CESCR
General Comment No. 14
The right to the highest attainable standard of health (art. 12)
Twenty-second session 2000
E/C.12/2000/4
1. Health is
a fundamental human right indispensable for the exercise of other
human rights. Every human being is entitled to the enjoyment of
the highest attainable standard of health conducive to living a
life in dignity. The realization of the right to health may be pursued
through numerous, complementary approaches, such as the formulation
of health policies, or the implementation of health programmes developed
by the World Health Organization (WHO), or the adoption of specific
legal instruments. Moreover, the right to health includes certain
components which are legally enforceable.[1]
2. The human right to health is recognized in numerous international
instruments. Article 25.1 of the Universal Declaration of Human
Rights affirms: “Everyone has the right to a standard of living
adequate for the health of himself and of his family, including
food, clothing, housing and medical care and necessary social services”.
The International Covenant on Economic, Social and Cultural Rights
provides the most comprehensive article on the right to health in
international human rights law. In accordance with article 12.1
of the Covenant, States parties recognize “the right of everyone
to the enjoyment of the highest attainable standard of physical
and mental health”, while article 12.2 enumerates, by way of illustration,
a number of “steps to be taken by the States parties ... to achieve
the full realization of this right”. Additionally, the right to
health is recognized, inter alia, in article 5 (e) (iv) of the International
Convention on the Elimination of All Forms of Racial Discrimination
of 1965, in articles 11.1 (f) and 12 of the Convention on the Elimination
of All Forms of Discrimination against Women of 1979 and in article
24 of the Convention on the Rights of the Child of 1989. Several
regional human rights instruments also recognize the right to health,
such as the European Social Charter of 1961 as revised (art. 11),
the African Charter on Human and Peoples’ Rights of 1981 (art. 16)
and the Additional Protocol to the American Convention on Human
Rights in the Area of Economic, Social and Cultural Rights of 1988
(art. 10). Similarly, the right to health has been proclaimed by
the Commission on Human Rights,[2] as well as in the Vienna Declaration
and Programme of Action of 1993 and other international instruments.[3]
3. The right to health is closely related to and dependent upon
the realization of other human rights, as contained in the International
Bill of Rights, including the rights to food, housing, work, education,
human dignity, life, non-discrimination, equality, the prohibition
against torture, privacy, access to information, and the freedoms
of association, assembly and movement. These and other rights and
freedoms address integral components of the right to health.
4. In drafting article 12 of the Covenant, the Third Committee of
the United Nations General Assembly did not adopt the definition
of health contained in the preamble to the Constitution of WHO,
which conceptualizes health as “a state of complete physical, mental
and social well-being and not merely the absence of disease or infirmity”.
However, the reference in article 12.1 of the Covenant to “the highest
attainable standard of physical and mental health” is not confined
to the right to health care. On the contrary, the drafting history
and the express wording of article 12.2 acknowledge that the right
to health embraces a wide range of socio-economic factors that promote
conditions in which people can lead a healthy life, and extends
to the underlying determinants of health, such as food and nutrition,
housing, access to safe and potable water and adequate sanitation,
safe and healthy working conditions, and a healthy environment.
5. The Committee is aware that, for millions of people throughout
the world, the full enjoyment of the right to health still remains
a distant goal. Moreover, in many cases, especially for those living
in poverty, this goal is becoming increasingly remote. The Committee
recognizes the formidable structural and other obstacles resulting
from international and other factors beyond the control of States
that impede the full realization of article 12 in many States parties.
6. With a view to assisting States parties’ implementation of the
Covenant and the fulfilment of their reporting obligations, this
general comment focuses on the normative content of article 12 (Part
I), States parties’ obligations (Part II), violations (Part III)
and implementation at the national level (Part IV), while the obligations
of actors other than States parties are addressed in Part V. The
general comment is based on the Committee’s experience in examining
States parties’ reports over many years.
1. Normative content of article 12
7. Article 12.1 provides a definition of the right to health, while
article 12.2 enumerates illustrative, non-exhaustive examples of
States parties’ obligations.
8. The right to health is not to be understood as a right to be
healthy. The right to health contains both freedoms and entitlements.
The freedoms include the right to control one’s health and body,
including sexual and reproductive freedom, and the right to be free
from interference, such as the right to be free from torture, non-consensual
medical treatment and experimentation. By contrast, the entitlements
include the right to a system of health protection which provides
equality of opportunity for people to enjoy the highest attainable
level of health.
9. The notion of “the highest attainable standard of health” in
article 12.1 takes into account both the individual’s biological
and socio-economic preconditions and a State’s available resources.
There are a number of aspects which cannot be addressed solely within
the relationship between States and individuals; in particular,
good health cannot be ensured by a State, nor can States provide
protection against every possible cause of human ill health. Thus,
genetic factors, individual susceptibility to ill health and the
adoption of unhealthy or risky lifestyles may play an important
role with respect to an individual’s health. Consequently, the right
to health must be understood as a right to the enjoyment of a variety
of facilities, goods, services and conditions necessary for the
realization of the highest attainable standard of health.
10. Since the adoption of the two International Covenants in 1966
the world health situation has changed dramatically and the notion
of health has undergone substantial changes and has also widened
in scope. More determinants of health are being taken into consideration,
such as resource distribution and gender differences. A wider definition
of health also takes into account such socially-related concerns
as violence and armed conflict.[4] Moreover, formerly unknown diseases,
such as human immunodeficiency virus and acquired immunodeficiency
syndrome (HIV/AIDS), and others that have become more widespread,
such as cancer, as well as the rapid growth of the world population,
have created new obstacles for the realization of the right to health
which need to be taken into account when interpreting article 12.
11. The Committee interprets the right to health, as defined in
article 12.1, as an inclusive right extending not only to timely
and appropriate health care but also to the underlying determinants
of health, such as access to safe and potable water and adequate
sanitation, an adequate supply of safe food, nutrition and housing,
healthy occupational and environmental conditions, and access to
health-related education and information, including on sexual and
reproductive health. A further important aspect is the participation
of the population in all health-related decision-making at the community,
national and international levels.
12. The right to health in all its forms and at all levels contains
the following interrelated and essential elements, the precise application
of which will depend on the conditions prevailing in a particular
State party:
(a) Availability.
Functioning public health and health-care facilities, goods and
services, as well as programmes, have to be available in sufficient
quantity within the State party. The precise nature of the facilities,
goods and services will vary depending on numerous factors, including
the State party’s developmental level. They will include, however,
the underlying determinants of health, such as safe and potable
drinking water and adequate sanitation facilities, hospitals,
clinics and other health-related buildings, trained medical and
professional personnel receiving domestically competitive salaries,
and essential drugs, as defined by the WHO Action Programme on
Essential Drugs;[5]
(b) Accessibility. Health facilities, goods and services[6] have
to be accessible to everyone without discrimination, within the
jurisdiction of the State party. Accessibility has four overlapping
dimensions:
(i) Non-discrimination:
health facilities, goods and services must be accessible to
all, especially the most vulnerable or marginalized sections
of the population, in law and in fact, without discrimination
on any of the prohibited grounds;[7]
(ii) Physical accessibility: health facilities, goods and services
must be within safe physical reach for all sections of the population,
especially vulnerable or marginalized groups, such as ethnic
minorities and indigenous populations, women, children, adolescents,
older persons, persons with disabilities and persons with HIV/AIDS.
Accessibility also implies that medical services and underlying
determinants of health, such as safe and potable water and adequate
sanitation facilities, are within safe physical reach, including
in rural areas. Accessibility further includes adequate access
to buildings for persons with disabilities;
(iii) Economic accessibility (affordability): health facilities,
goods and services must be affordable for all. Payment for health-care
services, as well as services related to the underlying determinants
of health, has to be based on the principle of equity, ensuring
that these services, whether privately or publicly provided,
are affordable for all, including socially disadvantaged groups.
Equity demands that poorer households should not be disproportionately
burdened with health expenses as compared to richer households;
(iv) Information accessibility: accessibility includes the right
to seek, receive and impart information and ideas[8] concerning
health issues. However, accessibility of information should
not impair the right to have personal health data treated with
confidentiality;
(c) Acceptability.
All health facilities, goods and services must be respectful of
medical ethics and culturally appropriate, i.e. respectful of
the culture of individuals, minorities, peoples and communities,
sensitive to gender and life-cycle requirements, as well as being
designed to respect confidentiality and improve the health status
of those concerned;
(d) Quality. As well as being culturally acceptable, health facilities,
goods and services must also be scientifically and medically appropriate
and of good quality. This requires, inter alia, skilled medical
personnel, scientifically approved and unexpired drugs and hospital
equipment, safe and potable water, and adequate sanitation.
13. The non-exhaustive
catalogue of examples in article 12.2 provides guidance in defining
the action to be taken by States. It gives specific generic examples
of measures arising from the broad definition of the right to health
contained in article 12.1, thereby illustrating the content of that
right, as exemplified in the following paragraphs.[9]
Article 12.2 (a): The right to maternal, child and reproductive
health
14. “The provision for the reduction of the stillbirth rate and
of infant mortality and for the healthy development of the child”
(art. 12.2 (a))[10] may be understood as requiring measures to improve
child and maternal health, sexual and reproductive health services,
including access to family planning, pre- and post- natal care,[11]
emergency obstetric services and access to information, as well
as to resources necessary to act on that information.[12]
Article 12.2 (b): The right to healthy natural and workplace environments
15. “The improvement of all aspects of environmental and industrial
hygiene” (art. 12.2 (b)) comprises, inter alia, preventive measures
in respect of occupational accidents and diseases; the requirement
to ensure an adequate supply of safe and potable water and basic
sanitation; the prevention and reduction of the population’s exposure
to harmful substances such as radiation and harmful chemicals or
other detrimental environmental conditions that directly or indirectly
impact upon human health.[13] Furthermore, industrial hygiene refers
to the minimization, so far as is reasonably practicable, of the
causes of health hazards inherent in the working environment.[14]
Article 12.2 (b) also embraces adequate housing and safe and hygienic
working conditions, an adequate supply of food and proper nutrition,
and discourages the abuse of alcohol, and the use of tobacco, drugs
and other harmful substances.
Article 12.2 (c): The right to prevention, treatment and control
of diseases
16. “The prevention, treatment and control of epidemic, endemic,
occupational and other diseases” (art. 12.2 (c)) requires the establishment
of prevention and education programmes for behaviour-related health
concerns such as sexually transmitted diseases, in particular HIV/AIDS,
and those adversely affecting sexual and reproductive health, and
the promotion of social determinants of good health, such as environmental
safety, education, economic development and gender equity. The right
to treatment includes the creation of a system of urgent medical
care in cases of accidents, epidemics and similar health hazards,
and the provision of disaster relief and humanitarian assistance
in emergency situations. The control of diseases refers to States’
individual and joint efforts to, inter alia, make available relevant
technologies, using and improving epidemiological surveillance and
data collection on a disaggregated basis, the implementation or
enhancement of immunization programmes and other strategies of infectious
disease control.
Article 12.2 (d): The right to health facilities, goods and services[15]
17. “The creation of conditions which would assure to all medical
service and medical attention in the event of sickness” (art. 12.2
(d)), both physical and mental, includes the provision of equal
and timely access to basic preventive, curative, rehabilitative
health services and health education; regular screening programmes;
appropriate treatment of prevalent diseases, illnesses, injuries
and disabilities, preferably at community level; the provision of
essential drugs; and appropriate mental health treatment and care.
A further important aspect is the improvement and furtherance of
participation of the population in the provision of preventive and
curative health services, such as the organization of the health
sector, the insurance system and, in particular, participation in
political decisions relating to the right to health taken at both
the community and national levels.
Article 12: Special topics of broad application
Non-discrimination and equal treatment
18. By virtue of article 2.2 and article 3, the Covenant proscribes
any discrimination in access to health care and underlying determinants
of health, as well as to means and entitlements for their procurement,
on the grounds of race, colour, sex, language, religion, political
or other opinion, national or social origin, property, birth, physical
or mental disability, health status (including HIV/AIDS), sexual
orientation and civil, political, social or other status, which
has the intention or effect of nullifying or impairing the equal
enjoyment or exercise of the right to health. The Committee stresses
that many measures, such as most strategies and programmes designed
to eliminate health-related discrimination, can be pursued with
minimum resource implications through the adoption, modification
or abrogation of legislation or the dissemination of information.
The Committee recalls general comment No. 3, paragraph 12, which
states that even in times of severe resource constraints, the vulnerable
members of society must be protected by the adoption of relatively
low-cost targeted programmes.
19. With respect to the right to health, equality of access to health
care and health services has to be emphasized. States have a special
obligation to provide those who do not have sufficient means with
the necessary health insurance and health-care facilities, and to
prevent any discrimination on internationally prohibited grounds
in the provision of health care and health services, especially
with respect to the core obligations of the right to health.[16]
Inappropriate health resource allocation can lead to discrimination
that may not be overt. For example, investments should not disproportionately
favour expensive curative health services which are often accessible
only to a small, privileged fraction of the population, rather than
primary and preventive health care benefiting a far larger part
of the population.
Gender perspective
20. The Committee recommends that States integrate a gender perspective
in their health-related policies, planning, programmes and research
in order to promote better health for both women and men. A gender-based
approach recognizes that biological and sociocultural factors play
a significant role in influencing the health of men and women. The
disaggregation of health and socio-economic data according to sex
is essential for identifying and remedying inequalities in health.
Women and the right to health
21. To eliminate discrimination against women, there is a need to
develop and implement a comprehensive national strategy for promoting
women’s right to health throughout their life span. Such a strategy
should include interventions aimed at the prevention and treatment
of diseases affecting women, as well as policies to provide access
to a full range of high quality and affordable health care, including
sexual and reproductive services. A major goal should be reducing
women’s health risks, particularly lowering rates of maternal mortality
and protecting women from domestic violence. The realization of
women’s right to health requires the removal of all barriers interfering
with access to health services, education and information, including
in the area of sexual and reproductive health. It is also important
to undertake preventive, promotive and remedial action to shield
women from the impact of harmful traditional cultural practices
and norms that deny them their full reproductive rights.
Children and adolescents
22. Article 12.2 (a) outlines the need to take measures to reduce
infant mortality and promote the healthy development of infants
and children. Subsequent international human rights instruments
recognize that children and adolescents have the right to the enjoyment
of the highest standard of health and access to facilities for the
treatment of illness.[17] The Convention on the Rights of the Child
directs States to ensure access to essential health services for
the child and his or her family, including pre- and post- natal
care for mothers. The Convention links these goals with ensuring
access to child-friendly information about preventive and health-promoting
behaviour and support to families and communities in implementing
these practices. Implementation of the principle of non-discrimination
requires that girls, as well as boys, have equal access to adequate
nutrition, safe environments, and physical as well as mental health
services. There is a need to adopt effective and appropriate measures
to abolish harmful traditional practices affecting the health of
children, particularly 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 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.
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.[20]
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.[21]
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.
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.[24] 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 detailed plan for realizing
the right to health. States must ensure provision of health care,
including immunization programmes against the major infectious diseases,
and ensure equal access for all to the underlying determinants of
health, such as nutritiously safe food and potable drinking water,
basic sanitation and adequate housing and living conditions. Public
health infrastructures should provide for sexual and reproductive
health services, including safe motherhood, particularly in rural
areas. States have to ensure the appropriate training of doctors
and other medical personnel, the provision of a sufficient number
of hospitals, clinics and other health-related facilities, and the
promotion and support of the establishment of institutions providing
counselling and mental health services, with due regard to equitable
distribution throughout the country. Further obligations include
the provision of a public, private or mixed health insurance system
which is affordable for all, the promotion of medical research and
health education, as well as information campaigns, in particular
with respect to HIV/AIDS, sexual and reproductive health, traditional
practices, domestic violence, the abuse of alcohol and the use of
cigarettes, drugs and other harmful substances. States are also
required to adopt measures against environmental and occupational
health hazards and against any other threat as demonstrated by epidemiological
data. For this purpose they should formulate and implement national
policies aimed at reducing and eliminating pollution of air, water
and soil, including pollution by heavy metals such as lead from
gasoline. Furthermore, States parties are required to formulate,
implement and periodically review a coherent national policy to
minimize the risk of occupational accidents and diseases, as well
as to provide a coherent national policy on occupational safety
and health services.[25]
37. The obligation to fulfil (facilitate) requires States inter
alia to take positive measures that enable and assist individuals
and communities to enjoy the right to health. States parties are
also obliged to fulfil (provide) a specific right contained in the
Covenant when individuals or a group are unable, for reasons beyond
their control, to realize that right themselves by the means at
their disposal. The obligation to fulfil (promote) the right to
health requires States to undertake actions that create, maintain
and restore the health of the population. Such obligations include:
(i) fostering recognition of factors favouring positive health results,
e.g. research and provision of information; (ii) ensuring that health
services are culturally appropriate and that health-care staff are
trained to recognize and respond to the specific needs of vulnerable
or marginalized groups; (iii) ensuring that the State meets its
obligations in the dissemination of appropriate information relating
to healthy lifestyles and nutrition, harmful traditional practices
and the availability of services; (iv) supporting people in making
informed choices about their health.
International obligations
38. In its general comment No. 3, the Committee drew attention to
the obligation of all States parties to take steps, individually
and through international assistance and cooperation, especially
economic and technical, towards the full realization of the rights
recognized in the Covenant, such as the right to health. In the
spirit of Article 56 of the Charter of the United Nations, the specific
provisions of the Covenant (arts. 12, 2.1, 22 and 23) and the Alma-Ata
Declaration on primary health care, States parties should recognize
the essential role of international cooperation and comply with
their commitment to take joint and separate action to achieve the
full realization of the right to health. In this regard, States
parties are referred to the Alma-Ata Declaration which proclaims
that the existing gross inequality in the health status of the people,
particularly between developed and developing countries, as well
as within countries, is politically, socially and economically unacceptable
and is, therefore, of common concern to all countries.[26]
39. To comply with their international obligations in relation to
article 12, States parties have to respect the enjoyment of the
right to health in other countries, and to prevent third parties
from violating the right in other countries, if they are able to
influence these third parties by way of legal or political means,
in accordance with the Charter of the United Nations and applicable
international law. Depending on the availability of resources, States
should facilitate access to essential health facilities, goods and
services in other countries, wherever possible, and provide the
necessary aid when required.[27] States parties should ensure that
the right to health is given due attention in international agreements
and, to that end, should consider the development of further legal
instruments. In relation to the conclusion of other international
agreements, States parties should take steps to ensure that these
instruments do not adversely impact upon the right to health. Similarly,
States parties have an obligation to ensure that their actions as
members of international organizations take due account of the right
to health. Accordingly, States parties which are members of international
financial institutions, notably the International Monetary Fund,
the World Bank, and regional development banks, should pay greater
attention to the protection of the right to health in influencing
the lending policies, credit agreements and international measures
of these institutions.
40. States parties have a joint and individual responsibility, in
accordance with the Charter of the United Nations and relevant resolutions
of the United Nations General Assembly and of the World Health Assembly,
to cooperate in providing disaster relief and humanitarian assistance
in times of emergency, including assistance to refugees and internally
displaced persons. Each State should contribute to this task to
the maximum of its capacities. 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. Moreover, given that some diseases are easily transmissible
beyond the frontiers of a State, the international community has
a collective responsibility to address this problem. The economically
developed States parties have a special responsibility and interest
to assist the poorer developing States in this regard.
41. States parties should refrain at all times from imposing embargoes
or similar measures restricting the supply of another State with
adequate medicines and medical equipment. Restrictions on such goods
should never be used as an instrument of political and economic
pressure. In this regard, the Committee recalls its position, stated
in general comment No. 8, on the relationship between economic sanctions
and respect for economic, social and cultural rights.
42. While only States are parties to the Covenant and thus ultimately
accountable for compliance with it, all members of society individuals,
including health professionals, families, local communities, intergovernmental
and non-governmental organizations, civil society organizations,
as well as the private business sector have responsibilities regarding
the realization of the right to health. States parties should therefore
provide an environment which facilitates the discharge of these
responsibilities.
Core obligations
43. In general comment No. 3, the Committee confirms that States
parties have a core obligation to ensure the satisfaction of, at
the very least, minimum essential levels of each of the rights enunciated
in the Covenant, including essential primary health care. Read in
conjunction with more contemporary instruments, such as the Programme
of Action of the International Conference on Population and Development,[28]
the Alma-Ata Declaration provides compelling guidance on the core
obligations arising from article 12. Accordingly, in the Committee’s
view, these core obligations include at least the following obligations:
(a) To ensure
the right of access to health facilities, goods and services on
a non discriminatory basis, especially for vulnerable or marginalized
groups;
(b) To ensure access to the minimum essential food which is nutritionally
adequate and safe, to ensure freedom from hunger to everyone;
(c) To ensure access to basic shelter, housing and sanitation,
and an adequate supply of safe and potable water;
(d) To provide essential drugs, as from time to time defined under
the WHO Action Programme on Essential Drugs;
(e) To ensure equitable distribution of all health facilities,
goods and services;
(f) To adopt and implement a national public health strategy and
plan of action, on the basis of epidemiological evidence, addressing
the health concerns of the whole population; the strategy and
plan of action shall be devised, and periodically reviewed, on
the basis of a participatory and transparent process; they shall
include methods, such as right to health indicators and benchmarks,
by which progress can be closely monitored; the process by which
the strategy and plan of action are devised, as well as their
content, shall give particular attention to all vulnerable or
marginalized groups.
44. The Committee
also confirms that the following are obligations of comparable priority:
(a) To ensure
reproductive, maternal (prenatal as well as post-natal) and child
health care;
(b) To provide immunization against the major infectious diseases
occurring in the community;
(c) To take measures to prevent, treat and control epidemic and
endemic diseases;
(d) To provide education and access to information concerning
the main health problems in the community, including methods of
preventing and controlling them;
(e) To provide appropriate training for health personnel, including
education on health and human rights.
45. For the
avoidance of any doubt, the Committee wishes to emphasize that it
is particularly incumbent on States parties and other actors in
a position to assist, to provide “international assistance and cooperation,
especially economic and technical”[29] which enable developing countries
to fulfil their core and other obligations indicated in paragraphs
43 and 44 above.
3. Violations
46. When the normative content of article 12 (Part I) is applied
to the obligations of States parties (Part II), a dynamic process
is set in motion which facilitates identification of violations
of the right to health. The following paragraphs provide illustrations
of violations of article 12.
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
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.
Notes
[1] For example, the principle of non-discrimination in relation
to health facilities, goods and services is legally enforceable
in numerous national jurisdictions.
[2] In its resolution 1989/11.
[3] The Principles for the Protection of Persons with Mental Illness
and for the Improvement of Mental Health Care adopted by the United
Nations General Assembly in 1991 (resolution 46/119) and the Committee’s
general comment No. 5 on persons with disabilities apply to persons
with mental illness; the Programme of Action of the International
Conference on Population and Development held at Cairo in 1994,
as well as the Declaration and Programme for Action of the Fourth
World Conference on Women held in Beijing in 1995 contain definitions
of reproductive health and women’s health, respectively.
[4] Common article 3 of the Geneva Conventions for the protection
of war victims (1949); Additional Protocol I (1977) relating to
the Protection of Victims of International Armed Conflicts, article
75 (2) (a); Additional Protocol II (1977) relating to the Protection
of Victims of Non-International Armed Conflicts, article 4 (a).
[5] See WHO Model List of Essential Drugs, revised December 1999,
WHO Drug Information, vol. 13, No. 4, 1999.
[6] Unless expressly provided otherwise, any reference in this general
comment to health facilities, goods and services includes the underlying
determinants of health outlined in paragraphs 11 and 12 (a) of this
general comment.
[7] See paragraphs 18 and 19 of this general comment.
[8] See article 19.2 of the International Covenant on Civil and
Political Rights. This general comment gives particular emphasis
to access to information because of the special importance of this
issue in relation to health.
[9] In the literature and practice concerning the right to health,
three levels of health care are frequently referred to: primary
health care typically deals with common and relatively minor illnesses
and is provided by health professionals and/or generally trained
doctors working within the community at relatively low cost; secondary
health care is provided in centres, usually hospitals, and typically
deals with relatively common minor or serious illnesses that cannot
be managed at community level, using specialty-trained health professionals
and doctors, special equipment and sometimes inpatient care at comparatively
higher cost; tertiary health care is provided in relatively few
centres, typically deals with small numbers of minor or serious
illnesses requiring specialty-trained health professionals and doctors
and special equipment, and is often relatively expensive. Since
forms of primary, secondary and tertiary health care frequently
overlap and often interact, the use of this typology does not always
provide sufficient distinguishing criteria to be helpful for assessing
which levels of health care States parties must provide, and is
therefore of limited assistance in relation to the normative understanding
of article 12.
[10] According to WHO, the stillbirth rate is no longer commonly
used, infant and under-5 mortality rates being measured instead.
[11] Prenatal denotes existing or occurring before birth; perinatal
refers to the period shortly before and after birth (in medical
statistics the period begins with the completion of 28 weeks of
gestation and is variously defined as ending one to four weeks after
birth); neonatal, by contrast, covers the period pertaining to the
first four weeks after birth; while post-natal denotes occurrence
after birth. In this general comment, the more generic terms pre-
and post- natal are exclusively employed.
[12] Reproductive health means that women and men have the freedom
to decide if and when to reproduce and the right to be informed
and to have access to safe, effective, affordable and acceptable
methods of family planning of their choice as well as the right
of access to appropriate health-care services that will, for example,
enable women to go safely through pregnancy and childbirth.
[13] The Committee takes note, in this regard, of Principle 1 of
the Stockholm Declaration of 1972 which states: “Man has the fundamental
right to freedom, equality and adequate conditions of life, in an
environment of a quality that permits a life of dignity and well
being”, as well as of recent developments in international law,
including General Assembly resolution 45/94 on the need to ensure
a healthy environment for the well-being of individuals; Principle
1 of the Rio Declaration; and regional human rights instruments
such as article 10 of the San Salvador Protocol to the American
Convention on Human Rights.
[14] ILO Convention No. 155, article 4.2.
[15] See paragraph 12 (b) and note 8 above.
[16] For the core obligations, see paragraphs 43 and 44 of the present
general comments.
[17] Article 24.1 of the Convention on the Rights of the Child.
[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 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.
[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.
[24] General Assembly resolution 46/119 (1991).
[25] Elements of such a policy are the identification, determination,
authorization and control of dangerous materials, equipment, substances,
agents and work processes; the provision of health information to
workers and the provision, if needed, of adequate protective clothing
and equipment; the enforcement of laws and regulations through adequate
inspection; the requirement of notification of occupational accidents
and diseases, the conduct of inquiries into serious accidents and
diseases, and the production of annual statistics; the protection
of workers and their representatives from disciplinary measures
for actions properly taken by them in conformity with such a policy;
and the provision of occupational health services with essentially
preventive functions. See ILO Occupational Safety and Health Convention,
1981 (No. 155) and Occupational Health Services Convention, 1985
(No. 161).
[26] Article II, Alma-Ata Declaration, Report of the International
Conference on Primary Health Care, Alma-Ata, 6-12 September 1978,
in: World Health Organization, “Health for All” Series, No. 1, WHO,
Geneva, 1978.
[27] See paragraph 45 of this general comment.
[28] Report of the International Conference on Population and Development,
Cairo, 5 13 September 1994 (United Nations publication, Sales No.
E.95.XIII.18), chap. I, resolution 1, annex, chaps. VII and VIII.
[29] Covenant, art. 2.1.
[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.
1 | 2
| 3 | 4
| 5 | 6
| 7 | 8
| 9 | 10
| 11 | 12
| 13 | 14
| 15
This
page was last updated on July 10, 2004
“IWRAW
Asia Pacific is an independent, non-profit, NGO in Special consultative
status with the Economic and Social Council of the United Nations.”
©IWRAW Asia Pacific
Contact Us | Site
Map |
