The World Health Organization, the evolution of human rights, and the failure to achieve Health for All
The World Health Organization, the evolution of human rights, and the failure to achieve Health for All
Benjamin Mason Meier
Human rights are heralded as a modern guide for public health. Cited by health advocates throughout the world, the human right to health – proclaimed seminally in the Universal Declaration of Human Rights (UDHR) and codified in the International Covenant of Economic, Social and Cultural Rights (ICESCR) as ‘the right of everyone to the enjoyment of the highest attainable standard of physical and mental health’ – has become a cornerstone of global health governance. As a normative framework for international public health, the right to health is seen as foundational to the contemporary policies and programs of the World Health Organization (WHO).
It was not always so.
This chapter traces the political history leading up to WHO’s invocation of human rights for the public’s health. With both the UDHR and WHO coming into existence in 1948, there was great initial promise that these two institutions would complement each other, with WHO – as a specialised agency of the United Nations (UN) – upholding human rights in all its activities. In spite of this promise, and early WHO efforts to advance a human rights basis for its work, WHO policy intentionally neglected the right to health during crucial years of its evolution, projecting itself as a technical organisation above ‘legal rights’.
Where WHO neglected human rights – out of political expediency, legal incapacity and medical supremacy – it did so at its peril. After 25 years of shunning the development of the right to health, WHO came to see these legal principles as a political foundation upon which to frame its ‘Health for All’ strategy under the Declaration of Alma-Ata. But it was too late: WHO’s constrained role in developing international human rights for health – specifically the transition from Article 25 of the UDHR to Article 12 of the ICESCR – had already set into motion a course for the right to health that would prove fatal to the goals of primary healthcare laid out in the Declaration of Alma-Ata (see Table 8.1).
This chapter evaluates the evolution of legal obligations for a human right to health, focusing on WHO’s role in developing these obligations. Scholars have reached contradictory conclusions as to WHO’s role in the advancement and
Declaration of Alma-Ata (1978)
(1) Everyone has the right to a standard of living adequate for the health and wellbeing of himself and of his family, including food, clothing, housing and medical care and necessary social services, and the right to security in the event of unemployment, sickness, disability, widowhood, old age or other lack of livelihood in circumstances beyond his control.
1. The States Parties to the present Covenant recognize the right of everyone to the highest attainable standard of physical and mental health.
2. The steps to be taken by the States Parties to the present Covenant to achieve the full realization of the right shall include those necessary for:
(a) The provision for the reduction of the stillbirth-rate and of infant mortality and for the healthy development of the child;
(b) The improvement of all aspects of environmental and industrial hygiene;
(c) The prevention, treatment and control of epidemic, endemic, occupational and other diseases;
(d) The creation of conditions which would assure to all medical service and medical attention in the event of sickness.
I. The Conference strongly reaffirms that health, which is a state of complete physical, mental and social wellbeing, and not merely the absence of disease or infirmity, is a fundamental human right and that the attainment of the highest possible level of health is a most important world-wide social goal whose realization requires the action of many other social and economic sectors in addition to the health sector.
V. Governments have a responsibility for the health of their people which can be fulfilled only by the provision of adequate health and social measures. A main social target of governments, international organizations and the whole world community in the coming decades should be the attainment by all peoples of the world by the year 2000 of a level of health that will permit them to lead a socially and economically productive life. Primary health care is the key to attaining this target as part of development in the spirit of social justice.
implementation of human rights – finding either that WHO had an influential presence in the evolution of human rights for health (Alston 1979) or that public health and human rights always ‘evolved along parallel but distinctly separate tracks’, joined for the first time at the advent of the HIV/AIDS pandemic (Gruskin et al. 2007: 449). Both of these accounts, however, present an incomplete history of global health governance, disregarding the vital human rights leadership displayed by WHO in its early years, and the consequences that resulted from WHO’s subsequent renunciation of its authoritative role as a leading voice for health rights. Through legal analysis and historical narrative, this research examines WHO’s early contributions to and subsequent abandonment of the evolution of health rights. While other studies have examined the treaty language of the right to health (Roscam Abbing 1979; Toebes 1999), no previous study has examined the underlying WHO communications that framed international treaty negotiations (Thomas and Weber 2004). Employing archival research to clarify these communications, it becomes possible to analyse the processes of global health governance in translating health discourses into international legal norms through the development of a human right to health.
2 The foundations of human rights for health
The international codification of a right to health begins in the context of the Second World War. On 6 January 1941, US President Franklin Delano Roosevelt announced to the world that the postwar era would be founded upon four ‘essential human freedoms’: freedom of speech, freedom of religion, freedom from fear, and freedom from want (Roosevelt 1941). It is the final of these ‘Four Freedoms’ – freedom from want – that introduced a State obligation to provide for the health of its peoples. Rising out of the cauldron of war, and drawing on working-class struggles of the late nineteenth and early twentieth centuries, this freedom from want became enshrined in the lexicon of social and economic rights, seeking State obligations to prevent deprivations such as had taken place during the Depression and the War that followed (United Nations Conference on Food and Agriculture 1943). Elaborated at a 1944 postwar planning conference among the Allied Powers, these social and economic rights would take form in the development of State obligations for human rights, providing binding mechanisms for assessing and adjudicating principles of justice under international law (US Department of State 1944).
The Charter of the United Nations (UN Charter) became the first international legal document to recognise the concept of human rights. While not initially enumerated or elaborated, States raised human rights as one of the four principal purposes of the nascent UN, which would ‘make recommendations for the purpose of promoting respect for, and observance of, human rights and fundamental freedoms for all’ (UN 1945: Art 62). During the drafting of the UN Charter, however, States did not initially include any mention of health, either as a goal of the UN or as a human right (Lancet 1945). But for the efforts of the Brazilian and Chinese delegations to the 1945 UN Conference in San Francisco – inserting the word ‘health’ in the UN Charter, finding international health cooperation to be among the purposes of the UN’s Economic and Social Council (ECOSOC), and advocating the establishment of an international health organisation – health would have received no mention in the creation of the UN, blunting the legitimacy of health in international law and the creation of WHO as a UN specialised agency (AJPH 1945). With this promise of international health and human rights cooperation in the UN Charter, it would fall to subsequent human rights treaties to codify a human right to health in international law.
In doing so, the rapid drafting and adoption of the Constitution of the World Health Organization (WHO Constitution) would make it the first international treaty to find a unique human right to health. During an International Health Conference in June 1946, delegates adopted WHO Constitution pursuant to the UN Charter, thereby establishing an Interim Commission to subsume within WHO all of the prior obligations of the League of Nations Health Organization, the Office International d’Hygiene Publique (OIHP), and the Health Division of the United Nations Relief and Rehabilitation Administration (UNRRA). To achieve these ends, the International Health Conference established three organs through which to implement the goals of the new organisation: (a) The World Health Assembly, the legislative policy-making body of WHO, made up of representatives from each member state; (b) the Executive Board, an executive program-developing subset of the World Health Assembly; and (c) the WHO Secretariat, carrying out the decisions of the aforementioned organs through the elected Director-General and appointed WHO staff (WHO 1946). Recognising a necessity to facilitate international cooperation through global health governance, representatives of 61 States signed WHO Constitution on 22 July 1946, after which it remained open for signature until it came into force on 7 April 1948 (Goodman 1948).
In establishing the contours of a human right to health under WHO Constitution – a document far more extensive than those of its institutional predecessors (Masters 1947) – the Preamble declares that ‘the enjoyment of the highest attainable standard of health is one of the fundamental rights of every human being’, defining health positively to include ‘a state of complete physical, mental, and social well-being and not merely the absence of disease or infirmity’ (WHO 1946: Preamble). By expanding the mandate of international public health far beyond the ‘absence of disease’ envisioned by early international health treaties, the International Health Conference ‘extended [WHO] from the negative aspects of public health – vaccination and other specific means of combating infection – to positive aspects, i.e. the improvement of public health by better food, physical education, medical care, health insurance, etc’ (Stampar 1949). In meeting this expansive vision of underlying determinants of health, a vision commensurate with public health’s contemporaneous focus on ‘social medicine’ (Sand 1934), the Preamble declares that ‘governments have a responsibility for the health of their peoples which can be fulfilled only by the provision of adequate health and social measures’ (WHO 1946: Preamble). Under such far-reaching legal principles, WHO Constitution created a veritable ‘Magna Carta of health’ (Parran 1946: 2), ‘represent[ing] the broadest and most liberal concept of international responsibility for health ever officially promulgated’ and encompassing the aspirations of WHO’s mandate to build a healthy world out of the ashes of the Second World War (Allen 1950: 30).
Drawing on the negotiations for WHO Constitution, the UN proclaimed its UDHR on 10 December 1948, enacting through it ‘a common standard of achievement for all peoples and all nations’ (UDHR 1948). By defining a set of interrelated social welfare rights to underlie health, the nascent UN framed a right to health by which:
Everyone has the right to a standard of living adequate for the health and well-being of himself and of his family, including food, clothing, housing and medical care and necessary social services, and the right to security in the event of unemployment, sickness, disability, widowhood, old age or other lack of livelihood in circumstances beyond his control.
(UDHR 1948: Art 25(1))
In developing this right to a standard of living adequate for health, there was widespread international agreement that a human right to health included both the fulfillment of medical care and the realisation of underlying determinants of health – explicitly including public health systems for food, clothing, housing, and social services (UN 1950). This broad, rights-based vision of public health systems was in accordance with: (a) the expansion of European welfare policy, founded on the notion that ‘social security cannot be fully developed unless health is cared for along comprehensive lines’ (Beveridge 1942); (b) the development of human rights in the Americas, incorporating ‘the right to the preservation of … health through sanitary and social measures relating to food, clothing, housing and medical care’ (International Conference of American States 1948: Art XI); and (c) the Soviet Constitution, which established protections of medical care and ‘maintenance in old age and also in case of sickness or disability’ (Konstitutsiia SSSR 1936: Art 120). With this consensus on the underlying determinants of health, framed under the broad umbrella of ‘social security’, there was widespread expectation that this expansive declaratory language would soon be elaborated by specific human rights obligations.
3 The development of a right to health
This narrative chronicles the political dynamics of WHO in the evolution of human rights for health, from the UDHR to the immediate aftermath of the Declaration of Alma-Ata. In the midst of WHO’s role in the codification of the 1948 UDHR in the 1966 ICESCR, WHO Secretariat walked away from its efforts to develop the international legal language of the right to health. When WHO sought to reclaim the mantle of human rights in the pursuit of its ‘Health for All’ strategy, its past obsolescence in rights-based strategies left it without the human rights obligations necessary to implement primary healthcare pursuant to the Declaration of Alma-Ata. In a chronological series of subparts, this research describes WHO’s early influence on human rights (1948–1953), subsequent neglect of human rights (1953–1973), and ultimate rediscovery of human rights as the basis of its ‘Health for All’ strategy (1973–1979) – with these time periods corresponding with successive changes in WHO leadership and direction.
3.1 WHO influences human rights (1948–1952)
From the moment of its inception, WHO sought to pursue dual policy paths in its work: an extension of previous coordination in international disease prevention; and an ambitious rights-based project in national health promotion, implemented programmatically through medical interventions for curative care and public health systems for underlying determinants of health (Lancet 1948). In the aftermath of the Second World War, medical technologies – in the form of new physician practices, newly discovered scientific therapies and global epidemiologic surveillance – had created unlimited possibilities to extend and improve life. As articulated by Brock Chisholm, WHO’s first Director-General, ‘I strongly believe that with all the marvellous tools which modern science and medicine have put at our disposal, we could make tremendous strides towards the attainment by “all peoples of the highest possible level of health”’ (Chisholm 1951: 25). Notwithstanding this moment of exultation for the observed ‘miracles’ of modern medical care, global health discourse continued to emphasise the importance of underlying determinants of health, focused on the relation between economic conditions and physical well-being (Ryle 1948). Adopting the term ‘healthcare’ rather than ‘medical care’ as the basis of health discourse, public health practitioners sought to acknowledge that the full development of health requires both insurance for medical services and underlying conditions for, inter alia, adequate nutrition, housing, education, and social security (Grant 1948). It is in this undercurrent of social medicine – this understanding of the limits of technological progress, and correspondingly, the importance of national public health systems to address underlying determinants of health – that WHO concerned itself with what it considered an ‘inseparable triad’ for public health – ‘the interdependence of social, economic and health problems’ (WHO 1952). To address these interdependent determinants of health, WHO sought to coordinate international health policy, with Member States finding that ‘under the leadership of the World Health Organization, the various national and international programs have become, in a very real sense, a single, unified movement with a common goal and common methods of attaining that goal’ (van Zile Hyde 1953: 605). With a synoptic view of underlying determinants of health and a predilection for collaborative effort to attain its multi-sectoral health goals, WHO Secretariat sought to work with the UN to develop human rights for health.
In fulfilling its global health mission through human rights frameworks, WHO’s early years are marked by its active role in developing human rights treaty language, working with States and UN agencies to expand human rights principles for public health through the codification of the UDHR into legallyenforceable covenants, first in the draft International Covenant on Human Rights and subsequently in the ICESCR. Following WHO’s preliminary initiative to advance the civil and political rights implicated by human experimentation (Commission on Human Rights 1950), ECOSOC’s Commission on Human Rights would take up legal obligations concerning economic, social and cultural rights in its 1951 session, giving WHO Secretariat its first opportunity to influence the development of a human right to health. With the UN reaching out to WHO on collaborative opportunities with the Commission on Human Rights, Director-General Chisholm responded enthusiastically in January 1951, quoting from the preambular language of WHO Constitution and ‘welcom[ing] opportunities to co-operate with the Commission on Human Rights in drafting international conventions, recommendations and standards with a view to ensuring the enjoyment of the right to health’ (WHO 1951a). To this cooperative end, Director-General Chisholm concluded that:
It is clear that the whole programme approved by the World Health Assembly represents a concerted effort on the part of the Member States to ensure the right to health… I am well aware of the obligation of WHO to be guided by this fundamental relationship in planning its work with governments as well as with other international organizations.
Based upon this general direction, WHO staff followed up on the Director-General’s response by suggesting specific human rights treaty language well beyond the UDHR – on topics ranging from occupational health, to nutrition, to child welfare and maternal and child health clinics, to medical and nursing education and research, to international health policy (WHO 1951b).
To further this human rights cooperation, arrangements were made for WHO to direct negotiations on the right to health during the Commission on Human Rights’ 1951 session (WHO 1951c). Having received notice of WHO’s human rights initiative, the US Representative to WHO Executive Board wrote to the Director-General, expressing his scepticism toward the successful implementation of economic and social rights and his ‘hope’ that WHO recognise ‘the problems inherent in attempting to draft enforceable rights for health services’ (van Zile Hyde 1951). Overcoming this scepticism, WHO Secretariat suggested in April 1951 that the right to health should be couched in terms – drawn from WHO Constitution and language abandoned in compromises on the UDHR (UN 1950a) – that emphasised (a) a positive definition of health; (b) the importance of social measures as underlying determinants of health; and (c) the obligation of State health ministries for these underlying determinants:
Every human being shall have the right to the enjoyment of the highest standard of health obtainable, health being defined as a state of complete physical mental and social well-being.
Governments, having a responsibility for the health of their peoples, undertake to fulfil that responsibility by providing adequate health and social measures.
Every Party to the present Covenant shall therefore, so far as it [sic] means allow and with due allowance for its traditions and for local conditions, provide measures to promote and protect the health of its nationals, and in particular:
– to reduce infant mortality and provide for healthy development of the child;
– to improve nutrition, housing, sanitation, recreation, economic and working conditions and other aspects of environmental hygiene;
– to control epidemic, endemic and other diseases;
– to improve standards of medical teaching and training in the health, medical and related professions;
– to enlighten public opinion on problems of health;
– to foster activities in the field of mental health, especially those affecting the harmony of human relations.
(Commission on Human Rights 1951a)
The Commission on Human Rights met in June 1951 to draft legal provisions for – among other economic, social and cultural rights – the right to health (Commission on Human Rights 1951b). Director-General Chisholm opened this debate by challenging State delegates to define health in international human rights law, advocating adoption of the positive definition of health from WHO Constitution. In the shadow of his impassioned plea for health promotion, international consensus developed around WHO’s approach – providing simultaneously for the general recognition of a right to health in an opening paragraph with an enumeration of state obligations in subsequent paragraphs. Framed by WHO’s outline, the Commission on Human Rights concluded its session with the following draft right:
The States Parties to this Covenant recognize the right of everyone to the enjoyment of the highest standard of health obtainable.
With a view to implementing and safeguarding this right, each State party hereto undertakes to provide legislative measures to promote and protect health and in particular:
1. to reduce infant mortality and to provide for healthy development of the child;
2. to improve nutrition, housing, sanitation, recreation, economic and working conditions and other aspects of environmental hygiene;
3. to control epidemic, endemic and other diseases;
4. to provide conditions which would assure the right of all its nationals to a medical service and medical attention in the event of sickness.
(Commission on Human Rights 1951c)
Although States had reverted from the expansive vision of ‘complete’ health to the delimited ‘highest standard of health obtainable’, the revised draft of the right to health was the most detailed of the draft economic, social and cultural rights, placing explicit obligations on states to progressively realise underlying determinants of health through public health systems.
While a right to health lacked the support of medical practitioners (e.g. World Medical Association 1951), WHO Secretariat continued to engage in constructive UN debates to develop the normative language of this legal right. In doing so, WHO leadership in health rights proved influential, as the UN Division of Human Rights drew upon WHO’s background documents in subsequent drafts of the Covenant (UN 1951), highlighting WHO’s policy leadership in its catalogue of UN human rights activities (UN 1952). With WHO Secretariat receiving broad authorisation from its Executive Board to develop human rights standards for health and to implement those standards through national health legislation and global health reports (WHO 1951d), WHO returned to the 1952 session of the Commission on Human Rights to assist in the finalisation of the language of the right to health.
When the 1952 session of Commission on Human Rights reached the right to health – now incorporated in the draft ICESCR (Commission on Human Rights 1952a) – State delegates presented and adopted the following amendments in line with WHO’s original vision, expanding:
• the first paragraph to include the definition of health from WHO Constitution, and
• the second paragraph to replace the obligation of ‘legislative measures’ with all ‘those necessary for’ realising underlying determinants of health (Commission on Human Rights 1952b).
As a result, and in correcting a translation error to replace ‘obtainable’ with ‘attainable standard of health,’ the draft text of the article on the right to health was amended to:
The States Parties to the Covenant, realizing that health is a state of complete physical, mental and social well-being, and not merely the absence of disease or infirmity, recognize the right of everyone to the enjoyment of the highest attainable standard of health.
The steps to be taken by the States Parties to the Covenant to achieve the full realization of this right shall include those necessary for:
(a) The reduction of infant mortality and the provision for healthy development of the child;
(b) The improvement of nutrition, housing, sanitation, recreation, economic and working conditions and other aspects of environmental hygiene;
(c) The prevention, treatment and control of epidemic, endemic and other diseases;
(d) The creation of conditions which would assure to all medical service and medical attention in the event of sickness.
(Commission on Human Rights 1952c)
With the Commission unable to complete its drafting of the human rights covenants before the end of the session, ECOSOC authorised States to revisit the covenants at the Commission’s 1953 session (ECOSOC 1952). However, between the 1952 and 1953 sessions, a change in leadership and health priorities would lead WHO to relinquish its leadership in health rights, and as a consequence, the right to health would be progressively weakened in the years to come.