U.S. Criticizes World Health Organization "Fact Sheet" on the Right to Health
ENVIRONMENT & HEALTH, HUMAN RIGHTS, LAW & JUSTICE
Monday, December 22, 2008
On October 15, the United States Department of State issued a paper titled “Observations by the United States of America on ‘The Right to Health, Fact Sheet No. 31.’” (For more information on “Fact Sheet No. 31,” please see the August 6 Global Governance Watch® report.) The paper accuses the World Health Organization (WHO) and the Office of the United Nations High Commissioner for Human Rights (OHCHR) of overreaching their mandates in publishing a fact sheet that purports to authoritatively interpret the vaguely defined “Right to Health” contained within the International Covenant on Economic, Social and Cultural Rights (the “Covenant”), and to do so without the input of States. Because of this, the State Department has asked that the Fact Sheet be rescinded.
The State Department’s paper cites several examples of statements contained in the Fact Sheet that it maintains are inaccurate or misleading. First, the State Department notes that “there is no international consensus on the nature and scope of health-related rights and obligations.” In spite of this, the Fact Sheet paints an “expansive and detailed characterization of [the] legal content” of the right to health, and treats its definitions not as opinions, but as binding obligations of States. Further, even if it did have the authority to define these rights, the paper notes that the Fact Sheet often blurs the distinction between “States” and “States Parties” to the Covenant. It implies that all States, “regardless of whether they have ratified the [Covenant], have international obligations to respect, protect, and fulfill the ‘right to health’ of individuals within their respective jurisdictions.” The paper also draws attention to Fact Sheet’s references to many non-binding documents as authoritative justification for its definitions of right to health obligations.
Authority to interpret the right to health is also given to treaty monitoring bodies by the Fact Sheet. However, the State Department points out that “general comments and other documents issued by treaty monitoring bodies express the opinions of individuals acting in their expert capacities; such documents are not the result of deliberations among States” and they therefore “do not create legal obligations or ‘requirements’” for States.” For the authors of the Fact Sheet to imply that they do so is incorrect.
Additionally, the paper highlights that the Fact Sheet makes very liberal use of such controversial terms as “reproductive health,” “sexual and reproductive health,” and “reproductive health care.” The State Department finds the vague use of these phrases problematic because they are “ambiguous. There is no international definition of what it does or does not include, and some may misconstrue the term to signify an international right to abortion.”
Finally, the State Department sees the WHO and the OHCHR as overstepping their mandates by trying to define a government’s responsibility to dictate the activities of non-state actors in relation to human rights issues, saying that it is inaccurate for the Fact Sheet to claim that there is a “general obligation in international human rights law – including with respect to the ‘right to health’ – that obligates States to ‘ensure’ the non-infringement on human rights by non-state actors.”
In conclusion, rather than strengthening international human rights law, the State Department feels that the WHO and OHCHR’s Fact Sheet actually undermines respect for international law, because it misleadingly “attempt[s] to fashion policy objectives into assertions of international legal obligation."
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.
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