UN and WHO Seek to Globally Govern Right to Health
Wednesday, August 6, 2008
By publishing a new Fact Sheet on the right to health, the United Nations and the World Health Organization have engaged in another attempt to globally govern the right to health. At the end of June, the UN Office of the High Commissioner for Human Rights (OHCHR), along with the World Health Organization (WHO), released its “Fact Sheet No. 31” on the Right to Health. The Fact Sheet proposes to define the right to health referred to in the International Covenant on Economic, Social and Cultural Rights (the Covenant) and other international agreements. It describes the manner in which the right to health applies to different groups, outlines the obligations of States and other non-State actors in regards to the right to health, and suggests how States can be held accountable in this area.
In an attempt to authoritatively interpret the vague “right to health” contained in the Covenant, the Fact Sheet has a stated goal of “shed[ding] light on the right to health in international human rights law as it currently stands, amidst the plethora of initiatives and proposals as to what the right to health may or should be.” It expands the right to health to encompass other economic, social and cultural rights, stating that the right to health “includes a wide range of factors that can help us lead a healthy life.” According to the Fact Sheet, these “underlying determinants of health” include the rights to safe drinking water and food, adequate nutrition and housing, health-related education, gender equality, and healthy working conditions. Thus, according to the OHCHR and WHO, the obligation of governments and other non-governmental actors to ensure the right to health includes the responsibility to protect these broad “underlying determinants of health.”
The Fact Sheet stresses that one of the principle components of the right to health is non-discrimination. This non-discrimination provision is interpreted to apply not only to a State’s general responsibility to ensure that all people have an equal opportunity to live a healthy life, but, more specifically, to the provision of equal access to medicines (regardless of intellectual property laws); equal access to the benefits of research for neglected diseases; in the case of women, equal protection of “reproductive rights;” and equal access to government-sponsored universal healthcare, regardless of any “language or cultural barriers” or “legal status.”
Finally, while States are considered to be ultimately responsible for ensuring the right to health, the Fact Sheet states that the private sector has health obligations as well. Specifically, the publication sees it as the responsibility of pharmaceutical companies to ensure that all are able to obtain the medications that they need, rather than making “health care more difficult to access or afford…by keeping the price of medicines…high.”
The United States of America has not ratified the Covenant, in which the “right to health” is contained. However, the Covenant has been adopted by most nations. OHCHR and WHO officials recognize that by publishing the Fact Sheet they have unilaterally offered right to health advocates, attorneys, and judges a means of developing the right to health so that it will become customary international law. Yet, they have done so without giving UN Member States, including those that are party to the Covenant, the opportunity to adopt the Fact Sheet. This action is an egregious example of the global governance ambitions of unaccountable officials within the UN, WHO, and other multi-lateral international organizations.
Jim Kelly is the President of Solidarity Center for Law and Justice, P.C., a public interest civil and human rights law firm based in Atlanta, Georgia. The opinions expressed herein are his own.