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World Health Organization

Health & Human RightsPublication SeriesIssue No.1, July 2002

25Questions

&Answers

Health

&HumanRights

25Questions

&Answers

Health

&HumanRights

onon


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2 5 Q u e s t i o n s & A n s w e r s o n H e a l t h a n d H u m a n R i g h t s

Acknowledgements:

25 Questions and Answers on Health and Human Rights was madepossible by support from the Government of Norway and was writtenby Helena Nygren-Krug, Health and Human Rights Focal Point, WHO,through a process of wide-ranging consultations. In particular,substantive guidance was provided by Andrew Cassels, AndrewClapham, Sofia Gruskin and Daniel Tarantola. Jenny Cook should alsobe acknowledged for background research, input and support.Additionally, input was provided by Robert Beaglehole, Gian LucaBurci, Nick Drager, Nathalie Drew, Alison Lakin, Debra Lipson, CraigMokhiber, Bill Pigott, Genevive Pinet, Nicole Valentine, JavierVelasquez, Simon Walker, and Dan Wikler. Finally, Catherine Browne,Annette Peters, Dorine Da re-van der Wal and Daryl Somma arethanked for their support.

World Health Organization, 2002

All rights reserved. Publications of the World Health Organization can be obtained from Marketing and Dissemination, WorldHealth Organization, 20 Avenue Appia, 1211 Geneva 27, Switzerland (tel: +41 22 791 2476; fax: +41 22 791 4857;

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The designations employed and the presentation of the material in this publication do not imply the expression of any opinionwhatsoever on the part of the World Health Organization concerning the legal status of any country, territory, city or area or of itsauthorities, or concerning the delimitation of its frontiers or boundaries. Dotted lines on maps represent approximate border linesfor which there may not yet be full agreement.

The mention of specific companies or of certain manufacturers products does not imply that they are endorsed or recommendedby the World Health Organization in preference to others of a similar nature that are not mentioned. Errors and omissionsexcepted, the names of proprietary products are distinguished by initial capital letters.

The World Health Organization does not warrant that the information contained in this publication is complete and correct andshall not be liable for any damages incurred as a result of its use.

Typeset and printed in France. Cover photo: WHO/PAHO - Designer: Franois Jarriau/Kaolis.

WHO Library Cataloguing-in-Publication Data

Questions and answers on health and human rights.(Health and human rights publication series)1.Human rights - 2. Public health - 3.Health policy - 4.International law - 5.Guidelines - I. World Health Organization - II. Series

ISBN 92 4 154569 0 (NLM classification: WA 30)ISSN 1684-1700


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World Health Organization

25 Questions& Answers

onHealth & Human

Rights


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4

It is my aspiration that health will finallybe seen not as a blessing to be wished for,but as a human right to be fought for.

United Nations Secretary General, Kofi Annan


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5


The enjoyment of the highest attainable standard of health as afundamental right of every human being was enshrined inWHOs Constitution over fifty years ago. In our daily work,

WHO is striving to make this right a reality for everyone, payingparticular attention to the poorest and most vulnerable.

The human rights discourse provides us with an inspirationalframework as well as a useful guide for analysis and action. TheUnited Nations human rights mechanisms provide importantavenues towards increasing accountability for health.

Attention to human rights is growing worldwide. WHO is activelyengaged in increasing its understanding of human rights in relationto health. We are learning from other United Nations agencies, the

international community, and other stakeholders.

It is in this context that WHO has launched the Health and HumanRights Publication Series. We have chosen 25 Questions andAnswers as the first in this series, suggesting answers to keyquestions which explore the linkages between different aspects ofhealth and human rights.

I hope this Q & A will provide guidance to a broad audienceinterested in the relationship between health and human rights.

Gro Harlem BrundtlandGeneva

July 2002

Foreword

WHO


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Abbreviations and Acronyms 6

Section 1: Health and Human Rights Norms and Standards 7

Q.1 What are human rights? 7

Q.2 How are human rights enshrined in international law? 7

Q.3 What is the link between health and human rights? 8

Q.4 What is meant by the right to health? 9

Q.5How does the principle of freedom from discrimination relate to health?

11

Q.6 What international human rights instruments set out governmental commitments? 12

Q.7 What international monitoring mechanisms exist for human rights? 12

Q.8 How can poor countries with resource limitations be held to the same human rights

standards as rich countries? 14

Q.9 Is there, under human rights law, an obligation of international cooperation? 14

Q.10 What are governmental human rights obligations in relation to other actors in society? 15

Section 2: Integrating Human Rights in Health 16

Q.11 What is meant by a rights-based approach to health? 16

Q.12.What is the value-added of human rights in public health? 18

Q.13.What happens if the protection of public health necessitates the restriction

of certain human rights? 18

Q.14 What implications could human rights have for evidence-based health information? 19

Q.15 How can human rights support work to strengthen health systems? 20

Q.16 What is the relationship between health legislation and human rights law? 21

Q.17 How do human rights apply to situational analyses of health in countries? 21

Section 3: Health and Human Rights in a Broader Context 22

Q.18 How do ethics relate to human rights? 22

Q.19 How do human rights principles relate to equity? 22

Q.20How do health and human rights principles apply to poverty reduction? 23

Q.21 How does globalization affect the promotion and protection of human rights? 24

Q.22How does international human rights law influence international trade law? 25

Q.23What is meant by a rights-based approach to development? 26

Q.24How do human rights law, refugee law and humanitarian law interact with the provision

of health assistance? 27

Q.25How does human rights relate to health development work in countries? 28

Annex I: Legal Instruments 29

Annex II: United Nations Human Rights Organizational Structure 32

Table of Contents


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8

ACC Administrative Committee on Coordination

CAT Convention against Torture and Other Cruel, Inhuman or Degrading Treatment

or Punishment (1984)

CCA Common Country Assessment

CCPOQ Consultative Committee on Programme and Operational Questions

CDF Comprehensive Development Framework

CEDAW Convention on the Elimination of All Forms of Discrimination Against Women

(1979)

CERD International Convention on the Elimination of All Forms of Racial Discrimination

(1963)

CRC Convention on the Rights of the Child (1989)

ECOSOC Economic and Social Council

IACHR Inter-American Commission on Human Rights

ICCPR International Covenant on Civil and Political Rights (1966) and its two Protocols

(1966 and 1989)

ICESCR International Covenant on Economic, Social and Cultural Rights (1966)

ILO International Labour Organisation

IMF International Monetary Fund

NGO Non-Governmental Organization

OHCHR United Nations Office of the High Commissioner for Human Rights

PAHO Pan-American Health Organization

PRSP Poverty Reduction Strategy Paper

UN United Nations

TRIPS Trade Related Aspects of Intellectual Property Rights

UDHR Universal Declaration of Human Rights (1948)

UNDP United Nations Development Programme

UNDAF United Nations Development Assistance Framework

UNGASS United Nations General Assembly Special Session

UNICEF United Nations Childrens Fund

WANAHR World Alliance for Nutrition and Human Rights

WHO World Health Organization

WTO World Trade Organization

Abbreviations and Acronyms


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9


Q.1 What are human

rights?

Human rights are legally guaranteed byhuman rights law, protecting individuals andgroups against actions that interfere with fun-damental freedoms and human dignity.(3) Theyencompass what are known as civil, cultural,economic, political and social rights. Humanrights are principally concerned with the rela-tionship between the individual and the state.Governmental obligations with regard to

human rights broadly fall under the principlesof respect, protect and fulfil.(4)

All human rights are universal, indivisi-ble and interdependent and interrelated.The international community must treathuman rights globally in a fair and equalmanner, on the same footing, and with thesame emphasis. While the significance of

national and regional particularities andvarious historical, cultural and religiousbackgrounds must be borne in mind, it isthe duty of States, regardless of their polit-ical, economic and cultural systems, topromote and protect all human rights andfundamental freedoms.

Vienna Declaration and Programme

of Action adopted at the World Conference

on Human Rights.(5)

Q.2 How are humanrights enshrinedin international law?

In the aftermath of World War II, the internationalcommunity adopted the Universal Declaration ofHuman Rights (UDHR, 1948). However, by thetime that States were prepared to turn the provi-sions of the Declaration into binding law, the ColdWar had overshadowed and polarised humanrights into two separate categories. The Westargued that civil and political rights had priorityand that economic and social rights were mereaspirations. The Eastern bloc argued to the con-trary that rights to food, health and education

were paramount and civil and political rights sec-ondary. Hence two separate treaties were createdin 1966 the International Covenant on Economic,Social and Cultural Rights (ICESCR) and the Inter-national Covenant on Civil and Political Rights(ICCPR). Since then, numerous treaties, declara-tions and other legal instruments have beenadopted, and it is these instruments that encapsu-late human rights.

Section1:

Health & HumanRights Normsand Standards

(1) AdministrativeCommittee onCoordination (ACC); TheUnited Nations Systemand Human Rights:Guidelines andInformation for theResident CoordinatorSystem; approved onbehalf of the ACC by theConsultative Committee on

Programme andOperational Questions(CCPOQ) at its 16thSession, Geneva, March2000.(2) This means that theyapply to everyoneeverywhere.(3) Human Rights: A BasicHandbook for UN Staffissued by the Office of theHigh Commissioner forHuman Rights (OHCHR)and the United NationsStaff College Project, 1999,p.3.(4) In turn, the obligationto fulfil containsobligations to facilitate,

provide and promote(Section II.33, footnote 23of General Comment 14 onthe right to the highestattainable standard ofhealth adopted by theCommittee on Economic,Social and Cultural Rightsin May 2000),(E/C.12/2000/4, CESCRdated 4 July 2000).(5) Vienna Declaration andProgramme of Actionadopted at the WorldConference on HumanRights, Vienna, 14-25 June1993, paragraph 5, (UnitedNations General Assemblydocument A / CONF.137/23).

WHO/PAHO

International human rights treaties arebinding on governments that ratify them;

Declarations are non-binding, althoughmany norms and standards enshrinedtherein reflect principles which are bindingin customary international law;

United Nations conferences generate non-binding consensual policy documents, suchas declarations and programmes of action.

Human Rights:(1)

Are guaranteed by international standards; Are legally protected; Focus on the dignity of the human being; Protect individuals and groups; Oblige states and state actors; Cannot be waived or taken away; Are interdependent and interrelated; Are universal.(2)


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It was never the people who complainedof the universality of human rights, nor didthe people consider human rights as aWestern or Northern imposition. It wasoften their leaders who did so.

United Nations Secretary-General,

Kofi Annan

Q.3 What is the linkbetween healthand human rights?

There are complex linkages between health andhuman rights: Violations or lack of attention to human

rights can have serious health conse-quences; (6)

Health policies and programmes can pro-mote or violate human rights in the waysthey are designed or implemented;

Vulnerability and the impact of ill health canbe reduced by taking steps to respect, protectand fulfil human rights.

The normative content of each right is fullyarticulated in human rights instruments. Inrelation to the right to health and freedom fromdiscrimination, the normative content is out-lined in Questions 4 and 5, respectively. Exam-ples of the language used in human rightsinstruments to articulate the normative contentof some of the other key human rights relevantto health follows:

Torture: No one shall be subjected to torture

or to cruel, inhuman or degrading treatmentor punishment. In particular, no one shall besubjected without his free consent to medicalor scientific experimentation. (7)

Violence against children: All appropriatelegislative, administrative, social and educa-tional measures to protect the child from allforms of physical or mental violence, injuryor abuse, neglect or negligent treatment, mal-treatment or exploitation, including sexualabuse... shall be taken. (8)

Harmful traditional practices: Effective andappropriate measures with a view to abolish-ing traditional practices prejudicial to thehealth of children shall be taken. (9)

Participation: The right to active, free andmeaningful participation. (10)

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(6) Mann J, Gostin L,GruskinS, Brennan T,Lazzarini Z, and FinebergHV, Health and HumanRights, Health and HumanRights: An International

Journal, Vol. 1, No. 1, 1994.

(7) Article 7, ICCPR. Theprohibition of torture isalso articulated in otherhuman rights instruments,including the CAT andarticle 37 of the CRC.(8) Article 19, CRC.The prohibition of violenceagainst women is alsoarticulated in theDeclaration on theElimination of ViolenceAgainst Women, 1993.(9) Article 24, CRC.The prohibition of harmfultraditional practicesagainst women is alsoarticulated in theDeclaration on the

Elimination of ViolenceAgainst Women, andGeneral Recommendation24 on Women and Healthof the Committee onthe Elimination of all formsof Discrimination AgainstWomen, 1999.(10) Article 2, Declarationon the Right toDevelopment, 1986.The right to participationis also articulated in otherhuman rights instruments,including article 25 of theICCPR, article 15 of theICESCR, article 5 of CERD,articles 7, 8, 13 and 14of CEDAW, and articles 3,9 and 12 of the CRC.

Examples of the links between Health and Human RightsExamples of the links between Health and Human Rights


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Information: Freedom to seek, receive andimpart information and ideas of all kinds. (11)

Privacy: No one shall be subjected toarbitrary or unlawful interference with his

privacy...(12)

Scientific progress: The right of everyone toenjoy the benefits of scientific progress and itsapplications. (13)

Education: The right to education, (14) includ-ing access to education in support of basicknowledge of child health and nutrition, theadvantages of breast-feeding, hygiene andenvironmental sanitation and the preventionof accidents. (15)

Food and nutrition: The right of everyone to

adequate food and the fundamental right ofeveryone to be free from hunger (16)

Standard of living: Everyone has the right toan adequate standard of living, including ade-quate food, clothing, housing, and medicalcare and necessary social services. (17)

Right to social security: The right of everyoneto social security, including social insurance. (18)

Q.4 What is meantby the right

to health?

The right to health does not mean theright to be healthy, nor does it mean thatpoor governments must put in placeexpensive health services for which theyhave no resources. But it does requiregovernments and public authorities to putin place policies and action plans whichwill lead to available and accessible healthcare for all in the shortest possible time. Toensure that this happens is the challengefacing both the human rights communityand public health professionals.

United Nations High Commissioner

for Human Rights, Mary Robinson

The right to the highest attainable standard ofhealth (referred to as the right to health) wasfirst reflected in the WHO Constitution (1946) (20)

and then reiterated in the 1978 Declaration ofAlma Ata and in the World Health Declarationadopted by the World Health Assembly in1998. (21) It has been firmly endorsed in a widerange of international and regional humanrights instruments. (22)

The right to the highest attainable standard ofhealth in international human rights law is a

claim to a set of social arrangements norms,institutions, laws, an enabling environment that can best secure the enjoyment of this right.The most authoritative interpretation of the rightto health is outlined in Article 12 of the ICESCR,which has been ratified by 145 countries (as ofMay 2002). In May 2000, the Committee on Eco-nomic, Social and Cultural Rights, which moni-tors the Covenant, adopted a General Commenton the right to health. (23) General Commentsserve to clarify the nature and content of indi-

vidual rights and States Parties (those states thathave ratified) obligations. The General Commentrecognized that the right to health is closely relat-ed to and dependent upon the realization ofother human rights, including the right to food,housing, work, education, participation, theenjoyment of the benefits of scientific progressand its applications, life, non-discrimination,equality, the prohibition against torture, privacy,access to information, and the freedoms of asso-ciation, assembly and movement.

(11) Article 19, ICCPR.The right to informationis also articulated in otherhuman rights instruments,including articles 10,14 and 16 of the CEDAW,and articles 13, 17and 24 of the CRC.(12) Article 17, ICCPR.The right to privacy is alsoarticulated in other humanrights instruments,including article 16of CEDAW, and article40 of the CRC.(13) Article 15, ICESCR.(14) Article 13, ICESCR.The right to education isalso articulated in other

human rights instruments,including article 5 of CERD,articles 10 and 16 of CEDAW,and articles 19, 24, 28and 33 of the CRC.(15) Article 24, CRC.(16) Article 11, ICESCR.The right to food is alsoarticulated in other humanrights instruments,including article 12of CEDAW, and article 27of the CRC.(17) Article 25 UDHRand article 11 ICESCR.(18) Article 9, ICESCR.The right to social securityis also articulated in otherhuman rights instruments,

including article 5 of CERD,articles 11, 13 and 14of CEDAW, and article 26of the CRC.(19) 18 February 1992,UN General AssemblyResolution on the Protectionof Persons with MentalIllness and the Improvementof Mental Health Care,Principle 1 (A/RES/46).(20) Basic Documents,Forty-third Edition, Geneva,World Health Organization,2001. The Constitutionwas adopted bythe International HealthConference in 1946.(21) WHA51.7, annex.

Persons suffering from mental disabilities

are particularly vulnerable to discrimination.Not only does this impact negatively on theirability to access appropriate treatment andcare but the stigma associated with mentalillness means that they experience discrimi-nation in many other aspects of their lives,affecting their rights to employment, ade-quate housing, education, etc.

The United Nations Resolution on the Protec-tion of Persons with Mental Illness, prohibits dis-crimination on the grounds of mental illness. (19)

Grgoire Ahongbonon


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Further, the Committee interpreted the right tohealth as an inclusive right extending not onlyto timely and appropriate health care but alsoto the underlying determinants of health, suchas access to safe and potable water andadequate sanitation, an adequate supply of safefood, nutrition and housing, healthy occupa-tional and environmental conditions, andaccess to health-related education and informa-tion, including on sexual and reproductivehealth.

The General Comment sets out four criteria bywhich to evaluate the right to health: (24)

(a) Availability. Functioning public health andhealth-care facilities, goods and services, aswell as programmes, have to be available insufficient quantity. (25)

(b) Accessibility. Health facilities, goods andservices have to be accessible to everyone with-out discrimination, within the jurisdiction ofthe State party. Accessibility has four overlap-ping dimensions:

Non-discrimination;(26)

Physical accessibility; (27)

Economic accessibility (affordability); (28)

Information accessibility.(29)

(c) Acceptability. All health facilities, goodsand services must be respectful of medicalethics and culturally appropriate, sensitive togender and life-cycle requirements, as well asbeing designed to respect confidentiality andimprove the health status of those concerned.

(d) Quality. Health facilities, goods and servic-es must be scientifically and medically appro-priate and of good quality (30).

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(22) The human right tohealth is recognized innumerous internationalinstruments. Article 25(1)of the UDHR affirms thateveryone has a right to astandard of living adequatefor the health of himselfand his family, includingfood, clothing, housing,and medical care andnecessary social services.The ICESCR provides themost comprehensive article

on the right to health ininternational human rightslaw. According to article12(1) of the Covenant,States Parties recognizethe right of everyone tothe enjoyment of thehighest attainable standardof physical and mentalhealth, while article 12(2)enumerates, by way ofillustration, a number ofsteps to be taken by theStates Parties to achievethe full realization of thisright. Additionally, theright to health isrecognized, inter alia, in theCERD of 1963, the CEDAWof 1979 and in the CRC of1989. Several regionalhuman rights instrumentsalso recognize the right tohealth, such as theEuropean Social Charter of1961 as revised, the AfricanCharter on Human andPeoples Rights of 1981 andthe Additional Protocol tothe American Conventionon Human Rights in theArea of Economic, Socialand Cultural Rights of 1988(the Protocol entered intoforce in 1999). Similarly,the right to health has beenproclaimed by theCommission on HumanRights and furtherelaborated in the ViennaDeclaration and Programme

of Action of 1993 and otherinternational instruments.(23) General Comment 14.(24) General Comment 14.(25) This should includethe underlyingdeterminants of health,such as safe and potabledrinking-water andadequate sanitationfacilities, hospitals, clinicsand other health-relatedbuildings, trained medicaland professional personnelreceiving domesticallycompetitive salaries, andessential drugs, as definedby the WHO ActionProgramme on EssentialDrugs.(26) Health facilities,goods and services mustbe accessible to all, in lawand in fact, withoutdiscrimination on anyof the prohibited grounds.(27) Health facilities, goodsand services must be withinsafe physical reach for allsections of the population,especially vulnerable ormarginalized groups, suchas ethnic minorities andindigenous populations,women, children,adolescents, older persons,persons with disabilitiesand persons with HIV/AIDS,including in rural areas.

Underlyingdeterminants

Health-care

All Countries

193

Countries thatRatified the

ICESCR

142

Countries thatRatified RegionalTreaties with aRight to Health

83

Countries thatRecognize

a Right to Healthin their National

Constitutions

109

Source: Eleanor D. Kinney, The International Human Right to Health:What Does This Mean For Our Nation And World? Indiana LawReview, Vol. 34, page 1465, 2001.

The following graph illustrates the number of countriesthat recognize the right to health at different levels:

The Right to HealthThe Right to Health

National Recognitionof a Right to Health

National Recognitionof a Right to Health


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Q.5 How does the principleof freedom fromdiscrimination relateto health?

Vulnerable and marginalized groups in soci-eties tend to bear an undue proportion of healthproblems. Overt or implicit discrimination vio-lates a fundamental human rights principle andoften lies at the root of poor health status. Inpractice, discrimination can manifest itself ininadequately targeted health programmes andrestricted access to health services.

The prohibition of discrimination does not meanthat differences should not be acknowledged,only that different treatment and the failure to

treat equal cases equally must be based onobjective and reasonable criteria intended torectify imbalances within a society.

In relation to health and health-care the groundsfor non-discrimination have evolved and cannow be summarized as proscribing anydiscrimination in access to health care and theunderlying determinants of health, as well as tomeans and entitlements for their procurement,on the grounds of race, colour, sex, language,

religion, political or other opinion, national orsocial origin, property, birth, physical or mentaldisability, health status (including HIV/AIDS),sexual orientation, civil, political, social orother status, which has the intention or effect ofnullifying or impairing the equal enjoyment orexercise of the right to health. (32)

Public health practice is heavily

burdened by the problem of inadvertentdiscrimination. For example, outreachactivities may assume that all popu-lations are reached equally by a single,dominant-language message on television;or analysis forgets to include healthproblems uniquely relevant to certaingroups, like breast cancer or sickle celldisease; or a problem ignores the actualresponse capability of different popu-lation groups, as when lead poisoning

warnings are given without concern forfinancial ability to ensure lead abatement.Indeed, inadvertent discrimination is soprevalent that all public health policiesand programmes should be considereddiscriminatory until proven otherwise,placing the burden on public health toaffirm and ensure its respect for humanrights.

Jonathan Mann(33)

(28) Health facilities,goods and servicesmust be affordable for all.Payment for health-careservices, as well asservices related to theunderlying determinantsof health, has to be basedon the principle of equity,ensuring that these

services, whether privatelyor publicly provided, areaffordable for all.(29) Accessibility includesthe right to seek, receiveand impart informationand ideas concerninghealth issues. However,accessibility of informationshould not impair the rightto have personal healthdata treated withconfidentiality.(30) This requires, interalia, skilled medicalpersonnel, scientificallyapproved and unexpireddrugs and hospitalequipment, safe andpotable water, andadequate sanitation.

(31) Declaration onthe Elimination of Violenceagainst Women,85th plenary meeting,20 December 1993,(A/RES/48/104),preamble.(32) General Comment 14.(33) The Hastings CenterReport, Volume 27, No.3,May-June 1997, p. 9.

WHO/PAHO

Discrimination manifests itself in a com-

plex variety of ways, which may directly orindirectly, impact upon health. For example,the Declaration on the Elimination of Violenceagainst Women recognizes the link betweenviolence against women and the historicallyunequal power relations between men andwomen. (31)


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WHO / P. Virot


Q.6 What internationalhuman rights

instrumentsset outgovernmentalcommitments?

Governments decide freely whether or not tobecome parties to a human rights treaty. Oncethis decision is made, however, there is a com-mitment to act in accordance with the provi-

sions of the treaty concerned. The key interna-tional human rights treaties, the InternationalCovenant on Economic, Social and CulturalRights (ICESCR, 1966) and the InternationalCovenant on Civil and Political Rights (ICCPR,1966) further elaborate the content of the rightsset out in the Universal Declaration of HumanRights (UDHR, 1948), and contain legally bind-ing obligations for the governments thatbecome parties to them. Together these docu-ments are often called the International Bill of

Human Rights.

Building upon these core documents, otherinternational human rights treaties havefocused on either specific groups or categoriesof populations, such as racial minorities, (34)

women (35) and children, (36) or on specific issues,such as torture. (37) In considering a normativeframework of human rights applicable tohealth, human rights provisions must be con-

sidered in their totality.

The Declarations and Programmes of Actionfrom United Nations world conferences such asthe World Conference on Human Rights (Vien-na, 1993), the International Conference on Pop-ulation and Development (Cairo, 1994), theWorld Summit for Social Development (Copen-hagen, 1995), the Fourth World Conference onWomen (Beijing, 1995) and the World ConferenceAgainst Racism, Racial Discrimination, Xeno-

phobia and Related Intolerance (Durban, 2001),provide guidance on some of the policy impli-cations of meeting governments human rightsobligations.

Q.7 What internationalmonitoringmechanisms existfor human rights?

The implementation of the core human rightstreaties is monitored by committees of inde-pendent experts known as treaty monitoringbodies, created under the auspices of andserviced by the United Nations. Each of thesix major human rights treaties has its ownmonitoring body which meets regularly toreview State Party reports and to engage in aconstructive dialogue with governments

on how to live up to their human rights obli-gations. Based on the principle of transparen-cy, States are required to submit their progressreports to the treaty bodies, and to make themwidely available to their own populations.Thus reports can play an important catalyticrole, contributing to the promotion of nation-al debate on human rights issues, encourag-ing the engagement and participation of civilsociety, and generally fostering a process ofpublic scrutiny of governmental policies. At

the end of the session, the treaty body makesconcluding observations which include rec-ommendations on how the government canimprove its human rights record. Specializedagencies such as WHO can play an importantrole in providing relevant health informationto facilitate the dialogue between the StateParty and the treaty monitoring body.

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(34) InternationalConvention on theElimination of All Formsof Racial Discrimination,1963.(35) Convention on theElimination of All Formsof Discrimination AgainstWomen, 1979.(36) Convention on theRights of the Child, 1989.(37) Convention AgainstTorture and other Cruel,Inhuman or DegradingTreatment or Punishment,1984.

Every country in the world is now partyto at least one human rights treaty thataddresses health-related rights, includingthe right to health, and a number of rightsrelated to conditions necessary for health.


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Other mechanisms for monitoring humanrights in the United Nations system includethe Commission on Human Rights and theSub-Commission on the Promotion andProtection of Human Rights. These bodiesappoint special rapporteurs and otherindependent experts and working groups tomonitor and report on thematic human rightsissues (such as violence against women, saleof children, harmful traditional practices, and

torture) or on specific countries. In addition,the post of High Commissioner for HumanRights was created in 1994 to head the UnitedNations human rights system. The HighCommissioners mandate extends to everyaspect of the United Nations human rightsactivities: monitoring, promotion, protectionand coordination.

Regional arrangements have been establishedwithin existing regional intergovernmentalorganizations. The African regional humanrights instrument is the African Charter onHuman and Peoples Rights, which is locatedwithin the Organization of African Unity. Theregional human rights mechanism for theAmericas is located within the Organizationof American States and is based upon theAmerican Convention of Human Rights. InEurope, a human rights system forms a part ofthe Council of Europe. Key human rightsinstruments are the European Convention on

the Protection of Human Rights and Funda-mental Freedoms and the European SocialCharter. (38) The 15 member state organization the European Union has detailed rulesconcerning human rights issues and has inte-grated human rights into its common foreignpolicy. In addition, the Organization for Secu-rity and Cooperation in Europe (OSCE), a 55member state organization, has separatemechanisms and agreements. In the Asia-Pacific region, extensive consultations among

Governments are underway concerning thepossible establishment of regional humanrights arrangements.

(38)

http://conventions.coe.int/Treaty/EN/CadreListeTraites.htm.(39) This recommendationwas included in the IACHRannual report (2001),constituting the first timethe latter has devoted asection to mental disabilityrights.

The collaboration between PAHO/WHOand the Inter-American Commission onHuman Rights (IACHR, the body responsiblefor overseeing the American Convention onHuman Rights) concerning the rights of per-sons with mental disabilities, is an example

of the key role specialized agencies can playwithin international monitoring mecha-nisms. PAHO/WHO offers technical opinionsand assistance on the interpretation of theAmerican Convention on Human Rights andthe American Declaration on the Rights andDuties of Man, in light of international stan-dards on mental disability rights. In turn, theIACHR incorporates these standards intofinal reports of relevant individual cases andin country reports. As a result of this technicalassistance, the IACHR has issued the

Recommendation for the Promotion andProtection of the Rights of the Mentally Ill(28 February 2001). (39)

WHO/PAHO


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Q.8 How can poorcountries with

resource limitationsbe held to the samehuman rightsstandards asrich countries?

Steps towards the full realization of rightsmust be deliberate, concrete and targeted asclearly as possible towards meeting a govern-

ments human rights obligations. (40) All appro-priate means, including the adoption of leg-islative measures and the provision of judicialremedies as well as administrative, financial,educational and social measures, must beused in this regard. This neither requires norprecludes any particular form of governmentor economic system being used as the vehiclefor the steps in question.

The principle ofprogressive realization of human

rights (41) imposes an obligation to move as expe-ditiously and effectively as possible towardsthat goal. It is therefore relevant to both poorerand wealthier countries, as it acknowledges theconstraints due to the limits of availableresources, but requires all countries to showconstant progress in moving towards full

realization of rights. Any deliberately retro-gressive measures require the most carefulconsideration and need to be fully justified byreference to the totality of the rights providedfor in the human rights treaty concerned and inthe context of the full use of the maximum avai-lable resources. In this context, it is important todistinguish the inability from the unwillingnessof a State Party to comply with its obligations.During the reporting process the State Party

and the Committee identify indicators andnational benchmarks to provide realistic targetsto be achieved during the next reporting period.

Q.9 Is there, underhuman rights law,

an obligationof internationalcooperation?

Malaria, HIV/AIDS and tuberculosis areexamples of diseases which disproportionate-ly affect the worlds poorest populations,placing a tremendous burden on theeconomies of developing countries. In this

regard, it should be noted that although thehuman rights paradigm concerns obligationsof States with respect to individuals andgroups within their own jurisdictions, wherethe human rights instruments refer to theStates resources, they include internationalassistance and cooperation.

In accordance with Articles 55 and 56 of theCharter of the United Nations, internationalcooperation for development and the reali-

zation of human rights is an obligation of allStates. Similarly, the Declaration on the Rightto Development (42) emphasizes an activeprogramme of international assistance andcooperation based on sovereign equality,interdependence, and mutual interest. (43)

In addition, the ICESCR requires each Statewho is party to the Covenant to take steps,individually and through internationalassistance and cooperation, especially

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(40) ICESCR GeneralComment 3 on the natureof States Partiesobligations adoptedby the Committee onEconomic, Social andCultural Rights, FifthSession 1990 (E/1991/23).(41) ICESCR, Article 2 (1).(42) Adopted bythe General Assemblyin its resolution 41/128of 4 December 1986.(43) Declaration onthe Right to Development,Article 3, adoptedby General Assemblyresolution 41/128of 4 December 1986.

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economic and technical, to the maximum ofits available resources, with a view to achievingprogressively the full realization of the rightsrecognized [herein]. (44)

In this spirit, the framework of internationalcooperation is referred to, which acknowl-edges, for instance, that the needs of develop-ing countries should be taken into conside-ration in the area of health. The role ofspecialized agencies is recognized in humanrights treaties in this context. For example, theICESCR stresses that international action forthe achievement of the rights... includes suchmethods as ... furnishing of technical assis-

tance and the holding of regional meetingsand technical meetings for the purpose ofconsultation and study organized in conjunc-tion with the Governments concerned. (45)

Q.10 What aregovernmentalhuman rights

obligationsin relation to otheractors in society?

As government roles and responsibilitiesinclude increased reliance on non-state actors(health insurance companies, etc.), govern-mental health systems must ensure theexistence of social safety nets and other

mechanisms to ensure that vulnerable popu-lation groups have access to the services andstructures they need.

The obligation of the State to protect humanrights means that governments are responsiblefor ensuring that non-state actors act in con-formity with human rights law within theirjurisdiction. Governments are obliged toensure that third parties conform with humanrights standards by adopting legislation, poli-cies and other measures to assure adequateaccess to health care, quality information, etc.,and an accessible means of redress if indivi-duals are denied access to these goods and

services. An example of this is the obligation ofgovernments to ensure the regulation of thetobacco industry in order to protect its popu-lation against infringements of the right tohealth, the right to information, and otherrelevant human rights provisions.

In the corporate and NGO contexts, (46) there is aproliferation of voluntary codes which reflectinternational human rights norms and stan-dards. Increasing attention to the human rights

implications of work in the private sector hasresulted in human rights being placed higheron the business agenda, with several busi-nesses beginning to incorporate concern forhuman rights into their daily operations. (47)

(44) ICESCR, Article 2.

(45) ICESCR, Article 23.(46) In the area ofhumanitarian assistance,for example, the SphereProjects (draft) Charteron Minimum HumanitarianStandards in DisasterRelief provides acomprehensive catalogueof technical standards forNGO and otherinternational relief workerson matters such as food,nutrition, water andsanitation, based uponinternational human rightslaw.(47) http: // www.unglobalcompact.org.

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Q.11 What is meantby a rights-basedapproach to health?

A rights-based approach to health refers to theprocesses of:

Using human rights as a framework for healthdevelopment. (48)

Assessing and addressing the human rightsimplications of any health policy, programme orlegislation.

Making human rights an integral dimensionof the design, implementation, monitoring

and evaluation of health-related policies andprogrammes in all spheres, including political,economic and social.

Substantive elements to apply, within theseprocesses, could be as follows:

Safeguarding human dignity.

Paying attention to those population groupsconsidered most vulnerable in society. (49) In

other words, recognizing and acting uponthe characteristics of those affected by healthpolicies, programmes and strategies chil-dren (girls and boys), adolescents, women,and men; indigenous and tribal populations;national, ethnic, religious and linguisticminorities; internally displaced persons;refugees; immigrants and migrants; the eld-erly; persons with disabilities; prisoners; eco-nomically disadvantaged or otherwise mar-ginalized and/or vulnerable groups.

Ensuring health systems are made accessibleto all, especially the most vulnerable or mar-ginalized sections of the population, in lawand in fact, without discrimination on any ofthe prohibited grounds.

Using agenderperspective, recognizing thatboth biological and sociocultural factors playa significant role in influencing the health of

men and women, and that policies and pro-grammes must consciously set out to addressthese differences.

Ensuring equality and freedom fromdiscrimination, advertent or inadvertent, inthe way health programmes are designed orimplemented.

Section 2:

IntegratingHumanRightsin Health

(48) See Question 3for an explanation ofthe links between healthand human rights.(49) Many are spelt outin specific human rightsinstruments, such as theInternational LabourOrganisation Conventionconcerning Indigenousand Tribal Peoples inIndependent Countries(No. 169, 1989) and theInternational Conventionon the Protection of theRights of All MigrantWorkers and Membersof their Families (1990).

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A rights-based approach to health entailsrecognizing the individual characteristics ofthe population groups concerned. In allactions relating to children, for example, theguiding principles of the Convention on theRights of the Child should be applied. Theseinclude:

The best interests of the child shall be aprimary consideration;

The views of the child shall be given dueweight.


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Disaggregatinghealth data to detect under-lying discrimination.

Ensuring free, meaningful, and effectiveparticipation of beneficiaries of health devel-opment policies or programmes in decision-making processes which affect them.

Promoting and protecting the right to educa-tion and the right to seek, receive and impartinformation and ideas concerning healthissues. However, the right to informationshould not impair the right toprivacy, which

means that personal health data should betreated with confidentiality.

Only limiting the exercise or enjoyment of aright by a health policy or programme as alast resort, and only considering this legiti-mate if each of the provisions reflected in theSiracusa principles is met.(51) (See Question 13).

Juxtaposing the human rights implications ofany health legislation, policy or programme

with the desired public health objectives andensuring the optimal balance between goodpublic health outcomes and the promotionand protection of human rights.

Making explicit linkages to internationalhuman rights norms and standards to high-light how human rights apply and relate to ahealth policy, programme or legislation.

Making the attainment of the right to the

highest attainable standard of health theexplicit ultimate aim of activities, which haveas their objective the enhancement of health.

Articulating the concrete government obliga-tions to respect, protect and fulfil humanrights.

Identifying benchmarks and indicators toensure monitoring of the progressive realiza-tion of rights in the field of health.

Increasing transparency in, and accounta-bility for, health as a key consideration at allstages of programme development.

Incorporating safeguards to protect againstmajoritarian threats upon minorities,migrants and other domestically unpopu-lar groups, in order to address power imbal-ances. For example, by incorporating redressmechanisms in case of impingements onhealth-related rights.

(50) Eds. Mann J,Gruskin S, Grodin M,Annas G, Health andHuman Rights: A Reader,(Routledge, 1999),Introduction, para. 4.(51) The Siracusaprinciples on the limitationand derogation provisionsin the internationalcovenant on civil andpolitical rights. UN Doc.E/CN.4/1985/4, Annex.

Possible ingredients

in a rights-based approach to health:

Right to health

Information

GenderHuman dignity

Transparency

Siracusa principles

Benchmarks and indicators

Accountability

Safeguards

Equality and freedom from discrimination

Dissaggregation

Attention to vulnerable groups

Participation

Privacy

Right to education

Optimal balance between public healthgoals and protection of human rights

Accessibility

Concrete government obligations

Human rights expressly linked

It has been demonstrated that respectfor human rights in the context of HIV/AIDS,mental illness, and physical disability leadsto markedly better prevention and treat-ment. Respect for the dignity and privacy ofindividuals can facilitate more sensitive andhumane care. Stigmatization and discrimina-tion thwart medical and public health efforts

to heal people with disease or disability.

(50)

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Q.12 What isthe value-added

of human rightsin public health?

Overall, human rights may benefit work in thearea of public health by providing:

Explicit recognition of the highest attainablestandard of health as a human right (asopposed to a good or commodity with a char-itable construct);

Atool to enhance health outcomes by using ahuman rights approach to designing, imple-menting and evaluating health policies andprogrammes;

An empowering strategy for health whichincludes vulnerable and marginalizedgroups engaged as meaningful and active

participants; Auseful framework, vocabulary and form ofguidance to identify, analyze and respond tothe underlying determinants of health;

A standard against which to assess the per-formance of governments in health;

Enhanced governmental accountability forhealth;

A powerful authoritative basis for advocacyand cooperation with governments; interna-tional organizations; international financial

institutions; and in the building of partner-ships with relevant actors of civil society;

Existing international mechanisms to monitorthe realization of health as a human right; (52)

Accepted international norms and standards(e.g. definitions of concepts and populationgroups);

Consistent guidance to states as humanrights cross-cut all United Nations activities;

Increased scope of analysis and range of part-ners in countries.

Q.13 What happensif the protection

of public healthnecessitatesthe restrictionof certain humanrights?

There are a number of human rights that can-not be restricted in any circumstance such asfreedom from torture and slavery, and freedomof thought, conscience and religion. Limitationand derogation clauses in the internationalhuman rights instruments recognize the needto limit human rights at certain times.

Public health is sometimes used by states as aground for limiting the exercise of humanrights.

A key factor in determining if the necessaryprotections exist when rights are restricted is

that each one of the five criterion of the SiracusaPrinciples must be met. Even in circumstanceswhere limitations on grounds of protectingpublic health are basically permitted, theyshould be of limited duration and subject toreview.

Interference with freedom of movement wheninstituting quarantine or isolation for a seriouscommunicable disease for example, Ebolafever, syphilis, typhoid or untreated tuber-culosis are examples of restrictions on rights(52) See Question 7.

The Siracusa Principles

Only as a last resort can human rights beinterfered with to achieve a public health

goal. Such interference can only be justifiedwhen all of the narrowly defined circumstan-ces set out in human rights law, known as theSiracusa Principles, are met:

The restriction is provided for and carriedout in accordance with the law;

The restriction is in the interest of a legiti-mate objective of general interest;

The restriction is strictly necessary in ademocratic society to achieve the objective;

There are no less intrusive and restrictive

means available to reach the same objective;and

The restriction is not drafted or imposedarbitrarily, i.e. in an unreasonable or other-wise discriminatory manner.

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that may, under certain circumstances, be nec-essary for the public good, and therefore couldbe considered legitimate under internationalhuman rights law. (53) By contrast, a state whichrestricts the movements of, or incarcerates, per-sons with HIV/AIDS, refuses to allow doctorsto treat persons believed to be opposed to agovernment or fails to provide immunizationagainst the communitys major infectiousdiseases, on grounds such as national security orthe preservation of public order, has the burdenof justifying such serious measures.(54)

Q.14 What implications

could human rightshave for evidence-based healthinformation?

The process that gives birth to an international-ly recognized human right is generated fromthe pressing reality on the ground. For exam-ple, the development of a declaration on the

rights of indigenous populations(55)

stems fromthe recognition that this is a vulnerable andmarginalized population group lacking fullenjoyment of a wide range of human rights,including rights to political participation,health and education. In other words, the estab-lishment of human rights norms and standardsis itself evidence of a serious problem and gov-ernmental recognition of the importance ofaddressing it. The existence of human rightsnorms and standards should therefore stimulate

the collection of evidence, indicating the dataneeded to tackle complex health challenges.For example, disaggregating data beyond tra-ditional markers could detect discriminationon the basis of ethnicity against indigenous and

tribal peoples which is considered an underly-ing determinant of their overall poor health sta-tus. However, the political sensitivities whichunderpin human rights in exposing how dif-ferent population groups are treated and why,hampers the extent to which human rights arewelcomed as a driving force for data collection.

More widely accepted is the notion that humanrights are relevant to the way in which healthdata should be collected. This includes the

choice of the methods of data collection whichmust include considerations on how to ensurerespect for human rights, such as privacy, par-ticipation and non-discrimination. Secondly,international instruments can be helpful indefining various population groups. For exam-ple, the ILO Convention Concerning Indige-nous and Tribal Peoples(56) provides an authori-tative basis for identifying and differentiatingindigenous and tribal peoples from otherpopulation groups.

(55 The open-ended inter-sessional Working Group

on the draft declarationwas established in 1995in accordance withCommission on HumanRights resolution 1995/32and Economic and SocialCouncil resolution1995/32. The WorkingGroup has the solepurpose of elaborating adraft declaration on therights of indigenouspeoples, considering thedraft contained in theannex to resolution1994/45 of 26 August 1994entitled draft UnitedNations declarationon the rights of indigenouspeoples. The draftis being preparedfor consideration andadoption by the GeneralAssembly during theInternational Decadeof the Worlds IndigenousPeople.(56) The InternationalLabour OrganisationConvention ConcerningIndigenous and TribalPeoples in IndependentCountries (Convention169) adopted bythe International LabourOrganisation on 27 June1989.(57) Gruskin Sand Tarantola D(refer to footnote 49).

(53) Gruskin S andTarantola D in Ed. Retels R,Mc Ewen J, Beaglehole R,Tanaka H, Oxford Textbookof Public Health, FourthEdition, Oxford,Oxford University Press,(in press).(54) General Comment 14,paragraphs 28-29.

Collecting personal information from indi-viduals about their health status (e.g. HIVinfection, cancer or genetic disorders), orbehaviour (e.g. sexual orientation or the useof alcohol or other potentially harmful sub-stances) has the potential for misuse by thestate, whether directly or because this infor-mation is intentionally or inadvertently madeavailable to others.(57)

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Information and statistics are a powerfultool for creating a culture of accountabili-

ty and for realizing human rights.

Human Development Report 2000(59)

Q.15 How canhuman rightssupport workto strengthenhealth systems?

Human rights provide a standard againstwhich to evaluate existing health policies andprogrammes, including highlighting the differ-

ential treatment of individual groups of peoplein, for example, manifestations, frequency andseverity of disease, and governmental respons-es to it. Human rights norms and standardsalso form a strong basis for health systems toprioritize the health needs of vulnerable andmarginalized population groups. Humanrights moves beyond averages and focusesattention on those population groups in socie-ty which are considered most vulnerable (e.g.

indigenous and tribal populations; refugeesand migrants, ethnic, religious, national andracial monitories), as well as putting forwardspecific human rights which may help guidehealth policy, programming, and health systemprocesses (e.g. the right of those potentiallyaffected by health policies, strategies and stan-dards to participate in the process in whichdecisions affecting their health are made).

(58) See Mokhiber, C. G.Toward a Measureof Dignity: Indicatorsfor Rights-BasedDevelopment.Session I-PL4, Montreux,4-8 September 2000.(59) United NationsDevelopment Programme,Human DevelopmentReport 2000, (New Yorkand Oxford: OxfordUniversity Press, 2000),p. 10.(60) The World HealthReport 2000 HealthSystems: ImprovingPerformance.

World Health Report 2000:

WHO Framework on Health Systems

Performance Assessment

In working towards an evidence-basedmodel of health, WHO developed healthsystem performance indicators in its WorldHealth Report 2000. The fundamental prin-ciples underlying these indicators are:to clarify the boundaries of health systems;to assess how health and other systems

interact to achieve key social goals; to defineand measure health, responsiveness, andfairness in financial contribution; and toshow how different policies contributetowards improving health systems perfor-mance. (60) In particular with regard to theresponsiveness of the health system,human rights norms and standards havebeen incorporated shaping the definitionsof the various domains being measured.

Indicators

United Nations agencies work on healthindicators, human rights indicators, and

human development indicators can assist inforging common agendas. Greater coordina-tion to ensure a common framework for thedesign, development, use and assessmentof indicators is needed. The UNDG workinggroup on Common Country Assessment(CCA) Indicators adopted the definition of anindicator as a variable or measurement,conveying information that may be qualitati-ve or quantitative, but which is consistentlymeasurable. Human rights were integratedin the CCA indicator framework which lead to

the goal of developing a list of simple deve-lopment indicators, designed to measurewhat is, on a right-by-right basis. Thiswould not include benchmarks, targets orgoals, or answer definitely what should beor by when, as these are appropriatelydeveloped in country-specific, participatorynational processes.(58)

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Q.16 What isthe relationshipbetween healthlegislation andhuman rights law?

Health legislation can be an important vehicletowards ensuring the promotion and protec-tion of the right to health. In the design andreview of health legislation, human rights pro-

vide a useful tool to determine its effectivenessand appropriateness in line with both humanrights and public health goals. In this context,HIV/AIDS has caused many countries to revis-it their public health laws, including in relationto quarantine and isolation. (61)

Restrictive laws and policies that deliberatelyfocus on certain population groups withoutsufficient data, epidemiological and otherwise,to support their approach may raise a host of

human rights concerns. Two examples in thisregard are health policies concerning the invol-untary sterilization of women from certainpopulation groups that are justified as neces-sary for their health and well-being, andsodomy statutes criminalizing same-sex sexualbehaviour that are justified as necessary to pre-vent the spread of HIV/AIDS. (62)

Government capacity to develop nationalhealth policy and legislation that conforms to

human rights obligations needs to be strength-ened. This includes developing the tools toreview health-related laws and policies todetermine whether, on their face or application,they violate human rights, and providing themeans to rectify any violation which exists.

Q.17 How do human rightsapply to situationalanalyses of health

in countries?Increased attention to human rights may, firstly,broaden the scope of situational health analysisin countries, and secondly, as a result, allownew partners to be identified. New areas ofattention include consideration of the healthcomponents of national human rights actionplans and, conversely, the inclusion of humanrights in national health strategies and actionplans. Given that human rights obligations rel-evant to health rest with the government as awhole, health and human rights goals need tofigure in policies and plans which may be gen-erated outside the health sector per se butwhich have a strong bearing on health, such asnational food and nutrition policies and plans.The focus on vulnerable population groupsdraws attention to how national legislation anddevelopment policies impact upon the status ofsuch groups, which institutions work to protect

their best interests, and how civil society move-ments represent them. Finally, the reports toand comments from the United Nationshuman rights treaty monitoring bodies and theviews of civil society organizations are anotherissue for consideration.

Practical implications may be to engage at thenational level with a greater range of Ministriesother than Health Ministries, e.g. Justice Min-istries and those with responsibility for human

rights (including independent human rightsinstitutions), womens affairs, childrens affairs,education, social affairs, finance, etc. UnitedNations agencies and other intergovernmentalorganizations working on human rights, inter-national and national human rights NGOs,national human rights institutions, ombudsper-sons, national human rights commissions,human rights think-tanks and research insti-tutes, also constitute fruitful partners foradvancing the global health agenda.

(61) Gostin L, Burris S,and Lazzarini Z,The Law andthe Publics Health:A study of InfectiousDisease Law in the UnitedStates, Columbia LawReview, Vol. 99, No.1,(1999).(62) Gruskin Sand Tarantola D,refer to footnote 48.

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Q.18 How do ethics relateto human rights?

Ethics are norms of conduct for individuals andfor societies. These norms derive from manysources, including religion, cultural tradition,

and reflection, which accounts in part for thecomplexity within each ethical outlook. Ethicsas a system of norms employs many compo-nent concepts, including obligations andduties, virtues of character, standards of valueand goodness in outcomes and consequencesof action, standards of fairness, and justice inallocation of resources and in reward and pun-ishment.

3

Human rights refer to an internationally agreedupon set of principles and norms embodied ininternational legal instruments. These interna-tional human rights principles and norms arethe result of deep and long-standing negotia-tions among Member States on a range of fun-damental issues. In other words, human rightsare generated by governments through a con-sensus-building process.

Work in ethics needs to take into accounthuman rights norms and standards, not only insubstance but also in relation to the processes ofethical discourse and reasoning. For example,where issues concern a specific population

group, individuals representing this groupshould be participants in any determination ofthe ethical implications of the issues affectingthem. Ethics is particularly useful in areas ofpractice where human rights do not provide adefinite answer, for example, in new andemerging areas where human rights law hasnot been applied or codified, such as humancloning.

Q.19 How do human rightsprinciples relateto equity?

Equity means that peoples needs, rather than

their social privileges, guide the distributionof opportunities for well-being. (63) This meanseliminating disparities in health and inhealths major determinants that are systema-tically associated with underlying socialdisadvantage within a society. Within thehuman rights discourse, the principle of equityis increasingly serving as an important non-legal generic policy term aimed at ensuringfairness. It has been used to embrace policy-related issues, such as the accessibility, affor-

dability and acceptability of available healthcare services. The focused attention on vul-nerable and disadvantaged groups in societyin international human rights instrumentsreinforces the principle of equity. Also, at theinternational level, human rights instrumentsaddress equity by encouraging internationalcooperation to realize rights as well asaddressing intrastate relations, most notablyin the United Nations Declaration on the Rightto Development. (64)

Section 3: Health & Human Rights

in a broader context

(63) Equity in Health andHealth Care: A WHO/SIDAInitiative, WHO, Geneva,1996.(64) Declaration onthe Right to Development,4 December 1986,(A/RES/41/128).

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Q.20 How do healthand human rights

principles applyto povertyreduction?

The right to a standard of living adequate forhealth and well-being, including necessarysocial services, and the right to security in theevent of sickness, disability, old age or otherlack of livelihood is enshrined in the UniversalDeclaration of Human Rights.(65) The Committee

on Economic, Social and Cultural Rights hasdefined poverty as a human condition charac-terized by sustained or chronic deprivation ofthe resources, capabilities, choices, securityand power necessary for the enjoyment of anadequate standard of living and other civil,cultural, economic, political and social rights. (66)

Human rights empower individuals and com-munities by granting them entitlements thatgive rise to legal obligations on others. Humanrights can help to equalize the distribution andexercise of power both within and between

societies, mitigating the powerlessness of thepoor. As economic and social rights, such as theright to health, are increasingly gaining weightthrough increased normative clarity and appli-cation, they will provide an important tool forpoverty reduction. A human rights approachalso requires the active and informed partici-pation of the poor in the formulation, imple-mentation and monitoring of strategies whichmay affect them.

Accountability, transparency, democracy andgood governance, are essential ingredients toaddressing poverty and ill-health. Legal rightsand obligations, at the domestic and interna-tional level, demand accountability: effectivelegal remedies, administrative and political

accountability mechanisms at the domesticlevel, as well as human rights monitoring at theinternational level. (68) Overall, human rightsprovide a holistic framework to poverty reduc-tion, demanding consideration of a spectrum ofapproaches, including legislation, polices andprogrammes.

(65) Article 25 UDHR(1948).(66) Poverty and theInternational Covenanton Economic, Socialand Cultural Rights,statement adopted bythe Committee onEconomic, Social andCultural Rights on 4 May,2001 (E/C.12/2001/10),paragraph 8.(67) Voices of the Poor:Crying Out for Change,Chapter 7, Social Ill-being:Left Out and PushedDown, World Bank 2000,page 235.(68) Human rights andpoverty reductionstrategies: A discussionpaper,prepared byProfessor Paul Hunt,Professor Manfred Nowak,Professor Siddiq Osmani

for the UN Office of the HighCommissioner for HumanRights (February 2002).(69) Disability, Poverty andDevelopment, Departmentfor InternationalDevelopment (DFID), ID21Highlights, January 2002.

The challenge for development profes-sionals, and for policy and practice, is to findways to weaken the web of powerlessnessand to enhance the capabilities of poorwomen and men so that they can take morecontrol of their lives. (67)

Disability can become a cause of povertyand poverty can also be a risk factor for dis-ability. Human rights provide a legal frame-work to ensure non-discrimination andequal opportunity for persons with disabili-ties, and thus provides a potential avenue togo upstream to prevent persons with dis-abilities from becoming poor.

A report from Action on Disability andDevelopment looks at the vicious circle lin-king poverty and disability. It argues that thebasic cause of disabled peoples poverty issocial, economic, and political exclusion.

The scale of exclusion is dramatic:

98 per cent of disabled children in deve-loping countries are denied any formaleducation and excluded from many ofthe day-to-day interactions that non-disabled children take for granted.

One hundred million people world widehave preventable impairments causedby malnutrition and poor sanitation

70 per cent of childhood blindness

and 50 per cent of hearing impairmentin Africa and Asia are preventable ortreatable.

These impairments then lead to discrimi-nation, exclusion and further poverty. TheStandard Rules on the Equalisation ofOpportunities for People with Disabilitieshave been endorsed by all United NationsMember States. Although not legally enfor-ceable, they have encouraged many govern-ments to introduce disability legislation. (69)

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Q.21 How doesglobalization affect

the promotionand protectionof human rights?

The Secretary-General of the United Nations,

Kofi Annan, has underscored that the pursuitof development, the engagement with glo-balization, and the management of changemust all yield to human rights imperatives

rather than the reverse. Respect for humanrights, as proclaimed in the internationalinstruments, is central to our mandate. If welose sight of this fundamental truth, all elsewill fail.(72)

Globalization is a term used to cover many dif-ferent phenomena, most of which concernincreasing flows of money, goods, services,people, and ideas across national borders. Thisprocess has brought benefits to many peoplesand countries, lifting many people from pover-ty and bringing greater awareness of peoplesentitlement to basic human rights. In manycases, however, the globalization process hascontributed to greater marginalization of peo-ple and countries that have been denied accessto markets, information, and essential goodssuch as new life-saving drugs.

Within the human rights community, certaintrends associated with globalization have raisedconcern with respect to their effect on statescapacity to ensure the protection of humanrights, especially for the most vulnerable mem-bers of society. Located primarily in the eco-nomic-political realm of globalization, thesetrends include: an increasing reliance upon thefree market; a significant growth in the influenceof international financial markets and institu-tions in determining national policies; cutbacks

in public sector spending; the privatization offunctions previously considered to be the exclu-sive domain of the state; and the deregulation ofa range of activities with a view to facilitatinginvestment and rewarding entrepreneurialinitiative.(70) These trends serve to reduce the roleof the state in economic affairs, and at the sametime increase the role and responsibilities ofprivate (non-state) actors, especially those incorporate business, but also those in civil society.Human rights analysts are concerned that such

trends limit the ability of the state to protect thevulnerable from adverse effects of globalization,and enforce human rights.

In this context, the United Nations Committeeon Economic, Social and Cultural Rights hasemphasized the strong and continuous respon-sibility of international organizations, as well as

the governments that have created and managethem, to take whatever measures they can in thecontext of globalization to assist governments toact in ways which are compatible with theirhuman rights obligations, and to seek to devisepolicies and programmes which promoterespect for those rights. (71)

Although we refer to our world as a globalvillage it is a world sadly lacking in the

sense of closeness towards neighbour andcommunity which the word villageimplies. In each region, and within allcountries, there are problems stemmingfrom either a lack of respect for, or lack ofacceptance of, the inherent dignity andequality of all human beings.

United Nations High Commissioner for

Human Rights, Mary Robinson

(70) Statement by theCommittee on Economic,Social and Cultural Rights,to the Third MinisterialConference of the WorldTrade Organization, 1999.(71) Statement by theCommittee on Economic,Social and Cultural Rights,May 1998, paragraph 5.(72) Report ofthe Secretary-Generalon the work of theOrganization, 1999,General Assembly, OfficialRecords, 54th session.Supplement No.1 (A/54/1).

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Q.22 How doesinternational

human rightslaw influenceinternationaltrade law?

Recently, the United Nations human rightssystem has begun addressing trade laws andpractices in relation to human rights law and,

in turn, the World Trade Organization (WTO)and other organizations dealing with tradehave begun to consider the human rightsimplications of their work.

For example, the question of access to drugshas been increasingly addressed in the contextof human rights. In an unprecedented move,the Commission on Human Rights last yearadopted a resolution on access to medication inthe context of pandemics such as HIV/AIDS(73)

which reaffirms that access to medication inthis context is a fundamental element for theprogressive realization of the right to health.States are called upon to pursue policies whichwould promote the availability, accessibilityand affordability for all without discriminationof scientifically appropriate and good qualitypharmaceuticals and medical technologiesused to treat pandemics such as HIV/AIDS.They are also asked to adopt legislation orother measures to safeguard access to such

pharmaceuticals and medical technologiesfrom any limitations by third parties.

Also in relation to the question of access todrugs, the relationship between the Agreementon the Trade Related Aspects of IntellectualProperty Rights (TRIPS) and human rights wasconsidered in a report to the Subcommission onHuman Rights, last year, by the High Commis-sioner for Human Rights. (74) This report notesthat of the 141 Members of the WTO, 111 haveratified the ICESCR. Members should thereforeimplement the minimum standards of theTRIPS Agreement bearing in mind both theirhuman rights obligations as well as the flexi-bility inherent in the TRIPS Agreement, andrecognizing that human rights are the firstresponsibility of Governments.(75)

(73) Commission onHuman Rights resolution2001/33: Access tomedication in the contextof pandemics such asHIV/AIDS, adopted20 April 2001,(E/CN.4.RES.2001.33).(74)

Report of the HighCommissioner for HumanRights bothSub-Commission onthe Promotion andProtection of HumanRights on intellectualproperty rights andhuman rights; the impactof the agreement on traderelated aspectsof Intellectual PropertyRights on human rights ;Fifty-second sessionof June 2001(E/CN.4/Sub.2/2001/13paras. 61-69.)(75) Vienna Declarationand Programme of Action,Article 1.

Article 15 of the International Covenanton Economic, Social and Cultural Rightsrecognizes the right of everyone to enjoythe benefits of scientific progress and itsapplications. This right places obligationson governments to take the steps necessaryto conserve, develop and diffuse scienceand scientific research, as well as ensurefreedom of scientific enquiry. The implica-tions of this right for health issues have only

recently begun to be explored, for example,with respect to access to drugs for develo-ping countries.

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Q.23 What is meantby a rights-based

approachto development?

There is increasing recognition, within theUnited Nations system and beyond, that devel-opment itself is not only a human right as rec-ognized in the United Nations Declaration onthe Right to Development (1986), but that thedevelopment process must, in itself, be consis-tent with human rights. In this regard, OHCHR

has advocated a rights-based approach todevelopment as a conceptual framework forthe process of human development that is nor-matively based on international human rights.This approach integrates the norms, standardsand principles of the international humanrights system into the plans, policies andprocesses of development. The norms and stan-dards are those contained in the wealth of inter-national treaties and declarations. The principlesinclude those of participation, accountability,

non-discrimination and attention to vulnerabi-lity, empowerment and express linkage tointernational human rights instruments.

A rights-based approach to developmentsets the achievement of human rights as an

objective of development. It uses thinkingabout human rights as a scaffolding ofdevelopment policy. It invokes the interna-tional apparatus of human rights account-ability in support of development action.In all of these, it is concerned with not justcivil and political rights but also with eco-nomic, social and cultural rights. Further,the implementation of a rights-basedapproach implies that performance stan-dards be set.(76)

A rights-based approach to developmentdescribes situations not simply in termsof human needs, or of developmentalrequirements, but in terms of societysobligations to respond to the inalienablerights of individuals, empowers people todemand justice as a right, not as charity,

and gives communities a moral basis fromwhich to claim international assistancewhen needed.

United Nations Secretary-General,

Kofi Annan

(76)Overseas DevelopmentInstitute, What canwe do with a rights-basedapproach to development?.Briefing Paper,1999 (3) September.

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Q.24 How do human rightslaw, refugee law

and humanitarianlaw interact withthe provisionof health assistance?

The large number and changing nature ofemergencies and conflicts, including theexplosion of religious and ethnic turmoil

around the world, has prompted the need fornew thinking and approaches within the UnitedNations system and beyond. Fresh attention isbeing drawn to the international legal frame-work for dealing with these emergencies, inparticular the relationship between humani-tarian law, human rights law and refugee lawand their applicability in a changing crisisenvironment. (77)

Human rights, humanitarian law and refugeelaw are distinct yet closely related branches of

the international legal system. Human rightsand refugee law were developed within theUnited Nations framework and thus havesimilar underpinnings. Humanitarian law,however, has profoundly different origins anduses different mechanisms for its implementa-tion. All branches of law have, however, afundamental common objective: the respect forhuman dignity without any discriminationwhatsoever as to race, colour, religion, sex,birth or wealth, or any similar criteria. In

addition, they share a great number of detailedobjectives and conceptual similarities.

Efforts are under way to ensure that interna-tional human rights and humanitarian lawprinciples provide the standard and referencefor humanitarian action by the United Nationsand its agencies as well as other actors. Health

practices in preparing for, assessing, imple-menting, and evaluating the impact of healthassistance in the context of an armed conflictneed to be grounded within a framework ofinternational law. The sick and wounded,health workers, medical equipment, hospitalsand various medical units (including medicaltransportation) are all protected under humani-tarian law principles. Moreover, denying accessto medical care in some circumstances couldconstitute a war crime.

(77) See paper by UweKracht, DevelopmentConsultant andCo-Coordinator of theWorld Alliance for Nutritionand Human Rights(WANAHR) Human Rightsand Humanitarian Law andPrinciples in Emergencies- An overview of conceptsand issues, prepared forUNICEF.

Refugee law acts to protect refugeesby spelling out specific legal provisionsprotecting the human rights of refugeesmost notably through the United NationsConvention Relating to the Status of Refugees(1950) and its protocol (1966).

Humanitarian law is the law of armedconflict or the law of wars: a body of ruleswhich in wartime protect persons who arenot or no longer participating in the hos-tilities and which limit methods and

means of warfare. The central instru-ments of humanitarian law are the four1949 Geneva Conventions and their twoAdditional Protocols of 1977.

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Overall, humanitarian action in the field ofhealth represents action towards the fulfilmentof the right to health in situations where thethreats to health are greatest. Moreover, in theprovision of health care in emergency situa-tions, consideration of the human rightsdimension can help ensure that strategies payparticular attention to vulnerable groups. The

particular vulnerability of refugees, internallydisplaced, and migrants requires a specialemphasis on human rights. Within thesegroups, women as single heads of households,unaccompanied minors, persons with disabil-ities, and the elderly are in need of specialattention. Specific human rights principlesexist that provide guidance in ensuring pro-tection in emergencies against exposure ofvulnerable groups to risk-factors of diseaseand ill-health. (78)

Q.25 How does humanrights relate to

health developmentwork in countries?

Human rights are upheld as a cross-cutting issuein the United Nations development work atcountry level. (80) The Common Country Assess-ment (CCA) and the United Nations Develop-ment Assistance Framework (UNDAF) providethe major principles upon which a human rights-based approach to development is founded. The

CCAand UNDAF Guidelines refer to the imple-mentation of United Nations Conventions andDeclarations and underscore the importance oftaking full account of human rights in both theseprocesses. The CCAthus helps to facilitate effortsfor coherent, integrated and coordinated UnitedNations support to government follow-up to theConferences and the implementation of Conven-tions at the field level.

This parallels the principles enunciated in theWorld Banks Comprehensive DevelopmentFramework (CDF), the joint World Bank/IMFPoverty Reduction Strategy Paper (PRSP) initia-tive, the formal design of which reflects humanrights concepts and standards. A project of theOHCHR to produce guidelines for the integra-tion of human rights in poverty reduction strate-gies, including Poverty Reduction StrategyPapers (HRPRS Guidelines), has highlighted theclose correspondence between the realities of

poor people, as identified by Voices of thePoor (81) and other poverty studies, and the inter-national human rights normative framework.Thus, attention to human rights will help toensure that the key concerns of poor peoplebecome, and remain, the key concerns of pover-ty reduction strategies. For example, the integra-tion of human rights into anti-poverty strategieswill help to ensure that vulnerable individualsand groups are not neglected; that the active andinformed participation of the poor is provided

for; that key sectoral issues (e.g. education, hous-ing, health and food) receive due attention; thatimmediate and intermediate (as well as long-term) targets are identified; that effective moni-toring methods (e.g. indicators and benchmarks)are established; and that accessible mechanismsof accountability, in relation to all parties, areinstituted. Furthermore, human rights providepoverty reduction strategies with norms, stan-dards and values that have a high-level of globallegitimacy. (82)

(78) Guiding Principleson Internal Displacement(1998).(79) In March 2000,the ACC issued the HumanRights Guidelines andInformation for theResident Coordinator

System which is animportant reference forthe collective effort tointegrate human rightswithin the United Nationssystem, approved onbehalf of ACC by theCCPOQ at its 16th Session,Geneva, March 2000,http://accsubs.unsystem.org/ccpoq/documents/manual/human-rights-gui.pdf, para. 59.(80) Idem.(81) Refer to footnote 68.(82) Human rights andpoverty reduction strategies:A discussion paper,footnote 57.

According to United Nations Guidelines,United Nations staff in the field, shouldgenera