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The Human Right to the Highest Attainable Standard of Health: New Opportunities and Challenges

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The Human Right to the Highest Attainable Standard of Health: New Opportunities and Challenges Transactions of the Royal Society of Tropical Medicine and Hygiene (2006) 100, 603—607 available at www.sciencedirect.com journal homepage: www.elsevierhealth.com/journals/trst LEADING ARTICLE The human right to the highest attainable standard of health: new opportunities and challenges Paul Hunt ∗ UN Special Rapporteur on the right to the highest attainable standard of health The Human Rights Centre, University of Essex, Colchester, Essex, CO4 3SQ, UK and University of Waikato, New Zealand KEYWORDS Summary The health and human rights communities have much in common. Recently, the Human rights; international community has begun to devote more attention to the right to the highest attain- The right to health; able standard of health (‘the right to health’). Today, this human right presents health and Poverty reduction; human rights professionals with a range of new opportunities and challenges. The right to Neglected diseases; health is enshrined in binding international treaties and constitutions. It has numerous ele- UN Special ments, including the right to health care and the underlying determinants of health, such as Rapporteur; adequate sanitation and safe water. It empowers disadvantaged individuals and communities. US—Peru trade If integrated into national and international policies, it can help to establish policies that are negotiations meaningful to those living in poverty. The author introduces his work as the UN Special Rap- porteur on the right to health. By way of illustration, he briefly considers his interventions on Niger’s Poverty Reduction Strategy, Uganda’s neglected (or tropical or poverty-related) dis- eases, and the recent US—Peru trade negotiations. With the maturing of human rights, health professionals have become an indispensable part of the global human rights movement. While human rights do not provide magic solutions, they have a constructive contribution to make. The failure to use them is a missed opportunity of major proportions. © 2006 Royal Society of Tropical Medicine and Hygiene. Published by Elsevier Ltd. All rights reserved. 1. Introduction rights. Increasingly, health and human rights professionals are recognizing their common interests and mutually rein- The health and human rights communities have much in forcing goals. common. Both are animated by the well-being of individ- The last few years have seen some remarkable develop- uals and populations. In both communities, many have a ments in the field of international human rights. For some particular preoccupation with discrimination and disadvan- decades, the international community focused on classic tage. While human rights violations often lead to higher civil and political rights — the prohibition against torture, morbidity and mortality, health programmes have a cru- the right to a fair trial, freedom of speech and so on. But, cial contribution to make towards the realization of human since the late 1990s, the international community has begun to devote more attention to economic, social and cultural rights — the rights to education, food and shelter, as well as ∗ Tel.: +44 1206 872558; fax: +44 1206 873627. the right to the highest attainable standard of physical and E-mail address: [email protected] mental health (Yamin, 2005). 0035-9203/$ — see front matter © 2006 Royal Society of Tropical Medicine and Hygiene. Published by Elsevier Ltd. All rights reserved. doi:10.1016/j.trstmh.2006.03.001 604 P. Hunt As the right to the highest attainable standard of health obligations demand effective mechanisms of accountability. migrates from the margins to the human rights mainstream, The combined effect of these three dimensions — standards, it presents human rights and health professionals with a obligations and accountability — is the empowerment of range of new opportunities and challenges (Gruskin et al., vulnerable individuals and disadvantaged communities. 2005; UNDP, 2000; WHO, 2002). While the right to the highest attainable standard of health is a powerful campaigning and advocacy tool, it is more than just a slogan. Additionally, it has normative depth 2. What is the right to the highest attainable and something constructive and concise to say to policy- standard of health? makers. The right can help to ensure that health policies devote special attention to the vulnerable and disadvan- The right to the highest attainable standard of health is cod- taged, enhance community participation, ensure that health ified in numerous legally binding international and regional interventions strengthen health systems, and so on. If inte- human rights treaties (E/CN.4/2003/58). (The full name of grated into national and international health policy-making, the right is ‘the right of everyone to the enjoyment of the the right to health can help to establish policies that are highest attainable standard of physical and mental health’. robust, sustainable, equitable and meaningful to those liv- For convenience, this is often shortened to the ‘right to ing in poverty. the highest attainable standard of health’ or the ‘right to health’.) These binding treaties are beginning to generate case law and other jurisprudence that shed light on the 3. The UN Special Rapporteur on the right to scope of the right to health. The right is also enshrined the highest attainable standard of health in numerous national constitutions: over 100 constitutional provisions include the right to health or health-related A UN Special Rapporteur is an independent expert appointed rights. Moreover, in some jurisdictions constitutional pro- to promote and protect human rights. Some Special Rappor- visions on the right to the highest attainable standard of teurs are appointed to focus on human rights in a particular health have generated significant jurisprudence (for exam- country, such as Myanmar. Some are appointed to focus on ple, the Ecuadorian case of Mendoza and others v Ministry of a particular human rights theme, such as violence against Public Health and the Director of the HIV-AIDS National Pro- women. And some are appointed to promote and protect a gramme, Resolucion No. 0749-2003-RA, 28 January 2004). specific human right, such as the right to the highest attain- While the right to health includes the right to health care, able standard of health. it goes beyond health care to encompass the underlying Special Rapporteurs are neither employed nor paid by determinants of health, such as safe drinking water, ade- the UN. Nor do they represent any country. They are inde- quate sanitation and access to health-related information. pendent experts reporting to the UN Commission on Human The right includes freedoms, such as the right to be free from Rights (at the time of writing, it is anticipated that the UN discrimination and involuntary medical treatment. It also Human Rights Council will shortly replace the UN Commis- includes entitlements, such as the right to essential primary sion on Human Rights). Some also report to the UN General health care. The right has numerous elements, including Assembly. With scant resources, their only sanction is to child health, maternal health and access to essential drugs. place their findings, concerns and recommendations in the Like other human rights, it has a particular concern for the public domain. disadvantaged, the vulnerable and those living in poverty. For many years, the UN appointed Special Rapporteurs to The right requires an effective, inclusive health system of focus on the classic civil and political rights, such as free- good quality. dom of religion and the prohibition against torture. Only International human rights law is realistic and recog- more recently has it appointed experts to focus on eco- nizes that the right to the highest attainable standard nomic, social and cultural rights, the first being the Special of health for all cannot be realized overnight. Thus, the Rapporteur on the right to education, who was appointed right is expressly subject to both progressive realization in 1998. Two others soon followed — on the right to food and resource availability. Although qualified in this way, and the right to adequate housing. In 2002, the UN decided nonetheless the right to health imposes some obligations to appoint a Special Rapporteur on the right to the high- of immediate effect, such as non-discrimination, and the est attainable standard of health. Supported by civil society requirement that the State at least prepares a national organizations, Brazil led the campaign to establish this posi- plan for health care and protection. The right demands tion. Two countries voted against it: the United States and indicators and benchmarks to monitor the progressive Australia. Following the UN’s decision, I was nominated to realization of the right. It also encompasses the active the position by New Zealand and appointed in 2002 by the and informed participation of individuals and communities Chairperson of the UN Commission on Human Rights for a in the health decision-making that affects them. Under term of three years, now renewed until 2008. international human rights law, developed states have In brief, the Special Rapporteur is asked to help states, some responsibilities towards the realization of the right and others, better promote and protect the right to the to health in poor countries. Crucially, because the right highest attainable standard of health (UNHCHR, 2003). To to health gives rise to entitlements and obligations, it give some shape to the mandate, my first report identifies demands effective mechanisms of accountability. three key objectives: to promote — and encourage others At root, the right to the highest attainable standard to promote — the right to health as a fundamental human of health consists of globally legitimized standards; out right; to clarify the scope of the right to health; and to iden- of these standards derive legal obligations, and these tify good practices for the operationalization of the right The human right to the highest attainable standard of health 605 to health at community, national and international levels By way of illustration, the following paragraphs briefly (E/CN.4/2003/58).
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