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World Health Organization

Health & Human Rights

Publication Series

Issue No.1, July 2002

Questions

Answers

Health

Human

Rights

Questions

Answers

Health

Human

Rights

onon

Acknowledgements:

25 Questions and Answers on Health and Human Rights was made

possible by support from the Government of Norway and was written

by Helena Nygren-Krug, Health and Human Rights Focal Point, WHO,

through a process of wide-ranging consultations. In particular,

substantive guidance was provided by Andrew Cassels, Andrew

Clapham, Sofia Gruskin and Daniel Tarantola. Jenny Cook should also

be acknowledged for background research, input and support.

Additionally, input was provided by Robert Beaglehole, Gian Luca

Burci, Nick Drager, Nathalie Drew, Alison Lakin, Debra Lipson, Craig

Mokhiber, Bill Pigott, Geneviève Pinet, Nicole Valentine, Javier

Velasquez, Simon Walker, and Dan Wikler. Finally, Catherine Browne,

Annette Peters, Dorine Da re-van der Wal and Daryl Somma are

thanked for their support.

© World Health Organization, 2002 All rights reserved. Publications of the World Health Organization can be obtained from Marketing and Dissemination, World Health Organization, 20 Avenue Appia, 1211 Geneva 27, Switzerland (tel: +41 22 791 2476; fax: +41 22 791 4857; email: bookorders@who.int). Requests for permission to reproduce or translate WHO publications - whether for sale or for non-commercial distribution - should be addressed to Publications, at the above address (fax: +41 22 791 4806; email: permissions@who.int). The designations employed and the presentation of the material in this publication do not imply the expression of any opinion whatsoever on the part of the World Health Organization concerning the legal status of any country, territory, city or area or of its authorities, or concerning the delimitation of its frontiers or boundaries. Dotted lines on maps represent approximate border lines for which there may not yet be full agreement. The mention of specific companies or of certain manufacturers’ products does not imply that they are endorsed or recommended by the World Health Organization in preference to others of a similar nature that are not mentioned. Errors and omissions excepted, the names of proprietary products are distinguished by initial capital letters. The World Health Organization does not warrant that the information contained in this publication is complete and correct and shall not be liable for any damages incurred as a result of its use.

Typeset and printed in France. Cover photo: WHO/PAHO - Designer: François Jarriau/Kaolis.

WHO Library Cataloguing-in-Publication Data Questions and answers on health and human rights. (Health and human rights publication series) 1.Human rights - 2. Public health - 3.Health policy - 4.International law - 5.Guidelines - I. World Health Organization - II. Series ISBN 92 4 154569 0 (NLM classification: WA 30 ) ISSN 1684-

“It is my aspiration that health will finally

be seen not as a blessing to be wished for,

but as a human right to be fought for.”

United Nations Secretary General, Kofi Annan

T

he enjoyment of the highest attainable standard of health as a fundamental right of every human being was enshrined in WHOís Constitution over fifty years ago. In our daily work, WHO is striving to make this right a reality for everyone, paying particular attention to the poorest and most vulnerable.

The human rights discourse provides us with an inspirational framework as well as a useful guide for analysis and action. The United Nations human rights mechanisms provide important avenues towards increasing accountability for health.

Attention to human rights is growing worldwide. WHO is actively engaged in increasing its understanding of human rights in relation to health. We are learning from other United Nations agencies, the international community, and other stakeholders.

It is in this context that WHO has launched the Health and Human Rights Publication Series. We have chosen 25 Questions and Answers as the first in this series, suggesting answers to key questions which explore the linkages between different aspects of health and human rights.

I hope this Q & A will provide guidance to a broad audience interested in the relationship between health and human rights.

Gro Harlem Brundtland Geneva July 2002

Foreword

© WHO

Q.8 How can poor countries with resource limitations be held to the same human rights

• Abbreviations and Acronyms
• Section 1: Health and Human Rights Norms and Standards
• Q.1 What are human rights?
• Q.2 How are human rights enshrined in international law?
• Q.3 What is the link between health and human rights?
• Q.4 What is meant by ìthe right to healthî?
• Q.5 How does the principle of freedom from discrimination relate to health?
• Q.6 What international human rights instruments set out governmental commitments?
• Q.7 What international monitoring mechanisms exist for human rights?
  • standards as rich countries?
• Q.9 Is there, under human rights law, an obligation of international cooperation?
• Q.10 What are governmental human rights obligations in relation to other actors in society?
• Section 2: Integrating Human Rights in Health
• Q.11 What is meant by a rights-based approach to health?
• Q.12. What is the value-added of human rights in public health?
  • of certain human rights? Q.13. What happens if the protection of public health necessitates the restriction
• Q.14 What implications could human rights have for evidence-based health information?
• Q.15 How can human rights support work to strengthen health systems?
• Q.16 What is the relationship between health legislation and human rights law?
• Q.17 How do human rights apply to situational analyses of health in countries?
• Section 3: Health and Human Rights in a Broader Context
• Q.18 How do ethics relate to human rights?
• Q.19 How do human rights principles relate to equity?
• Q.20 How do health and human rights principles apply to poverty reduction?
• Q.21 How does globalization affect the promotion and protection of human rights?
• Q.22 How does international human rights law influence international trade law?
• Q.23 What is meant by a rights-based approach to development?
  • of health assistance? Q.24 How do human rights law, refugee law and humanitarian law interact with the provision
• Q.25 How does human rights relate to health development work in countries?
• Annex I: Legal Instruments
• Annex II: United Nations Human Rights Organizational Structure

ACC Administrative Committee on Coordination

CAT Convention against Torture and Other Cruel, Inhuman or Degrading Treatment

or Punishment (1984)

CCA Common Country Assessment

CCPOQ Consultative Committee on Programme and Operational Questions

CDF Comprehensive Development Framework

CEDAW Convention on the Elimination of All Forms of Discrimination Against Women

CERD International Convention on the Elimination of All Forms of Racial Discrimination

CRC Convention on the Rights of the Child (1989)

ECOSOC Economic and Social Council

IACHR Inter-American Commission on Human Rights

ICCPR International Covenant on Civil and Political Rights (1966) and its two Protocols

(1966 and 1989)

ICESCR International Covenant on Economic, Social and Cultural Rights (1966)

ILO International Labour Organisation

IMF International Monetary Fund

NGO Non-Governmental Organization

OHCHR United Nations Office of the High Commissioner for Human Rights

PAHO Pan-American Health Organization

PRSP Poverty Reduction Strategy Paper

UN United Nations

TRIPS Trade Related Aspects of Intellectual Property Rights

UDHR Universal Declaration of Human Rights (1948)

UNDP United Nations Development Programme

UNDAF United Nations Development Assistance Framework

UNGASS United Nations General Assembly Special Session

UNICEF United Nations Childrenís Fund

WANAHR World Alliance for Nutrition and Human Rights

WHO World Health Organization

WTO World Trade Organization

Abbreviations and Acronyms

ìIt was never the people who complained of the universality of human rights, nor did the people consider human rights as a Western or Northern imposition. It was often their leaders who did so.î

United Nations Secretary-General, Kofi Annan

Q.3 What is the link between health and human rights?

There are complex linkages between health and human rights: ï Violations or lack of attention to human rights can have serious health conse- quences; (6) ï Health policies and programmes can pro- mote or violate human rights in the ways they are designed or implemented; ï Vulnerability and the impact of ill health can be reduced by taking steps to respect, protect and fulfil human rights.

The normative content of each right is fully articulated in human rights instruments. In relation to the right to health and freedom from discrimination, the normative content is out- lined in Questions 4 and 5, respectively. Exam- ples of the language used in human rights instruments to articulate the normative content of some of the other key human rights relevant to health follows:

ï Torture: ìNo one shall be subjected to torture or to cruel, inhuman or degrading treatment or punishment. In particular, no one shall be subjected without his free consent to medical or scientific experimentation.î (7) ï Violence against children: îAll appropriate legislative, administrative, social and educa- tional measures to protect the child from all forms of physical or mental violence, injury or abuse, neglect or negligent treatment, mal- treatment or exploitation, including sexual abuse...î shall be taken. (8) ï Harmful traditional practices: ìEffective and appropriate measures with a view to abolish- ing traditional practices prejudicial to the health of childrenî shall be taken. (9) ï Participation: The right to ìÖactive, free and meaningful participation.î (10)

(6) Mann J, Gostin L, Gruskin S, Brennan T,Lazzarini Z, and Fineberg HV, “Health and HumanRights,” Health and Human Rights: An InternationalJournal, Vol. 1, No. 1, 1994. (7) Article 7, ICCPR. The prohibition of torture is also articulated in otherhuman rights instruments, including the CAT andarticle 37 of the CRC. (8) Article 19, CRC. The prohibition of violenceagainst women is also articulated in theDeclaration on the Elimination of ViolenceAgainst Women, 1993. (9) Article 24, CRC. The prohibition of harmful traditional practicesagainst women is also articulated in theDeclaration on the Elimination of ViolenceAgainst Women, and General Recommendation24 on Women and Health of the Committee onthe Elimination of all forms of Discrimination AgainstWomen, 1999. (10) Article 2, Declaration on the Right to Development, 1986.The right to participation is also articulated in otherhuman rights instruments, including article 25 of theICCPR, article 15 of the ICESCR, article 5 of CERD,articles 7, 8, 13 and 14 of CEDAW, and articles 3,9 and 12 of the CRC.

Examples of the links between Health and Human Rights Examples of the links between Health and Human Rights

ï Information: ìFreedom to seek, receive and impart information and ideas of all kinds.î (11) ï Privacy: ìNo one shall be subjected to arbitrary or unlawful interference with his privacy...î (12) ï Scientific progress: The right of everyone to enjoy the benefits of scientific progress and its applications. (13) ï Education: The right to education, (14)^ includ- ing access to education in support of basic knowledge of child health and nutrition, the advantages of breast-feeding, hygiene and environmental sanitation and the prevention of accidents. (15) ï Food and nutrition: ìThe right of everyone to adequate food and the fundamental right of everyone to be free from hungerÖî (16) ï Standard of living: Everyone has the right to an adequate standard of living, including ade- quate food, clothing, housing, and medical care and necessary social services. (17) ï Right to social security: The right of everyone to social security, including social insurance. (18)

Q.4 What is meant by “the right to health”?

ìThe right to health does not mean the right to be healthy, nor does it mean that poor governments must put in place expensive health services for which they have no resources. But it does require governments and public authorities to put in place policies and action plans which will lead to available and accessible health care for all in the shortest possible time. To ensure that this happens is the challenge facing both the human rights community and public health professionals.î

United Nations High Commissioner for Human Rights, Mary Robinson

The right to the highest attainable standard of health (referred to as ìthe right to healthî) was first reflected in the WHO Constitution (1946) (20) and then reiterated in the 1978 Declaration of Alma Ata and in the World Health Declaration adopted by the World Health Assembly in

1998. (21)^ It has been firmly endorsed in a wide range of international and regional human rights instruments. (22)

The right to the highest attainable standard of health in international human rights law is a claim to a set of social arrangements ñ norms, institutions, laws, an enabling environment ñ that can best secure the enjoyment of this right. The most authoritative interpretation of the right to health is outlined in Article 12 of the ICESCR, which has been ratified by 145 countries (as of May 2002). In May 2000, the Committee on Eco- nomic, Social and Cultural Rights, which moni- tors the Covenant, adopted a General Comment on the right to health. (23)^ General Comments serve to clarify the nature and content of indi- vidual rights and States Partiesí (those states that have ratified) obligations. The General Comment recognized that the right to health is closely relat- ed to and dependent upon the realization of other human rights, including the right to food, housing, work, education, participation, the enjoyment of the benefits of scientific progress and its applications, life, non-discrimination, equality, the prohibition against torture, privacy, access to information, and the freedoms of asso- ciation, assembly and movement.

(11) Article 19, ICCPR. The right to informationis also articulated in other human rights instruments,including articles 10, 14 and 16 of the CEDAW,and articles 13, 17 and 24 of the CRC. (12) Article 17, ICCPR. The right to privacy is also articulated in other humanrights instruments, including article 16of CEDAW, and article 40 of the CRC. (13) Article 15, ICESCR. (14) Article 13, ICESCR. The right to education is also articulated in otherhuman rights instruments, including article 5 of CERD,articles 10 and 16 of CEDAW, and articles 19, 24, 28and 33 of the CRC. (15) Article 24, CRC. (16) Article 11, ICESCR. The right to food is also articulated in other humanrights instruments, including article 12of CEDAW, and article 27 of the CRC. (17) Article 25 UDHR and article 11 ICESCR. (18) Article 9, ICESCR. The right to social security is also articulated in otherhuman rights instruments, including article 5 of CERD,articles 11, 13 and 14 of CEDAW, and article 26of the CRC. (19) 18 February 1992, UN General Assembly Resolution on the Protectionof Persons with Mental Illness and the Improvementof Mental Health Care, Principle 1 (A/RES/46). (20) (^) Basic Documents , Forty-third Edition, Geneva,World Health Organization,

2001. The Constitutionwas adopted by the International HealthConference in 1946. (21) WHA51.7, annex.

Persons suffering from mental disabilities are particularly vulnerable to discrimination. Not only does this impact negatively on their ability to access appropriate treatment and care but the stigma associated with mental illness means that they experience discrimi- nation in many other aspects of their lives, affecting their rights to employment, ade- quate housing, education, etc. The United Nations Resolution on the Protec- tion of Persons with Mental Illness, prohibits dis- crimination on the grounds of mental illness.(19)

© (^) Grégoire Ahongbonon

Q.5 How does the principle of freedom from discrimination relate to health?

Vulnerable and marginalized groups in soci- eties tend to bear an undue proportion of health problems. Overt or implicit discrimination vio- lates a fundamental human rights principle and often lies at the root of poor health status. In practice, discrimination can manifest itself in inadequately targeted health programmes and restricted access to health services.

The prohibition of discrimination does not mean that differences should not be acknowledged, only that different treatment ñ and the failure to treat equal cases equally ñ must be based on objective and reasonable criteria intended to rectify imbalances within a society.

In relation to health and health-care the grounds for non-discrimination have evolved and can now be summarized as proscribing ìany discrimination in access to health care and the 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, 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.î (32)

ìPublic health practice is heavily burdened by the problem of inadvertent discrimination. For example, outreach activities may ëassumeí that all popu- lations are reached equally by a single, dominant-language message on television; or analysis ëforgetsí to include health problems uniquely relevant to certain groups, like breast cancer or sickle cell disease; or a problem ëignoresí the actual response capability of different popu- lation groups, as when lead poisoning warnings are given without concern for financial ability to ensure lead abatement. Indeed, inadvertent discrimination is so prevalent that all public health policies and programmes should be considered discriminatory until proven otherwise, placing the burden on public health to affirm and ensure its respect for human rights.î

Jonathan Mann(33)

(28) Health facilities, goods and servicesmust be affordable for all. Payment for health-careservices, as well as services related to theunderlying determinants of health, has to be basedon the principle of equity, ensuring that theseservices, whether privately or publicly provided, areaffordable for all. (29) Accessibility includes the right to seek, receive and impart informationand ideas concerning health issues. However,accessibility of information should not impair the rightto have personal health data treated withconfidentiality. (30) This requires, inter alia , skilled medical personnel, scientificallyapproved and unexpired drugs and hospitalequipment, safe and potable water, andadequate sanitation.

(31) Declaration on the Elimination of Violence against Women,85th plenary meeting, 20 December 1993,(A/RES/48/104), preamble. (32) General Comment 14. (33) The Hastings Center Report, Volume 27, No.3, May-June 1997, p. 9.

© (^) WHO/PAHO

Discrimination manifests itself in a com- plex variety of ways, which may directly or indirectly, impact upon health. For example, the Declaration on the Elimination of Violence against Women recognizes the link between violence against women and the historically unequal power relations between men and women.(31)

© (^) WHO / P. Virot

Q.6 What international human rights instruments set out governmental commitments?

Governments decide freely whether or not to become parties to a human rights treaty. Once this decision is made, however, there is a com- mitment to act in accordance with the provi- sions of the treaty concerned. The key interna- tional human rights treaties, the International Covenant on Economic, Social and Cultural Rights (ICESCR, 1966) and the International Covenant on Civil and Political Rights (ICCPR,

1966. further elaborate the content of the rights set out in the Universal Declaration of Human Rights (UDHR, 1948), and contain legally bind- ing obligations for the governments that become parties to them. Together these docu- ments are often called the ìInternational Bill of Human Rights.î

Building upon these core documents, other international human rights treaties have focused on either specific groups or categories of populations, such as racial minorities, (34) women (35)^ and children, (36)^ or on specific issues, such as torture. (37)^ In considering a normative framework of human rights applicable to health, human rights provisions must be con- sidered in their totality.

The Declarations and Programmes of Action from United Nations world conferences such as the World Conference on Human Rights (Vien- na, 1993), the International Conference on Pop- ulation and Development (Cairo, 1994), the World Summit for Social Development (Copen- hagen, 1995), the Fourth World Conference on Women (Beijing, 1995) and the World Conference Against Racism, Racial Discrimination, Xeno- phobia and Related Intolerance (Durban, 2001), provide guidance on some of the policy impli- cations of meeting governmentís human rights obligations.

Q.7 What international monitoring mechanisms exist for human rights?

The implementation of the core human rights treaties is monitored by committees of inde- pendent experts known as treaty monitoring bodies, created under the auspices of and serviced by the United Nations. Each of the six major human rights treaties has its own monitoring body which meets regularly to review State Party reports and to engage in a ìconstructive dialogueî with governments on how to live up to their human rights obli- gations. Based on the principle of transparen- cy, States are required to submit their progress reports to the treaty bodies, and to make them widely available to their own populations. Thus reports can play an important catalytic role, contributing to the promotion of nation- al debate on human rights issues, encourag- ing the engagement and participation of civil society, and generally fostering a process of public scrutiny of governmental policies. At the end of the session, the treaty body makes concluding observations which include rec- ommendations on how the government can improve its human rights record. Specialized agencies such as WHO can play an important role in providing relevant health information to facilitate the dialogue between the State Party and the treaty monitoring body.

(34) International Convention on theElimination of All Forms of Racial Discrimination,1963. (35) Convention on the Elimination of All Forms of Discrimination AgainstWomen, 1979. (36) Convention on the Rights of the Child, 1989. (37) Convention Against Torture and other Cruel, Inhuman or DegradingTreatment or Punishment,

Every country in the world is now party to at least one human rights treaty that addresses health-related rights, including the right to health, and a number of rights related to conditions necessary for health.

Q.8 How can poor countries with resource limitations be held to the same human rights standards as rich countries?

Steps towards the full realization of rights must be deliberate, concrete and targeted as clearly as possible towards meeting a govern- mentís human rights obligations. (40)^ All appro- priate means, including the adoption of leg- islative measures and the provision of judicial remedies as well as administrative, financial, educational and social measures, must be used in this regard. This neither requires nor precludes any particular form of government or economic system being used as the vehicle for the steps in question.

The principle of progressive realization of human rights (41)^ imposes an obligation to move as expe- ditiously and effectively as possible towards that goal. It is therefore relevant to both poorer and wealthier countries, as it acknowledges the constraints due to the limits of available resources, but requires all countries to show constant progress in moving towards full

realization of rights. Any deliberately retro- gressive measures require the most careful consideration and need to be fully justified by reference to the totality of the rights provided for in the human rights treaty concerned and in the context of the full use of the maximum avai- lable resources. In this context, it is important to distinguish the inability from the unwillingness of a State Party to comply with its obligations. During the reporting process the State Party and the Committee identify indicators and national benchmarks to provide realistic targets to be achieved during the next reporting period.

Q.9 Is there, under human rights law, an obligation of international cooperation?

Malaria, HIV/AIDS and tuberculosis are examples of diseases which disproportionate- ly affect the worldís poorest populations, placing a tremendous burden on the economies of developing countries. In this regard, it should be noted that although the human rights paradigm concerns obligations of States with respect to individuals and groups within their own jurisdictions, where the human rights instruments refer to the Stateís resources, they include international assistance and cooperation.

In accordance with Articles 55 and 56 of the Charter of the United Nations, international cooperation for development and the reali- zation of human rights is an obligation of all States. Similarly, the Declaration on the Right to Development (42)^ emphasizes an active programme of international assistance and cooperation based on sovereign equality, interdependence, and mutual interest. (43)

In addition, the ICESCR requires each State who is party to the Covenant to ìtake steps, individually and through international assistance and cooperation, especially

(40) ICESCR General Comment 3 on the natureof States Parties obligations adopted by the Committee onEconomic, Social and Cultural Rights, FifthSession 1990 (E/1991/23). (41) ICESCR, Article 2 (1). (42) Adopted by the General Assemblyin its resolution 41/ of 4 December 1986. (43) Declaration on the Right to Development,Article 3, adopted by General Assemblyresolution 41/ of 4 December 1986.

© (^) WHO/PAHO

economic and technical, to the maximum of its available resources, with a view to achieving progressively the full realization of the rights recognized [herein].î (44)

In this spirit, ìthe framework of international cooperationî is referred to, which acknowl- edges, for instance, that the needs of develop- ing countries should be taken into conside- ration in the area of health. The role of specialized agencies is recognized in human rights treaties in this context. For example, the ICESCR stresses that ìinternational action for the achievement of the rights ... includes such methods as ... furnishing of technical assis- tance and the holding of regional meetings and technical meetings for the purpose of consultation and study organized in conjunc- tion with the Governments concerned.î (45)

Q.10 What are governmental human rights obligations in relation to other actors in society?

As government roles and responsibilities include increased reliance on non-state actors (health insurance companies, etc.), govern- mental health systems must ensure the existence of social safety nets and other

mechanisms to ensure that vulnerable popu- lation groups have access to the services and structures they need.

The obligation of the State to protect human rights means that governments are responsible for ensuring that non-state actors act in con- formity with human rights law within their jurisdiction. Governments are obliged to ensure that third parties conform with human rights standards by adopting legislation, poli- cies and other measures to assure adequate access to health care, quality information, etc., and an accessible means of redress if indivi- duals are denied access to these goods and services. An example of this is the obligation of governments to ensure the regulation of the tobacco industry in order to protect its popu- lation against infringements of the right to health, the right to information, and other relevant human rights provisions.

In the corporate and NGO contexts, (46)^ there is a proliferation of voluntary codes which reflect international human rights norms and stan- dards. Increasing attention to the human rights implications of work in the private sector has resulted in human rights being placed higher on the business agenda, with several busi- nesses beginning to incorporate concern for human rights into their daily operations. (47)

(44) ICESCR, Article 2. (45) ICESCR, Article 23. (46) In the area of humanitarian assistance, for example, the SphereProject’s (draft) Charter on Minimum HumanitarianStandards in Disaster Relief provides acomprehensive catalogue of technical standards forNGO and other international relief workerson matters such as food, nutrition, water andsanitation, based upon international human rightslaw. (47) http: // www. unglobalcompact.org.

© (^) WHO/PAHO

✓ Disaggregating health data to detect under- lying discrimination.

✓Ensuring free, meaningful, and effective participation of beneficiaries of health devel- opment policies or programmes in decision- making processes which affect them.

✓Promoting and protecting the right to educa- tion and the right to seek, receive and impart information and ideas concerning health issues. However, the right to information should not impair the right to privacy , which means that personal health data should be treated with confidentiality.

✓Only limiting the exercise or enjoyment of a right by a health policy or programme as a last resort, and only considering this legiti- mate if each of the provisions reflected in the Siracusa principles is met. (51)^ (See Question 13).

✓Juxtaposing the human rights implications of any health legislation, policy or programme with the desired public health objectives and ensuring the optimal balance between good public health outcomes and the promotion and protection of human rights.

✓Making explicit linkages to international human rights norms and standards to high- light how human rights apply and relate to a health policy, programme or legislation.

✓Making the attainment of the right to the highest attainable standard of health the explicit ultimate aim of activities, which have as their objective the enhancement of health.

✓Articulating the concrete government obliga- tions to respect, protect and fulfil human rights.

✓Identifying benchmarks and indicators to ensure monitoring of the progressive realiza- tion of rights in the field of health.

✓Increasing transparency in, and accounta- bility for, health as a key consideration at all stages of programme development.

✓Incorporating safeguards to protect against majoritarian threats upon minorities, migrants and other domestically ìunpopu- larî groups, in order to address power imbal- ances. For example, by incorporating redress mechanisms in case of impingements on health-related rights.

(50) Eds. Mann J, Gruskin S, Grodin M, Annas G, Health andHuman Rights: A Reader, (Routledge, 1999),Introduction, para. 4. (51) The Siracusa principles on the limitation and derogation provisionsin the international covenant on civil andpolitical rights. UN Doc. E/CN.4/1985/4, Annex.

Possible “ingredients” in a rights-based approach to health:

R ight to health I nformation G ender H uman dignity T ransparency S iracusa principles

B enchmarks and indicators A ccountability S afeguards E quality and freedom from discrimination D issaggregation

A ttention to vulnerable groups P articipation P rivacy R ight to education O ptimal balance between public health goals and protection of human rights A ccessibility C oncrete government obligations H uman rights expressly linked

It has been demonstrated that “respect for human rights in the context of HIV/AIDS, mental illness, and physical disability leads to markedly better prevention and treat- ment. Respect for the dignity and privacy of individuals can facilitate more sensitive and humane care. Stigmatization and discrimina- tion thwart medical and public health efforts to heal people with disease or disability”. (50)

© (^) WHO/PAHO

Q.12 What is the value-added of human rights in public health?

Overall, human rights may benefit work in the area of public health by providing: ï Explicit recognition of the highest attainable standard of health as a ìhuman rightî (as opposed to a good or commodity with a char- itable construct); ï A tool to enhance health outcomes by using a human rights approach to designing, imple- menting and evaluating health policies and programmes;

ï An ìempoweringî strategy for health which includes vulnerable and marginalized groups engaged as meaningful and active participants; ï A useful framework, vocabulary and form of guidance to identify, analyze and respond to the underlying determinants of health; ï A standard against which to assess the per- formance of governments in health; ï Enhanced governmental accountability for health; ï A powerful authoritative basis for advocacy and cooperation with governments; interna- tional organizations; international financial institutions; and in the building of partner- ships with relevant actors of civil society; ï Existing international mechanisms to monitor the realization of health as a human right; (52) ï Accepted international norms and standards (e.g. definitions of concepts and population groups); ï Consistent guidance to states as human rights cross-cut all United Nations activities; ï Increased scope of analysis and range of part- ners in countries.

Q.13 What happens if the protection of public health necessitates the restriction of certain human rights?

There are a number of human rights that can- not be restricted in any circumstance such as freedom from torture and slavery, and freedom of thought, conscience and religion. Limitation and derogation clauses in the international human rights instruments recognize the need to limit human rights at certain times.

Public health is sometimes used by states as a ground for limiting the exercise of human rights.

A key factor in determining if the necessary protections exist when rights are restricted is that each one of the five criterion of the Siracusa Principles must be met. Even in circumstances where limitations on grounds of protecting public health are basically permitted, they should be of limited duration and subject to review.

Interference with freedom of movement when instituting quarantine or isolation for a serious communicable disease ó for example, Ebola fever, syphilis, typhoid or untreated tuber- (52) See Question 7. culosis ó are examples of restrictions on rights

The Siracusa Principles

Only as a last resort can human rights be interfered with to achieve a public health goal. Such interference can only be justified when all of the narrowly defined circumstan- ces set out in human rights law, known as the Siracusa Principles, are met:

• The restriction is provided for and carried out in accordance with the law;
• The restriction is in the interest of a legiti- mate objective of general interest;
• The restriction is strictly necessary in a democratic society to achieve the objective;
• There are no less intrusive and restrictive means available to reach the same objective; and
• The restriction is not drafted or imposed arbitrarily, i.e. in an unreasonable or other- wise discriminatory manner.

© (^) WHO