Pillars for Progress on the Right to Health: Harnessing the Potential of Human Rights through a Framework Convention on Global Health

Chapter 15

Pillars for Progress on the Right to Health: Harnessing the Potential of Human Rights through a Framework Convention on Global Health

Eric A. Friedman and Lawrence O. Gostin


Each year, nearly 20 million people die—one in three global deaths—as a result of inequities between richer countries and the rest of the world and within low- and mid-income countries.1 A child entering the world today in sub-Saharan Africa has a life expectancy more than a quarter century shorter than a child born in a wealthy country.2 Women in the poorest quintile in Southern Asia are five times less likely to be attended by a skilled birth attendant than those in the wealthiest quintile.3 The comparable disparity between wealthier and poorer women in West and Central Africa is three-and-a-half times.4

These persisting inequalities live alongside a far more promising reality for global health. The past several decades have demonstrated that great progress is possible. Child mortality has fallen from 16 million in 1970 to 7.6 million in 2010.5 Maternal mortality has fallen from more than 500,000 maternal deaths every year to approximately 287,000 in 2010.6 The number of people with HIV/AIDS in sub-Saharan Africa on antiretroviral medication increased from about 50,000 in 2000 to 5,064,000 by the end of 2010.7 In Brazil, the inequalities between rich and poor women in their access to skilled birth attendants that mark so much of the world have been close to eliminated, with near universal coverage of skilled birth attendants.8

How can the international community bring the first tragic reality in line with the second, far more hopeful, reality? We believe the right to the highest attainable standard of physical and mental health can be a force to enable even the world’s poorest people to benefit from the immense health improvements that we know to be possible—interventions that are proven and affordable.9 Increasingly, civil society and communities, courts and constitutional assemblies, are turning to the right to health as tool for developing a more just society. The six new national constitutions adopted in 2010 all codified the right to health.10 Court decisions based on the right to health are burgeoning. Social movements are turning to the right to health in their advocacy. The UN General Assembly has recognized the right to clean drinking water and sanitation—two of the underlying determinants of health.11 The days when a government could argue that the right to health was simply aspirational and unenforceable seem distant.

Yet none of this progress has fundamentally changed the gaping inequalities between rich and poor and other marginalized and disadvantaged populations. How, then, is it possible to accelerate and consolidate the progress already made in improving health and closing health inequalities? Here we propose a four-part approach to accelerating progress towards fulfilling the right to health and reducing both global and domestic health inequities: 1) incorporating right-to-health obligations and principles into national laws and policies; 2) using creative strategies to increase the impact of national right-to-health litigation; 3) empowering communities to claim their right to health and building civil society’s health and human rights advocacy capacity, and; 4) bringing the right to health to the center of global governance for health.

These facets will be mutually reinforcing. Empowered communities are more likely to take advantage of the potential for litigation to enforce national policies, while global governance structures could bolster support for public right-to-health education and establish policy standards. A global health agreement—a Framework Convention on Global Health (FCGH)—could help construct these pillars.12 A civil society-led international coalition, the Joint Action and Learning Initiative on National and Global Responsibilities for Health (JALI), is steering a process to develop just such a treaty.13 The FCGH would aim to dramatically reduce health inequities and establish a post-Millennium Development Goals (MDGs) global health agenda rooted in the right to health, placing such right-to-health principles as equality, accountability, and empowerment—as well as clearly defined responsibilities—at the center of this agenda in ways that the MDGs did not. The treaty would further elaborate on the right to health, from clarifying and codifying the interpretation of this right by the Committee on Economic, Social, and Cultural Rights to setting clearer standards for the progressive realization and maximum of available resource obligations in the International Covenant on Economic, Social, and Cultural Rights. The FCGH would also establish norms, targets, mechanisms, processes, and specific obligations that would give further life to central principles, such as accountability, participation, non-discrimination, and equality, while incorporating approaches to ensure proper prioritization of health, and of the right to health in other sectors such as trade, investment, and the environment.

In the spirit of the principles that comprise the right to health itself, JALI intends the FCGH to be developed through an inclusive and consultative process that amplifies the voices of the people who suffer most from national and global health inequities. To help inform this dialogue, we explore this four-pronged framework to better realize the right to health and offer ideas on how an FCGH could advance each pillar.

Incorporating the Right to Health into National Law and Policy

National legal and policy reform should begin at the top, incorporating the right to health into the constitution. A constitutional right to health does not guarantee that the government will respect the right or that health outcomes will improve. However, it does provide a foundation for action, whether catalyzing legal and policy reforms or unlocking the potential for litigation to enforce this right where other routes (e.g., constitutional right to life, judicially enforceable international treaties, and legislation) are unavailable or insufficient.

Incorporating the right to health does not require wholesale constitutional reform, but rather can be incorporated as a separate constitutional amendment. Civil society campaigns could valuably direct national attention to this and other socioeconomic rights. Right-to-health provisions in other constitutions and information on their implementation should be readily available to assist advocates in determining the specific amendment language that they seek, and to build public and political understanding of what such a right would entail and its possible benefits. This is not presently the case.14

The World Health Organization (WHO), civil society, and academics could establish an online, dynamic, regularly updated list of all right-to-health constitutional provisions, and analysis of how these provisions have been interpreted and implemented. This could help expand the scope of the possible, as advocates see how constitutions like Kenya’s incorporate rights to such fundamental human needs as sufficient food, water, sanitation, and adequate housing; how Brazil’s constitution demands universal and equal access to health care and establishes a formula for minimum government health spending on public health activities and services; and how Bolivia’s constitution guarantees participation of the population in the decision-making processes of the public health system.15

An FCGH could aid in these efforts, requiring that states make the right to health justiciable. In countries that already have the right to health in their constitutions, or in which the FCGH (or other treaties with the right to health to which they are party) is self-executing, the right to health would already be justiciable. Elsewhere, states might meet this obligation by passing legislation to domesticate the FCGH—or by enacting a constitutional amendment. This requirement would be comparable to provisions in the International Covenant on Civil and Political Rights obliging parties to develop the possibility of a judicial remedy, and to enforce that remedy for violations of treaty rights.16

Laws, regulations, and policies should incorporate principles of equity, participation, and accountability. Comprehensive approaches to health equity will include non-discrimination legislation with effective sanctions, disaggregated health data and equity targets for poor and marginalized populations with accompanying strategies and time-bound benchmarks; and equitably distributed funding, health workers, and facilities. Legislation should require that all processes involving health-related decision making engage civil society and community members with standards to ensure that members of marginalized groups are able to fully participate.

Countries could commit through an FCGH to disaggregate health data by sex, rural or urban residence, and other dimensions, and through periodic surveys or other means assess health disparities that may be harming other populations. Health information systems could also be strengthened to capture how health funds are disbursed, both to monitor funding across regions (for example, whether indigenous areas are receiving disproportionately few funds) and to compare actual disbursements with committed funds, which could reveal corruption or other malfeasance. Perhaps within prescribed minimum benchmarks, equity-related targets could be among the targets in an FCGH, or those that the FCGH commits countries to set for themselves. The treaty could commit countries to a multi-faceted approach—addressing a patient bill of rights, pre- and in-service health worker training, structural measures (e.g., infection control and prevention), and effective complaint mechanisms—to reduce health sector stigma and discrimination. It could also establish guidelines for inclusive health decision making at sub-national, national, and international levels.

The FCGH could encourage wealthier countries to fund these measures. It might even establish a right-to-health capacity-building fund to which FCGH parties would contribute, possibly under an agreed formula to ensure that the fund contains at least minimum necessary resources for the full gamut of right to health related capacity-building activities under the FCGH. This could represent a distinct channel of funding within a larger global health funding mechanism.

Accountability requires that people have the opportunity to understand and question government policies and actions, get answers, challenge responses, and obtain redress for rights violations. Transparency is critical for accountability: India’s Right to Information Act of 2005 has proven one of civil society’s most important recent new tools to advance human rights.17 Transparency will also help tackle corruption and protect rights, as will powerful, independent anti-corruption bodies.

Improving domestic accountability would be one of the chief goals of an FCGH. It could require countries to develop, implement, monitor and evaluate, and report back on a strategy to improve health accountability at the community level, such as through functioning village health committees, community scorecards, or community monitoring. The treaty could require and support capacity-building for maternal, newborn, and child mortality audits.18 It could ensure and provide standards for implementing the right to information, akin to India’s law, at the least for health and related sectors. The treaty could also prescribe a multitude of measures to improve transparency in health and related sectors, such as publishing (including on the Internet) all health plans and strategies, including in minority languages; discouraging corruption by requiring health ministry officials to publish their private assets online; in general, using open, transparent, competitive bidding processes for contracts of the ministry of health (and of related ministries, such as water); and informing communities of health funds that they are supposed to receive for local health services.

A right-to-health approach requires adequate funding. Laws could establish minimum funding levels for health, as in Brazil. Governments should use all policy levers to increase funding for health and its determinants. One analysis identified five such levers: 1) the proportion of government expenditure that is health-related; 2) overall government revenue; 3) official development assistance; 4) borrowing (deficit financing); and 5) monetary policy and financial regulation.19 We would add a sixth: ensuring the efficient use of resources. The WHO conservatively estimates that fully 20–40% of the world’s health “spending is consumed in ways that do little to improve people’s health.”20 Changed incentive structures for health providers, strategic health sector purchasing, reduced fragmentation of health financing, and greater focus on health equity are just some of the ways to improve efficiency and meaningfully channel available resources to health.21

Countries should explore innovative approaches to raising revenue, such as taxing unhealthy foods and imposing special levies on large, profitable companies.22 An FCGH might commit countries to implement a minimum number of such approaches, which the treaty could delineate. Beyond establishing domestic and international assistance funding benchmarks, the treaty could state circumstances under which countries are obliged to seek international assistance, owing to domestic resources that are inadequate to meeting their populations’ right to health.

The rights approach to health also demands respect for the central, but often violated, public health principles of developing policies based on evidence and adopting an all-of-government approach in advancing the public’s health. Countries could develop institutions specifically charged with advocating for and coordinating government efforts to incorporate health and human rights into all policies. For instance, Uganda established a right-to-health desk in the health ministry, charged with building capacity among health professionals on the right to health, mainstreaming the right to health in the health sector, and advocating for incorporating right-to-health-based policies in other sectors.23 Parliamentary committees responsible for health or human rights oversight should hold hearings on health and human rights. An FCGH could commit governments to establishing a right-to-health office to coordinate a health—and right to health—in all policies approach, as well as to educate the public on their right to health, promote health worker education on human rights, motivate support for the right to health within the government, and provide or ensure legal assistance for people when their right to health has been violated.24 The treaty could require a comprehensive public health strategy encompassing social determinants of health, and its funding benchmarks could extend beyond health care to address underlying determinants of health.

Codifying the right to health and developing accountability mechanisms will transform sound health policy into enforceable legal requirements. Policies on particular health issues must also integrate human rights standards, such as funding clean needle exchange to reduce HIV transmission among drug users, domesticating the Convention on the Rights of People with Disabilities, and conducting right-to-health assessments.

Health and right-to-health assessments are seeing growing use across a great variety of contexts, from assessing health and health-related policies—such as a gender action plan in Pakistan and maternal health policy in Bangladesh—to projects that might at first glance seem to have little relation to health, such as replacing a bridge.25 They can lead to critical recommendations. The maternal health policy assessment in Bangladesh, using the Health Rights of Women Impact Assessment Instrument, led to recommendations to strengthen sub-district health advisory committees and have health facilities accommodate social and religious practices. The health impact assessment of the bridge included recommendations to minimize risk of injury to pedestrians and bicyclists and to reduce air pollution and other negative health effects of construction.

An FCGH could set minimum standards on when countries should conduct right-to-health assessments of policies outside the health sector that could impact health, and require a right-to-health assessment of the health system itself as a foundation for revising a national health strategy, as well as to assess the impact of health policy changes on the right to health. The treaty could require that countries follow the policy that would most positively affect health or the right to health or, if they do not, to publicly justify the chosen approach and establish processes for affected populations or civil society organizations to challenge the decisions. Beyond right-to-health assessments, an FCGH might even direct countries to implement specific policies, such as permitting syringe exchange.

Beyond the FCGH itself, how to give life to this ambitious agenda? As a foundation, government officials need to understand the right to health. Civil society, academics, and international civil servants all have a role in educating government officials, including parliamentarians, on health and human rights. To enable health in all policies, this education should cover all officials, not only those with an explicit health mandate.

Building Right to Health Capacity

A right-to-health capacity-building fund in an FCGH could support these efforts. WHO could train and designate a human rights point person in each of its country offices. Such point people will need to closely collaborate with partners to ensure that their impact extends beyond the health ministry.

Policymakers will need to be convinced of the link between the right to health and improved health outcomes. For example, they need to be convinced that public participation in health decision making and community-based accountability structures indeed impacts health services and health outcomes. More research is needed, but evidence is emerging.26

Organizations supporting these types of mechanisms should carefully monitor and evaluate their impact, and explore possibilities for linking with researchers to develop rigorous evidence of success. Foundations should fund this research and the community monitoring efforts themselves. The health impacts of these empowering community mechanisms can be every bit as great as many of the most powerful biological medicines.

Whether established through an FCGH or an independent effort, a global database collecting information on these initiatives could both help countries and communities design the most effective mechanisms and convince policymakers of their importance. If linked to the treaty, it could encourage states to submit examples of such approaches to the FCGH Secretariat to feed into the database. This should increase uptake of these practices, strengthening accountability to the right to health and thus improving compliance with the FCGH. As part of an FCGH monitoring and evaluation process, states might even be required to report on measures that they are taking—including by making use of the best available evidence, including through the database—to adopt measures that will enhance accountability to the right to health from the community to national levels.

Leadership is essential. Right-to-health proponents can identify and nurture respected officials in government to chart the way. And they can advocate for government positions that are mandated to pursue the right to health, like Uganda’s right-to-health desk, and for dynamic individuals to fill such positions.

Motivated policymakers will need the means to effectively implement the right to health. A growing set of health and human rights tools can support this capacity (see Table 15.1), and assure policymakers that FCGH mandates, such as right-to-health assessments, are feasible. The human rights community can create more advanced tools, such as further practical guidance to policymakers in specific health areas and right-to-health issues.

Table 15.1 Health and human rights tools

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FCGH Implementation

Health, human rights, and impact assessments

Human Rights Impact Assessment for the Formation and Evaluation of Public Health Policies (Lawrence O. Gostin and Jonathan M.Mann, 1994)27

Provides questions to guide public health policies that may burden human rights

These tools will help implement an FCGH mandate on health and human rights assessments, including to incorporate the right to health in health strategies and interventions, and to ensure that policies and projects beyond the health sector that impact health are consistent with the right to health.

Health Rights of Women Assessment Instrument (Aim for Human Rights, 2010)28

Instrument to assess impact of policies on women’s health rights and develop action plans to better realize women’s health rights

The Assessment of the Right to Health and Health Care at the Country Level: A People’s Health Movement Guide (People’s Health Movement, 2006)29

Guide to assess government implementation of right to health obligations and develop recommendations to address violations

Some of these tools address specific areas that health strategies should address, including the health work force and reducing health sector discrimination.

Health Impact Assessment (World Health Organization)30

Tools and guidance documents to determine how policies in different sectors will affect the public’s health and the health of vulnerable groups

Many can be used proactively to design health strategies and polices and activities in other sectors that protect and promote the right to health. Civil society can use them to evaluate government implementation of the right to health. The first tool is slightly different, aimed at minimizing the possible burden of public health strategies on other human rights.

Human Rights Impact Assessment Tools and Instruments (Human Rights Impact Resource Center)31

Various tools to assess the impact of policies on human rights, including rights to health, food, and housing

Incorporating the Right to Health into Health Workforce Plans: Key Considerations (Health Workforce Advocacy Initiative, 2009)32