girls,
including early marriage, female genital mutilation, preferential feeding and care
of male children.
18
Children with disabilities should be given the opportunity to enjoy
a fulfilling and decent life and to participate within their community.
23.
States parties should provide a safe and supportive environment for
adolescents, that ensures the opportunity to participate in decisions affecting their
health, to build life skills, to acquire appropriate information, to receive counselling
and to negotiate the health-behaviour choices they make. The realization of the right
to health of adolescents is dependent on the development of youth-friendly health
care, which respects confidentiality and privacy and includes appropriate sexual and
reproductive health services.
24.
In all policies and programmes aimed at guaranteeing the right to health of
children and adolescents their best interests shall be a primary consideration.
Older persons
25.
With regard to the realization of the right to health of older persons, the
Committee, in accordance with paragraphs 34 and 35 of general comment No. 6
(1995), reaffirms the importance of an integrated approach, combining elements of
preventive, curative and rehabilitative health treatment. Such measures should be
based on periodical check-ups for both sexes; physical as well as psychological
rehabilitative measures aimed at maintaining the functionality and autonomy of older
persons; and attention and care for chronically and terminally ill persons, sparing
them avoidable pain and enabling them to die with dignity.
Persons with disabilities
26.
The Committee reaffirms paragraph 34 of its general comment No. 5, which
addresses the issue of persons with disabilities in the context of the right to physical
and mental health. Moreover, the Committee stresses the need to ensure that not only
the public health sector but also private providers of health services and facilities
comply with the principle of non-discrimination in relation to persons with
disabilities.
Indigenous peoples
27.
In the light of emerging international law and practice
and the recent measures
taken by States in relation to indigenous peoples,
19
the Committee deems it useful to
18
See World Health Assembly resolution WHA47.10, 1994, entitled “Maternal and child health and
family planning: traditional practices harmful to the health of women and children”.
19
Recent emerging international norms relevant to indigenous peoples include the ILO Convention
No. 169 concerning Indigenous and Tribal Peoples in Independent Countries (1989); articles 29 (c)
and (d) and 30 of the Convention on the Rights of the Child (1989); article 8 (j) of the Convention on
Biological Diversity (1992), recommending that States respect, preserve and maintain knowledge,
innovation and practices of indigenous communities; Agenda 21 of the United Nations Conference on
Environment and Development (1992), in particular chapter 26; and Part I, paragraph 20, of the
Vienna Declaration and Programme of Action (1993), stating that States should take concerted positive
identify elements that would help to define indigenous peoples’ right to health in
order better to enable States with indigenous peoples to implement the provisions
contained in article 12 of the Covenant. The Committee considers that indigenous
peoples have the right to specific measures to improve their access to health services
and care. These health services should be culturally appropriate, taking into account
traditional preventive care, healing practices and medicines. States should provide
resources for indigenous peoples to design, deliver and control such services so that
they may enjoy the highest attainable standard of physical and mental health. The
vital medicinal plants, animals and minerals necessary to the full enjoyment of health
of indigenous peoples should also be protected. The Committee notes that, in
indigenous communities, the health of the individual is often linked to the health of
the society as a whole and has a collective dimension. In this respect, the Committee
considers that development-related activities that lead to the displacement of
indigenous peoples against their will from their traditional territories and
environment, denying them their sources of nutrition and breaking their symbiotic
relationship with their lands, has a deleterious effect on their health.
Limitations
28.
Issues of public health are sometimes used by States as grounds for limiting
the exercise of other fundamental rights. The Committee wishes to emphasize that the
Covenant’s limitation clause, article 4, is primarily intended to protect the rights of
individuals rather than to permit the imposition of limitations by States. Consequently
a State party which, for example, restricts the movement of, or incarcerates, persons
with transmissible diseases such as HIV/AIDS, refuses to allow doctors to treat
persons believed to be opposed to a Government, or fails to provide immunization
against the community’s major infectious diseases, on grounds such as national
security or the preservation of public order, has the burden of justifying such serious
measures in relation to each of the elements identified in article 4. Such restrictions
must be in accordance with the law, including international human rights standards,
compatible with the nature of the rights protected by the Covenant, in the interest of
legitimate aims pursued, and strictly necessary for the promotion of the general
welfare in a democratic society.
29.
In line with article 5.1, such limitations must be proportional, i.e. the least
restrictive alternative must be adopted where several types of limitations are available.
Even where such limitations on grounds of protecting public health are basically
permitted, they should be of limited duration and subject to review.
steps to ensure respect for all human rights of indigenous people, on the basis of non-discrimination.
See also the preamble and article 3 of the United Nations Framework Convention on Climate Change
(1992); and article 10 (2) (e) of the United Nations Convention to Combat Desertification in Countries
Experiencing Serious Drought and/or Desertification, Particularly in Africa (1994). During recent
years an increasing number of States have changed their constitutions and introduced legislation
recognizing specific rights of indigenous peoples.