47.
In determining which actions or omissions amount to a violation of the right to
health, it is important to distinguish the inability from the unwillingness of a State
party to comply with its obligations under article 12. This follows from article 12.1,
which speaks of the highest attainable standard of health, as well as from article 2.1 of
the Covenant, which obliges each State party to take the necessary steps to the
maximum of its available resources. A State which is unwilling to use the maximum
of its available resources for the realization of the right to health is in violation of its
obligations under article 12. If resource constraints render it impossible for a State to
comply fully with its Covenant obligations, it has the burden of justifying that every
effort has nevertheless been made to use all available resources at its disposal in order
to satisfy, as a matter of priority, the obligations outlined above. It should be stressed,
however, that a State party cannot, under any circumstances whatsoever, justify its
non-compliance with the core obligations set out in paragraph 43 above, which are
non-derogable.
48.
Violations of the right to health can occur through the direct action of States or
other entities insufficiently regulated by States. The adoption of any retrogressive
measures incompatible with the core obligations under the right to health, outlined in
paragraph 43 above, constitutes a violation of the right to health. Violations through
acts of commission include the formal repeal or suspension of legislation necessary
for the continued enjoyment of the right to health or the adoption of legislation or
policies which are manifestly incompatible with pre-existing domestic or international
legal obligations in relation to the right to health.
49.
Violations of the right to health can also occur through the omission or failure
of States to take necessary measures arising from legal obligations. Violations
through acts of omission include the failure to take appropriate steps towards the full
realization of everyone’s right to the enjoyment of the highest attainable standard of
physical and mental health, the failure to have a national policy on occupational safety
and health as well as occupational health services, and the failure to enforce relevant
laws.
Violations of the obligation to respect
50.
Violations of the obligation to respect are those State actions, policies or laws
that contravene the standards set out in article 12 of the Covenant and are likely to
result in bodily harm, unnecessary morbidity and preventable mortality. Examples
include the denial of access to health facilities, goods and services to particular
individuals or groups as a result of de jure or de facto discrimination; the deliberate
withholding or misrepresentation of information vital to health protection or
treatment; the suspension of legislation or the adoption of laws or policies that
interfere with the enjoyment of any of the components of the right to health; and the
failure of the State to take into account its legal obligations regarding the right to
health when entering into bilateral or multilateral agreements with other States,
international organizations and other entities, such as multinational corporations.
Violations of the obligation to protect
51.
Violations of the obligation to protect follow from the failure of a State to take
all necessary measures to safeguard persons within their jurisdiction from
infringements of the right to health by third parties. This category includes such
omissions as the failure to regulate the activities of individuals, groups or corporations
so as to prevent them from violating the right to health of others; the failure to protect
consumers and workers from practices detrimental to health, e.g. by employers and
manufacturers of medicines or food; the failure to discourage production, marketing
and consumption of tobacco, narcotics and other harmful substances; the failure to
protect women against violence or to prosecute perpetrators; the failure to discourage
the continued observance of harmful traditional medical or cultural practices; and the
failure to enact or enforce laws to prevent the pollution of water, air and soil by
extractive and manufacturing industries.
Violations of the obligation to fulfil
52.
Violations of the obligation to fulfil occur through the failure of States parties
to take all necessary steps to ensure the realization of the right to health. Examples
include the failure to adopt or implement a national health policy designed to ensure
the right to health for everyone; insufficient expenditure or misallocation of public
resources which results in the non-enjoyment of the right to health by individuals or
groups, particularly the vulnerable or marginalized; the failure to monitor the
realization of the right to health at the national level, for example by identifying right
to health indicators and benchmarks; the failure to take measures to reduce
the inequitable distribution of health facilities, goods and services; the failure to adopt
a gender-sensitive approach to health; and the failure to reduce infant and maternal
mortality rates.
4. Implementation at the national level
Framework legislation
53.
The most appropriate feasible measures to implement the right to health will
vary significantly from one State to another. Every State has a margin of discretion in
assessing which measures are most suitable to meet its specific circumstances. The
Covenant, however, clearly imposes a duty on each State to take whatever steps are
necessary to ensure that everyone has access to health facilities, goods and services so
that they can enjoy, as soon as possible, the highest attainable standard of physical
and mental health. This requires the adoption of a national strategy to ensure to all the
enjoyment of the right to health, based on human rights principles which define the
objectives of that strategy, and the formulation of policies and corresponding right to
health indicators and benchmarks. The national health strategy should also identify
the resources available to attain defined objectives, as well as the most cost-effective
way of using those resources.
54.
The formulation and implementation of national health strategies and plans of
action should respect, inter alia, the principles of non-discrimination and people’s
participation. In particular, the right of individuals and groups to participate in
decision-making processes, which may affect their development, must be an integral
component of any policy, programme or strategy developed to discharge
governmental obligations under article 12. Promoting health must involve effective
community action in setting priorities, making decisions, planning, implementing and
evaluating strategies to achieve better health. Effective provision of health services
can only be assured if people’s participation is secured by States.
55.
The national health strategy and plan of action should also be based on the
principles of accountability, transparency and independence of the judiciary, since
good governance is essential to the effective implementation of all human rights,
including the realization of the right to health. In order to create a favourable climate
for the realization of the right, States parties should take appropriate steps to ensure
that the private business sector and civil society are aware of, and consider the
importance of, the right to health in pursuing their activities.
56.
States should consider adopting a framework law to operationalize their right
to health national strategy. The framework law should establish national mechanisms
for monitoring the implementation of national health strategies and plans of action. It
should include provisions on the targets to be achieved and the time frame for their
achievement; the means by which right to health benchmarks could be achieved; the
intended collaboration with civil society, including health experts, the private sector
and international organizations; institutional responsibility for the implementation of
the right to health national strategy and plan of action; and possible recourse
procedures. In monitoring progress towards the realization of the right to health,
States parties should identify the factors and difficulties affecting implementation of
their obligations.
Right to health indicators and benchmarks
57.
National health strategies should identify appropriate right to health indicators
and benchmarks. The indicators should be designed to monitor, at the national and
international levels, the State party’s obligations under article 12. States may obtain
guidance on appropriate right to health indicators, which should address different
aspects of the right to health, from the ongoing work of WHO and the United Nations
Children’s Fund (UNICEF) in this field. Right to health indicators require
disaggregation on the prohibited grounds of discrimination.
58.
Having identified appropriate right to health indicators, States parties are
invited to set appropriate national benchmarks in relation to each indicator. During
the periodic reporting procedure the Committee will engage in a process of scoping
with the State party. Scoping involves the joint consideration by the State party and
the Committee of the indicators and national benchmarks which will then provide the
targets to be achieved during the next reporting period. In the following five years,
the State party will use these national benchmarks to help monitor its implementation
of article 12. Thereafter, in the subsequent reporting process, the State party and the
Committee will consider whether or not the benchmarks have been achieved, and the
reasons for any difficulties that may have been encountered.
Remedies and accountability
59.
Any person or group victim of a violation of the right to health should have
access to effective judicial or other appropriate remedies at both national and
international levels.
30
All victims of such violations should be entitled to adequate
reparation, which may take the form of restitution, compensation, satisfaction or
guarantees of non-repetition. National ombudsmen, human rights commissions,
consumer forums, patients’ rights associations or similar institutions should address
violations of the right to health.
60.
The incorporation in the domestic legal order of international instruments
recognizing the right to health can significantly enhance the scope and effectiveness
of remedial measures and should be encouraged in all cases.
31
Incorporation enables
courts to adjudicate violations of the right to health, or at least its core obligations, by
direct reference to the Covenant.
61.
Judges and members of the legal profession should be encouraged by States
parties to pay greater attention to violations of the right to health in the exercise of
their functions.
62.
States parties should respect, protect, facilitate and promote the work of
human rights advocates and other members of civil society with a view to assisting
vulnerable or marginalized groups in the realization of their right to health.
5. Obligations of actors other than States parties
63.
The role of the United Nations agencies and programmes, and in particular the
key function assigned to WHO in realizing the right to health at the international,
regional and country levels, is of particular importance, as is the function of UNICEF
in relation to the right to health of children. When formulating and implementing
their right to health national strategies, States parties should avail themselves of
technical assistance and cooperation of WHO. Further, when preparing their reports,
States parties should utilize the extensive information and advisory services of WHO
with regard to data collection, disaggregation, and the development of right to health
indicators and benchmarks.
64.
Moreover, coordinated efforts for the realization of the right to health should
be maintained to enhance the interaction among all the actors concerned, including the
various components of civil society. In conformity with articles 22 and 23 of the
Covenant, WHO, the
International Labour Organization, the United
Nations
Development Programme, UNICEF, the United Nations Population Fund, the World
30
Regardless of whether groups as such can seek remedies as distinct holders of rights, States parties
are bound by both the collective and individual dimensions of article 12. Collective rights are critical
in the field of health; modern public health policy relies heavily on prevention and promotion which
are approaches directed primarily to groups.
31
See general comment No. 2, paragraph 9.
Bank, regional development banks, the International Monetary Fund, the World Trade
Organization and other relevant bodies within the United Nations system, should
cooperate effectively with States parties, building on their respective expertise, in
relation to the implementation of the right to health at the national level, with due
respect to their individual mandates. In particular, the international financial
institutions, notably the World Bank and the International Monetary Fund, should pay
greater attention to the protection of the right to health in their lending policies, credit
agreements and structural adjustment programmes. When examining the reports of
States parties and their ability to meet the obligations under article 12, the Committee
will consider the effects of the assistance provided by all other actors. The adoption
of a human rights-based approach by United
Nations specialized agencies,
programmes and bodies will greatly facilitate implementation of the right to health.
In the course of its examination of States parties’ reports, the Committee will also
consider the role of health professional associations and other non-governmental
organizations in relation to the States’ obligations under article 12.
65.
The role of WHO, the Office of the United Nations High Commissioner for
Refugees, the International Committee of the Red Cross/Red Crescent and UNICEF,
as well as non-governmental organizations and national medical associations, is of
particular importance in relation to disaster relief and humanitarian assistance in times
of emergencies, including assistance to refugees and internally displaced persons.
Priority in the provision of international medical aid, distribution and management of
resources, such as safe and potable water, food and medical supplies, and financial aid
should be given to the most vulnerable or marginalized groups of the population.
Adopted on 11 May 2000.
Document Outline - CESCR General Comment No. 14: The Right to the Highest Attainable Standard of Health (Art. 12)
- 1. Normative content of article 12
- Article 12.2 (a): The right to maternal, child and reproductive health
- Article 12.2 (b): The right to healthy natural and workplace environments
- Article 12.2 (c): The right to prevention, treatment and control of diseases
- Article 12.2 (d): The right to health facilities, goods and services
- Article 12: Special topics of broad application
- Non discrimination and equal treatment
- Gender perspective
- Women and the right to health
- Children and adolescents
- Older persons
- Persons with disabilities
- Indigenous peoples
- Limitations
- 2. States parties’ obligations
- General legal obligations
- Specific legal obligations
- International obligations
- Core obligations
- 3. Violations
- Violations of the obligation to respect
- Violations of the obligation to protect
- Violations of the obligation to fulfil
- 4. Implementation at the national level
- Framework legislation
- Right to health indicators and benchmarks
- Remedies and accountability
- 5. Obligations of actors other than States parties
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