MODULE 14 (continued)

THE RIGHT TO HEALTH
USING MODULE 14 IN A TRAINING PROGRAM
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Primary health care-an element of the states’ obligations

The Maastricht Guideline No. 6 (See Module 3) affirms that "the failure of States to provide primary health care to those in need may amount to a violation" of the obligation of implementation.  Consistent with the obligation to guarantee minimum levels of subsistence to the population (CESCR General Comment 3), WHO also argues that "there is a health baseline below which no individuals in any country should find themselves."27 The Declaration of Alma-Ata identifies primary health care (PHC) as the key to fulfilling such an obligation, as it is essential for the attainment of a "level of health that will permit [all people] to lead a socially and economically productive life" (para. 5).  PHC "constitutes the first element of a continuing health care process" and is described as "the central function and main focus" of the country’s health system and an integral part of "the overall social and economic development of the community" (para. 6).  The declaration calls on all governments to formulate national policies, strategies and plans of action to guarantee PHC for all (para. 8).  According to PAHO, even if PHC cannot be the basis of a human right that can be demanded individually, "it may be the foundation for outlining the content of the government’s obligation."28 The Declaration of Alma-Ata describes PHC as including at least:

Education concerning prevailing health problems and the methods of preventing and controlling them; promotion of food supply and proper nutrition; an adequate supply of safe water and basic sanitation; maternal and child health care, including family planning; immunization against the major infectious diseases; prevention and control of locally endemic diseases; appropriate treatment of common diseases and injuries; and provision of essential drugs. (para. 8[3])

The legal authority for considering that primary health care is an element of state obligations can be found in article 24(2)(b) of the CRC; article 10(2)(a) of the Protocol of San Salvador; ILO Convention No. 169 on Indigenous Peoples, articles 25(2) and 25(3); and the Declaration of Alma-Ata.29 As seen above, the Declaration establishes the major lines of a health-care system based on primary health care.  In addition, primary health care is among the commitments in the Program of Action from the Cairo International Conference on Population and Development, and the Declaration and Program of Action of the World Summit on Social Development.  In addition, under article 12, the ICESCR has implicitly recognized primary health care as an expression of state obligation.  In guideline 2 for the submission of reports, states parties are asked to state whether primary health care is part of the country’s health policy, and if so, to specify the measures taken in this respect.

Other elements of states’ obligations under the right to health

In addition to the fundamental principle of nondiscrimination, other important elements of state obligation under the right to health are:

Accessibility: The ICESCR argues, with respect to specific groups, that the right to physical and mental health "also implies the right to have access to, and to benefit from, those medical and social services . . . which enable persons with disabilities to become independent, prevent further disabilities and support their social integration."30 Accessibility suggests several areas of intervention to guarantee enjoyment of the right-financial, geographic and cultural.

Participation: According to the Declaration of Alma-Ata, persons have the right and duty to participate individually and collectively in the planning and implementation of their own health care.31 At the same time, the preamble to the WHO Constitution accords fundamental importance to attaining health.  Primary health care not only requires, but promotes, through education in health, the participation of the community and individuals in "the planning, organization, operation, and monitoring"32 of the system.

Basic health care services free of charge: The principle of free public health care is a subject of debate.  While there is no legal rule that makes free services compulsory (as is the case with the right to education), there are grounds for considering that it forms part of states’ obligations.  The Declaration on Social Progress and Development establishes that one of the goals for attaining the objectives of the declaration is "the provision of free health services to the whole population."  CEDAW provides that free maternal and child health services shall be available as needed (art. 12[2]).33

Implementation Mechanisms

International mechanisms

Mechanisms derived from human rights treaties

The UN system has several established forums for monitoring the right to health:

• CESCR:  States parties have the obligation to submit a report once every five years on the measures taken to implement the right to health.  The CESCR makes reference to four main aspects to be taken into account: the health situation, accessibility of services and health measures, the situation of specific sectors, and the progressive nature of the measures and effects.  The CESCR’s reporting guidelines34 refer specifically to preparation of reports related to the right to health.  In addition to the information on general principles, some of the most important considerations articulated by the CESCR refer to the ratio of public services/private sectors; situation of the rural population; situation of women; situation of HIV/AIDS and preventive policies; health in prisons; drug use and abuse; and effects of traditional health practices (with special attention to the possible violation of cultural rights).

States’ attitudes towards and methodologies for submission of the reports vary widely.  A broad range of issues must be addressed, and because the CESCR did not require a stricter methodology, reports vary in quality and approach.  In addition, the use of statistical indicators in reports poses two problems: one relates to reliability, the other to the fact that the failure to contextualize indicators means it is difficult to identify causes of possible stagnation.  Scant attention is given in reports to issues as important as mental health.  Furthermore, more reliable and "standardized" mechanisms of design are needed to evaluate progress over time (with respect to both the health situation and the adoption of measures).  One important factor in the work to date of the committee is the limited (though increasing) willingness of WHO to participate actively before the CESCR; to date it has submitted two reports at its own initiative.

• International Convention on the Elimination of All Forms of Racial Discrimination: Article 9 establishes the obligation to submit, every two years, reports on the measures adopted to eliminate and/or prevent racial discrimination in the enjoyment of the rights set forth in the ICERD, including the right to health.
• CEDAW:  There is an obligation to submit a report every four years (art. 18).  Some of the areas addressed are: the health conditions of women; reproductive health and maternal and child care; traditional practices; information on abortion (legal status, practices, effects of illegality); and the status of women with respect to HIV/AIDS.
• CRC:  Submission of a report is required once every five years (art. 44).

Other mechanisms

In addition, WHO has its own mechanisms for requiring submission of reports, as do its regional offices.  There is a certain reciprocity between the WHO and UN systems for submitting reports, considering the consultative status of WHO before the UN system and the fact that WHO has undertaken to monitor the provisions of treaties that set forth the right to health.  According to the WHO Constitution, states parties are to submit an annual report on the measures taken to ensure certain levels of health to the entire population (art. 61); an annual report on the measures adopted to implement the WHO recommendations, and on the application of the provisions of the instruments that protect the right to health that have been ratified (art. 62); the submission of all health-related statutes, regulations, and statistical information, especially regarding health-related measures (art. 63); the submission of statistical and epidemiological reports (art. 64); and the forwarding of any additional information to the executive committee of WHO (art. 65).

Domestic mechanisms

The possibility of implementing the right to health through domestic judicial systems, either by invoking international instruments or by making reference to the constitution, has been explored in a relatively large number of countries.36  In general, the courts tend to find ways not to base their decisions on the right to health.  There have been some positive decisions regarding justiciability based on the constitutional recognition of the right.  In 1993, the Supreme Court of the Philippines required that logging permits be revoked by invoking constitutional principles 15 and 16, which set forth the rights to health and to a healthy environment, underscoring that ESC rights are accorded the same priority as civil and political rights.37 The Supreme Court of India established as "an essential part of the obligations" of the state to provide adequate medical services, drawing a link between the lack of adequate emergency treatment and guaranteeing the right to life.38  The Constitutional Court of South Africa made reference to this same judgment, but decided it did not apply to the case before it, as the plaintiff suffered from a chronic disease, and so apparently would not apply the constitutional provision referring to the obligation to provide emergency assistance.39

Furthermore, the progressive nature of the right to health requires that one explore the mechanisms of administrative law, whose effectiveness and methodology will depend on the specific characteristics of the domestic order of each state.  The existence of a tiered health system and an identifiable administrative order are favorable to success in implementing these mechanisms.

Finally, the broad scope of protection offered by the recurso de amparo (a special remedy to seek an injunction of imminent state action alleged to violate one’s constitutional rights), recognized by a large number of countries, is a means by which the programmatic concept of the right is giving way to a directly enforceable right, subjective in nature (see case study above).

Challenges and Strategies for Furthering the Right to Health

The following are suggestions for initiatives activists can pursue to promote the right to health:

• Intervene with supervisory organs: Take advantage of the gradual opening of supervisory organs (e.g., the ICESCR) to the participation of nongovernmental actors so as to make use of space available through existing channels.
• Define the content of the right: Work towards a more precise definition of the contents of the right (see Module 8).
• Work with WHO: Explore possible channels for furthering the involvement of WHO with a view to its (a) effective participation in the system of international supervision; (b) involvement in monitoring of local public policies that affect observance of the right to health; and (c) nonparticipation in reform programs that sponsor the dismantling of the public health structure.
• Pursue legislative recognition of the right to health: Efforts along these lines should be focused not only on constitutional recognition, but on all levels of regulation of health matters, from an overall perspective as well as with respect to protection for specific groups (see case study, below).
• Pursue litigation: Develop national and international strategies and explore the possibili­ties of litigating in the regional systems.
• Challenge reduction of the role of the state: In the context of economic globalization and the "opening of markets," there is major pressure to reduce the scope of authority of the state and thus its obligations.  These trends are to be found in both the legislative and ex­ecutive branches, and especially affect social protection policies.
• Encourage systematic implementation of the right to health: The right to health requires the various branches of government to adopt measures for the systematic and program­matic implementation of the structure of protection.

Author: The author of this module is Enrique González

USING MODULE 14 IN A TRAINING PROGRAM

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