmark of 70 per cent in five years. The data show that the policies and programmes will have to be specially designed to reach the minority ethnic group living in the rural areas.

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