Continuing Discussion of the International Covenant on Economic, Social and Cultural Rights   (ICESCR)

• Critical role for and obligation of all signatories (nations)CLICK .
• Requirement of non-discrimination, those alread ill CLICK .
• Steps to be taken on implenting the ICESCR CLICK .
• Right to health and/or health care in 60+ national constitutions CLICK .
• States obligations to facilitate, provide and promote. CLICK .

Critical Role for and Obligation of All Signatory Nations

Edited from a discussion by A.E. Yamin ^*1 of the ICESCR

From the public health perspective and seen within the human rights framework, issues of cost-effectiveness must be balanced by other priorities by the state. Governments have a critical role to play both in ensuring basic health care goods and services and in regulating the inequities of the market. Indeed the central question at issure from the human rights perspective is whether the government is taking steps by "all appropriate means" to make medications [and other needed medical treatments] accessible, physically and economically, and to make information relating to these accessible as well.

Transforming our understanding of access to needed medical care into a human rights issue leads us to ask NOT if life-saving treatments can be provided to the sick and destitute, but how governments, third-party states and international organizations can facilitate that process and ensure that the treatments are indeed so provided. Human Rights Law provides a set of principles according to which laws, policies and programs can be evaluated and reformed. ^*2

Non-discrimination in Access to Medical Care  

In accordance with human rights principles, access to health care facilities, trained personnel and needed medications must be realized on a non-discriminatory basis. That is, without distinction of any kind based on race, ethnic group, color, sex, language, religion, political opinion, national or social origin, property, birth, or any other status. Discrimination based on any of these circumstances nullifies or impairs the enjoyment and exercise of the right to life and to health and so constitutes a violation of international law. ^*3

Self-appointed guardians of international health cannot ehtically erase the tens of millions already sick with HIV disease or the millions already dying during childbirth or from diseases like drug-resistant malaria. The fundamental primise underlying the notion of universal human rights is that people are not expendable; those people's avoidable deaths are not just a tragic shame. Adopting the human rights view of access to health care changes how we think about this issue and what we do about it.^*4

Steps to be Taken on Implementing ICESCR  

Not only does this covenant set out a goal or aspiration for all nations part of the world community, but its content specifically outlines the practical steps which must be taken for the implementation of economic, social and cultural rights:

Steps to be taken by the states party to this covenant to achieve the full realization of this right shall include those necessary for .. the prevention, treatment and control of epidemic, endemic, occupational and other diseases .. and the creation of conditions which would assure to all medical service and medical attention in the event of sickness.

The UN deputized treaty-monitoring bodies regularly issue authoritative interpretations of aspects of their respective treaties. The ESCR Committee has explained that all health care facilities, goods and services should be: (1) available in sufficient quantity; (2) accessible to everyone without discrimination; (3) acceptable in the sense of respectful of medical ethics and customs; and (4) of good quality and scientifically appropriate. Physical accessibility was further specifically defined as within safe reach by all sections of the population, especially vulnerable or marginalized groups, such as ethnic minorities, indigenous populations, women, children, the elderly and persons with disabilities or with HIV/AIDS. ^*5

Reflection in National Constitutions  

The World Health Organization commissioned the International Commission of Jurists to embark upon a survey of national constitutions that enshrine the right to health and health-related rights. According to the preliminary findings of that study, over 60 constitutional provisions include the right to health or the right to health care, while over 40 constitutional provisions include health-related rights, such as the right to reproductive health care, the right of the disabled to material assistance, and the right to a healthy environment.^*6

Governments are Obliged to Facilitate, Provide and Promote  

According to the General Comment of the UN's ESCR Committee nations have the obligation to fulfill the right to health of their citizens. In this fulfillment they must facilitate, provide and promote the public's right to health.

Every state party to the ICESCR is obliged to fulfill the right to health, including moving progressively toward universal accessibility of medications and other care through legislation, policies and programs that allocate resources and effect a sustained and equitable distribution of these. ^*7

References

1. Alicia E. Yamin JD and MPH is an instructor in the Department of Health Policy and Management Harvard School of Public Health residing most of the year in Montevideo Uruguay. She is Vice President of the Center for Economic and Social Rights and on the advisory board for Physicians for Human Rights. Dr. Yamin's groundbreaking workon Access to Medications on Under International Law (see citation below) focuses on medications in particular although the law she cites applies equally to other medically necessary treatments.

2. Not Just a Tragedy: Access to Medications as a Right Under International Law, A.E. Yamin, Boston Univ International Law Journal Vol 21, No. 2 pages 327 and 329, see note on author above.

3. Closely following General Comment 14 paragraphs 11-12 of the 20th Session of the UN Commision on Econ., Soc. & Cult Rts (2000) discussing the ICESCR

4. Paragraph begins with quote from Paul Farmer, from "Pathologies of Power: Health, Human Rights, and the New War on the Poor" and continues with a few comments by Dr. Yamin. Paul Farmer, MD, PhD, and faculty member of the Harvard Medical School, Department of Social Medicine, is a medical anthropologist whose work draws primarily on active clinical practice and focuses on diseases disproportionately afflicting the poor. He divides his clinical time between the Brigham and Women's Hospital (Division of Infectious Disease), where he is an attending physician, and a charity hospital in rural Haiti, the Clinique Bon Sauveur, where he serves as medical co-director.

5. UN Committee on Econ., Soc. & Cult. Rights, General Comment 14, "The Right to the Hightest Attainable Standard of Health".

6. Report of the Special Rapporteur, Paul Hunt, submitted in accordance with Commission Resolution 2002/31 UN ESCROR 59th Session Agenda item 23 Paragraph 23 CLICK HERE

7. Paragraph 36 of General Comment 14, of the UN Committee on ESCR (2000)