2. States parties’ obligations
General legal obligations
30.
While the Covenant provides for progressive realization and acknowledges the
constraints due to the limits of available resources, it also imposes on States parties
various obligations which are of immediate effect. States parties have immediate
obligations in relation to the right to health, such as the guarantee that the right will be
exercised without discrimination of any kind (art. 2.2) and the obligation to take steps
(art. 2.1) towards the full realization of article 12. Such steps must be deliberate,
concrete and targeted towards the full realization of the right to health.
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31.
The progressive realization of the right to health over a period of time should
not be interpreted as depriving States parties’ obligations of all meaningful content.
Rather, progressive realization means that States parties have a specific and
continuing obligation to move as expeditiously and effectively as possible towards the
full realization of article 12.
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32.
As with all
other rights in the Covenant, there is a strong presumption that
retrogressive measures taken in relation to the right to health are not permissible. If
any deliberately retrogressive measures are taken, the State party has the burden of
proving that they have been introduced after the most careful consideration of all
alternatives and that they are duly justified by reference to the totality of the rights
provided for in the Covenant in the context of the full use of the State party’s
maximum available resources.
22
33.
The right to health, like all human rights, imposes three types or levels of
obligations on States parties: the obligations to respect, protect and fulfil. In turn, the
obligation to fulfil contains obligations to facilitate, provide and promote.
23
The
obligation to
respect requires States to refrain from interfering
directly or indirectly
with the enjoyment of the right to health. The obligation to protect requires States to
take measures that prevent third parties from interfering with article 12 guarantees.
Finally, the obligation to fulfil requires States to adopt appropriate legislative,
administrative, budgetary, judicial, promotional and other measures towards the full
realization of the right to health.
20
See general comment No. 13, paragraph 43.
21
See general comment No. 3, paragraph 9; general comment No. 13, paragraph 44.
22
See general comment No. 3, paragraph 9; general comment No. 13, paragraph 45.
23
According to general comments Nos. 12 and 13, the obligation to fulfil incorporates an obligation to
facilitate and an obligation to
provide. In the present general comment, the obligation to fulfil also
incorporates an obligation to promote because of the critical importance of health promotion in the
work of WHO and elsewhere.
Specific legal obligations
34.
In particular, States are under the obligation to
respect the right to health by,
inter alia, refraining from denying or limiting equal access for all persons, including
prisoners or detainees, minorities, asylum-seekers and illegal immigrants, to
preventive, curative and palliative health services; abstaining from enforcing
discriminatory practices as a State policy; and abstaining from imposing
discriminatory practices relating to women’s health status and needs. Furthermore,
obligations to respect include a State’s obligation to refrain from prohibiting or
impeding traditional preventive care, healing practices and medicines, from marketing
unsafe drugs and from applying coercive medical treatments, unless on an exceptional
basis for the treatment of mental illness or the prevention and control of
communicable diseases. Such exceptional cases should be subject to specific and
restrictive conditions, respecting best practices and applicable international standards,
including the Principles for the Protection of Persons with Mental Illness and the
Improvement of Mental Health Care.
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In addition, States should refrain from
limiting access to contraceptives and other means of maintaining sexual and
reproductive health, from censoring, withholding or intentionally misrepresenting
health-related information, including sexual education and information, as well as
from preventing people’s participation in health-related matters. States should also
refrain from unlawfully polluting air, water and soil, e.g. through industrial waste
from State-owned facilities, from using or testing nuclear, biological or chemical
weapons if such testing results in the release of substances harmful to human health,
and from limiting access to health services as a punitive measure, e.g. during armed
conflicts in violation of international humanitarian law.
35. Obligations
to
protect include, inter alia, the duties of States to adopt
legislation or to take other measures ensuring equal access to health care and
health-related services provided by third parties; to ensure that privatization of the
health sector does not constitute a threat to the availability, accessibility, acceptability
and quality of health facilities, goods and services; to control the marketing of
medical equipment and medicines by third parties; and to ensure that medical
practitioners and other health professionals meet appropriate standards of education,
skill and ethical codes of conduct. States are also obliged to ensure that harmful
social or traditional practices do not interfere with access to pre- and post-natal care
and family planning; to prevent third parties from coercing women to undergo
traditional practices, e.g. female genital mutilation; and to take measures to protect all
vulnerable or marginalized groups of society, in particular women, children,
adolescents and older persons, in the light of gender-based expressions of violence.
States should also ensure that third parties do not limit people’s access to
health-related information and services.
36.
The obligation to
fulfil requires States parties, inter alia, to give sufficient
recognition to the right to health in the national political and legal systems, preferably
by way of legislative implementation, and to adopt a national health policy with a
24
General Assembly resolution 46/119 (1991).