38/37 Contributions of the right to health framework to the effective implementation and achievement of the health-related Sustainable Development Goals - Report of the United Nations High Commissioner for Human Rights

GE.18-06358(E)



Human Rights Council Thirty-eighth session

18 June–6 July 2018 Agenda items 2 and 3

Annual report of the United Nations High Commissioner for

Human Rights and reports of the Office of the High Commissioner

and the Secretary-General

Promotion and protection of all human rights, civil,

political, economic, social and cultural rights,

including the right to development

Contributions of the right to health framework to the effective implementation and achievement of the health- related Sustainable Development Goals

Report of the United Nations High Commissioner for Human Rights

Summary

In the present report, submitted pursuant to Human Rights Council resolution

35/23, the United Nations High Commissioner for Human Rights discusses the

contributions of the right to health framework to the effective implementation and

achievement of the health-related Sustainable Development Goals. He recalls the human

rights underpinnings of the 2030 Agenda for Sustainable Development, and the close

linkages between the right to health and the health-related Goals. In the report, he

highlights the fact that the international standards on the right to health provide

normative guidance in addressing several challenges relating to the implementation of

the health-related Goals, such as aligning law and policy with human rights,

operationalizing the pledge to leave no one behind, accountability and participation. The

report also contains several examples of emerging good practices in applying the right to

health framework.

United Nations A/HRC/38/37

Contents

Page

I. Introduction ................................................................................................................................... 3

II. The right to health in international human rights law ................................................................... 3

III. The 2030 Agenda for Sustainable Development and the right to health ....................................... 5

A. Human rights underpinnings of the Sustainable Development Goals ................................... 5

B. Health in the Sustainable Development Goals ...................................................................... 5

IV. Applying the right to health framework in implementing the health-related

Sustainable Development Goals .................................................................................................... 6

A. Normative guidance .............................................................................................................. 6

B. Addressing key challenges .................................................................................................... 7

V. Emerging good practices ............................................................................................................... 14

VI. Conclusion .................................................................................................................................... 16

I. Introduction

1. The present report has been prepared pursuant to Human Rights Council resolution

35/23, in which the Council requested the United Nations High Commissioner for Human

Rights to prepare a report that presents contributions of the right to health framework to the

effective implementation and achievement of the health-related Sustainable Development

Goals, identifying best practices, challenges and obstacles thereto, and to submit it to the

Council at its thirty-eighth session.

2. In preparing the report, the Office of the United Nations High Commissioner for

Human Rights (OHCHR) consulted and took into account the views of a range of

stakeholders, as the Council encouraged it to do. A total of 49 contributions were received

from Member States, United Nations bodies, human rights treaty bodies, special procedure

mandate holders, national human rights institutions, academia and civil society

organizations. All submissions are available on the OHCHR website.1

II. The right to health in international human rights law

3. The right of everyone to the enjoyment of the highest attainable standard of physical

and mental health is a fundamental right that is indivisible from, and interdependent and

interrelated with, all other human rights. It is recognized in human rights instruments

adopted at both the global and the regional levels, including in article 25 (1) of the

Universal Declaration of Human Rights and article 12 of the International Covenant on

Economic, Social and Cultural Rights. The right to health is also enshrined in the

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

Convention on the Elimination of all Forms of Discrimination against Women, the

Convention on the Rights of the Child, the International Convention on the Protection of

the Rights of All Migrant Workers and Members of Their Families and the Convention on

the Rights of Persons with Disabilities.2

4. This section highlights key aspects of the normative right to health framework that

has been prepared by international human rights mechanisms. The general comments of the

Committee on Economic, Social and Cultural Rights and other treaty bodies provide

authoritative guidance on the normative content of the right and on the scope of State

obligations, including priority interventions towards the progressive realization of the right.

5. In paragraph 11 of its general comment No. 14 (2000) on the right to the highest

attainable standard of health, the Committee on Economic, Social and Cultural Rights

interprets the right to health as an inclusive right, encompassing both the underlying

determinants of health and access to timely and appropriate health care. The right to health

contains both freedoms, such as the right to control one’s health and body and the right to

be free from interference, and entitlements, such as the right to a system of health

protection that provides equality of opportunity for people to enjoy the highest attainable

level of health.3 Regarding sexual and reproductive health in particular, freedoms include

the right to make free and responsible decisions and choices, free of violence, coercion and

discrimination, about matters concerning one’s body and sexual and reproductive health

and rights. Entitlements, on the other hand, include unhindered access to a range of health

facilities, goods, services and information, which ensure all persons full enjoyment of the

right to sexual and reproductive health.4

1 See www.ohchr.org/EN/Issues/ESCR/Pages/HealthFramework.aspx.

2 Regional instruments recognizing the right to health include: the African Charter on Human and

Peoples’ Rights; the Additional Protocol to the American Convention on Human Rights in the Area of

Economic, Social and Cultural Rights; and the European Social Charter.

3 See Committee on Economic, Social and Cultural Rights, general comment No. 14 (2000) on the right

to the highest attainable standard of health, para. 8.

4 See Committee on Economic, Social and Cultural Rights, general comment No. 22 (2016) on the right

to sexual and reproductive health, para. 5.

6. The following interrelated and essential elements are part of the normative content

of the right to health:5

(a) Availability, which requires functioning public health and health-care

facilities, goods and services to be available in sufficient quantity within the State;

(b) Accessibility, which requires health facilities, goods and services to be

affordable and physically accessible to all on the basis of non-discrimination;

(c) Acceptability, which requires health facilities, goods and services to be

gender-sensitive, culturally, scientifically and medically appropriate and respectful of

medical ethics;

(d) Quality, which requires health facilities, goods and services to be

scientifically and medically appropriate.

7. The right to informed consent is a fundamental dimension of the right to physical

and mental health. It protects the right of the patient to be involved voluntarily and

sufficiently in medical decision-making, and assigns associated duties and obligations to

health-care providers. Important components of informed consent include: (a) respect for

legal capacity, generally determined by the ability to comprehend, retain, believe and

evaluate information provided in arriving at a decision; (b) respect for personal autonomy,

without coercion, undue influence or misrepresentation; and (c) completeness of

information, including associated benefits, risks and alternatives to a medical procedure.6

8. The human rights-based approach arising from these norms also requires that health

authorities and other duty bearers be held accountable for meeting human rights obligations

in public health, including through the possibility for rights holders to seek effective

remedies when their right to health is violated, through effective judicial complaints

mechanisms or other appropriate avenues for redress. States have an obligation to ensure

the meaningful participation of all stakeholders in the development, implementation and

monitoring of health policy.

9. The International Covenant on Economic, Social and Cultural Rights provides for

the progressive realization of the right to health and other economic, social and cultural

rights. At the same time, it also imposes on States parties various obligations that have

immediate effect, such as guaranteeing the exercise of the right without discrimination, and

taking deliberate, concrete and targeted measures to move as expeditiously and effectively

as possible towards the full realization of the right, using the maximum available resources.

States parties have core obligations to ensure the satisfaction, at the very least, of a

minimum essential level of the right, including: (a) ensuring access to health facilities,

goods and services on a non-discriminatory basis, especially for vulnerable or marginalized

groups; (b) ensuring access to basic shelter, housing and sanitation, and an adequate supply

of safe and potable water; (c) providing essential drugs, as defined in the World Health

Organization (WHO) Model List of Essential Medicines; (d) ensuring the equitable

distribution of all health facilities, goods and services; and (e) adopting and implementing a

national public health strategy and plan of action.7 Additional obligations of comparable

priority include ensuring reproductive, maternal and child health care, and providing

immunization against the major infectious diseases occurring in the community, education

and access to health information and training for health personnel, including education on

health and human rights.8

5 See Committee on Economic, Social and Cultural Rights, general comment No. 14, para. 12.

6 See A/64/272, sects. II–III.

7 See Committee on Economic, Social and Cultural Rights, general comment No. 14, para. 43.

8 Ibid., para. 44.

III. The 2030 Agenda for Sustainable Development and the right to health

A. Human rights underpinnings of the Sustainable Development Goals

10. The 2030 Agenda for Sustainable Development is grounded in the Universal

Declaration of Human Rights, international human rights treaties and other instruments.9 As

a result, the Sustainable Development Goals seek to realize the human rights of all and to

achieve gender equality and the empowerment of all women and girls.10 In addition to

reaffirming the importance of the Universal Declaration of Human Rights and other

international instruments relating to human rights and international law, States also

underscore their responsibility, in conformity with the Charter of the United Nations, to

respect, protect and promote human rights and fundamental freedoms for all, without

distinction of any kind as to race, colour, sex, language, religion, political or other opinion,

national or social origin, property, birth, disability or other status.11 The pledges to leave no

one behind and to endeavour to reach the furthest behind first evoke the key human rights

principles of equality, non-discrimination and inclusion.12

11. While the Sustainable Development Goals themselves are not framed explicitly in

the language of human rights, virtually all of the Goals explicitly reflect the contents of

corresponding key economic, social and cultural rights. Many of the targets under the Goals

address availability, accessibility, including economic accessibility (affordability), and

quality of education, health, water and other services related to those rights, with targets on

access to safe, nutritious and sufficient food for all, universal health coverage, free,

equitable and quality primary and secondary education, access to safe and affordable water,

sanitation, hygiene and housing and access to safe, effective, quality and affordable

essential medicines and vaccines for all.13

12. The 2030 Agenda reaffirms human rights for all, without distinction of any kind as

to race, colour, sex, language, religion, political or other opinion, national or social origin,

property, birth, disability or other status.14 It also pays particular attention to women and

girls, and to those in situations of vulnerability, such as children, youth, persons with

disabilities, persons living with HIV/AIDS, older persons, indigenous peoples, refugees and

internally displaced persons and migrants.15

B. Health in the Sustainable Development Goals

13. As stated by the Special Rapporteur on the right of everyone to the enjoyment of the

highest attainable standard of physical and mental health, health is central to the

Sustainable Development Goals, as it is both an outcome of and a path to achieving poverty

reduction and sustainable development. Progress in health is both dependent on and a

consequence of progress towards other Goals. 16 The supremely ambitious and

transformational vision envisaged by the 2030 Agenda is of a world with equitable and

universal access to quality education at all levels, to health care and social protection,

where physical, mental and social well-being are assured.17

14. While the right to health is intrinsically connected to several Goals and targets, Goal

3, on ensuring healthy lives and promoting well-being for all at all ages, is the principal

9 See General Assembly resolution 70/1, para. 10.

10 Ibid., third preambular paragraph.

11 Ibid., para. 19.

12 Ibid., para. 4.

13 See A/HRC/34/25, paras. 8 and 10.

14 See General Assembly resolution 70/1, para. 19.

15 Ibid., para. 23.

16 See A/71/304, para. 6.

17 See General Assembly resolution 70/1, para. 7.

health-related Goal, and its targets cover a broad range of health concerns. These targets

address: (a) maternal mortality (target 3.1); (b) preventable deaths of newborns and children

under 5 years of age (target 3.2); (c) AIDS, tuberculosis, malaria and neglected tropical

diseases, hepatitis, waterborne diseases and other communicable diseases (target 3.3); (d)

premature mortality from non-communicable diseases, mental health and well-being (target

3.4); (e) the prevention and treatment of substance abuse, including narcotic drug abuse and

harmful use of alcohol (target 3.5); (f) road traffic accidents (target 3.6); (g) universal

access to sexual and reproductive health-care services, and the integration of reproductive

health into national strategies and programmes (target 3.7); (h) universal health coverage,

access to quality essential health-care services and access to safe, effective, quality and

affordable essential medicines and vaccines for all (target 3.8); and (i) deaths and illnesses

from hazardous chemicals and air, water and soil pollution and contamination (target 3.9).

15. Goal 3 targets also aim to: strengthen the implementation of the WHO Framework

Convention on Tobacco Control in all countries (target 3.a); support the research and

development of vaccines and medicines for the communicable and non-communicable

diseases that primarily affect developing countries and provide access to affordable

essential medicines and vaccines, in accordance with the Doha Declaration on the TRIPS

Agreement and Public Health (target 3.b); substantially increase health financing and the

recruitment, development, training and retention of the health workforce in developing

countries, especially in least developed countries and small island developing States (target

3.c); and strengthen the capacity of all countries, in particular developing countries, for

early warning, risk reduction and management of national and global health risks (target

3.d).

16. Many of the targets deal with elements that resonate and are consistent with human

rights norms and standards. For example, target 3.3 recalls the prevention, treatment and

control of epidemic, endemic, occupational and other diseases envisaged in article 12 (2) (c)

of the International Covenant on Economic, Social and Cultural Rights, with control

including the making available of relevant technologies, the use and improvement of

epidemiological surveillance and data collection on a disaggregated basis and the

implementation or enhancement of immunization programmes and other strategies of

infectious disease control. 18 Under article 12 (2) (d) of the Covenant, universal health

coverage, considered in greater detail below, entails the creation of conditions that would

assure to all medical service and medical attention in the event of sickness. Access to

medicines, covered in target 3.b, evokes one of the core obligations under the right to health.

The human rights framework, particularly on the right to health, can positively contribute to

the realization of the 2030 Agenda. The following section will consider how the right to

health framework can contribute to the achievement of the Sustainable Development Goals.

IV. Applying the right to health framework in implementing the health-related Sustainable Development Goals

A. Normative guidance

17. One of the key cross-cutting commitments of the 2030 Agenda is that its

implementation should be in accordance with the rights and obligations of States under

international law,19 including human rights norms and standards. States therefore have an

imperative to integrate the key human rights principles and international norms and

standards arising from the right to health into the framing and implementation of laws,

policies and practices, in order to achieve the health-related Sustainable Development

Goals.

18. The High-Level Working Group on the Health and Human Rights of Women,

Children and Adolescents, co-convened in May 2016 by OHCHR and WHO to secure

18 See Committee on Economic, Social and Cultural Rights, general comment No. 14, para. 16.

19 See General Assembly resolution 70/1, para. 18.

political support for the implementation of the human rights-related measures required by

the Global Strategy for Women’s, Children’s and Adolescents’ Health (2016–2030),

indicated that a human rights-based approach was essential for the following reasons: (a) it

supports States in meeting their obligations under international human rights law; (b) it

offers a principled basis for universal access to health services, emphasizing that

interventions must be non-discriminatory, transparent and participatory, and founded on

strong public accountability; (c) it requires focus on both the empowerment of rights

holders and the responsibilities of duty bearers; (d) it aims to enhance the capacity of duty

bearers at the local, district and national levels to meet their obligations to respect, protect

and fulfil human rights in transparent, effective and accountable ways; (e) it requires full

and informed participation by all those affected by any action or policy; and (f) it builds

true sustainability into health systems and towards improving health outcomes by requiring

that the underlying determinants of health be tackled, including through the realization of

health-enabling rights.20

19. The Special Rapporteur on extreme poverty and human rights observed that human

rights provided a context and a detailed and balanced framework that: invoked the specific

legal obligations that States had agreed upon in the various human rights treaties;

emphasized that certain values were non-negotiable; brought a degree of normative

certainty; and brought into the discussion the carefully negotiated elaborations of the

meaning of specific rights that had emerged from decades of reflection, discussion and

adjudication.21 Crucially, in view of the people-centred underpinnings of the 2030 Agenda,

the language of rights recognizes the dignity and agency of all individuals (regardless of

race, gender, social status, age, disability or any other distinguishing factor) and it is

intentionally empowering.22 This is particularly true for the right to health.

B. Addressing key challenges

20. The following section contains a consideration of a selection of key challenges

connected with the effective implementation and achievement of the health-related

Sustainable Development Goals, and the contribution of the right to health framework in

addressing them.

1. Realizing health and health-related rights

21. The realization of the right to health is dependent on the exercise, without

discrimination, of other human rights, be they civil, political, economic, social or cultural.

When the right to health is protected, the enhanced enjoyment of other rights necessary to

preserve dignity, realize potential and assert autonomy becomes possible.23 However, while

the right to health framework is well established, health policymakers often miss the

opportunity to integrate human rights principles, norms and standards into policy

development, implementation and monitoring, as well as into mechanisms for

accountability, which would improve process and policy outcomes for rights holders. The

Special Rapporteur on health refers, in this regard, to an implementation gap, noting that

while the fundamental principles and the main processes and mechanisms of the right to

health are well identified, there still remains a significant gap between the formulation of

health policies and their effective implementation in everyday practice. This is so even

where the formulation of health policy is satisfactory from a human rights standpoint.24 A

number of factors account for this implementation gap, and some of the most significant

include: a growing trend that favours a narrow and selective approach to human rights that

20 More information in this regard is available from

www.ohchr.org/EN/Issues/Women/WRGS/Pages/MaternalAndChildHealth.aspx.

21 See A/70/274, para. 65.

22 Ibid.

23 World Health Organization (WHO), Leading the realization of human rights to health and through

health: Report of the High-Level Working Group on the Health and Human Rights of Women,

Children and Adolescents (2017), p. 10.

24 See A/HRC/29/33, para. 40.

ignores or insufficiently addresses one or more rights, including the right to health, of a

group of the population; a failure to address human rights as determinants of health; and a

tendency towards policy fragmentation across areas that affect health. 25 Applying the

principle of the interdependence and indivisibility of all human rights is therefore essential

for the full realization of the right to health.26

22. Strong and committed leadership, including at the highest levels, is indispensable if

effect is to be given to the changes necessary to integrate human rights into public health on

a sustainable basis. Such leadership is crucial for rectifying the “pathologies of power”: the

power imbalances that are often at the root of poor health outcomes for persons in

disadvantaged and vulnerable situations.27 These power differentials cut across relations

between government and governed, communities and established authorities, health

personnel and the persons they serve, and those who determine social, cultural, religious

and other norms and practices and those who are, effectively, compelled to abide by them

even to their detriment. Without committed leadership and effective participation, negative

power dynamics are likely to continue to undermine the enjoyment of the right to health.28

Dedicated leadership would oversee the implementation of a coordinated approach to health

policy in a whole-of-government push to engage other sectors whose policy has an impact

on health, examples being the education, trade, water and sanitation, nutrition and transport

sectors.29 This coordinated approach would have, as a key goal, the realization of “the

whole nexus of intersecting, interdependent rights”.30

2. Aligning law and policy with human rights

23. A legal and policy framework anchored in human rights norms is crucial to ensuring

the effective implementation of the Sustainable Development Goals relating to the full

realization of human rights, including the right to health. In the last decade, there have been

significant setbacks regarding the realization of the right to health and human rights in

general. The Special Rapporteur on health expressed concern that the effects of the

tendency to adopt a selective approach to human rights are most detrimental for groups that

are already experiencing discrimination and that are often unable to access health services,

with the result that poverty, social exclusion, inequalities and discrimination are reinforced

and health suffers. 31 Other negative trends impacting the right to health include rising

inequalities, which have seen indigenous peoples, minorities, persons with disabilities and

other populations and groups in vulnerable situations face barriers to access to essential

services.

24. In the area of sexual and reproductive health and rights, restrictive laws and policies

in some countries threaten the gains that have been made so far, particularly in preventable

maternal and child mortality. The use of penal laws to hinder access to maternal health

services, and to criminalize entire population groups, such as lesbian, gay, bisexual,

transgender and intersex persons, sex workers and persons who use drugs, contributes to

stigma and discrimination. Its correlation with poor health outcomes of those groups is well

documented.

25. In tandem with the protection of the right to health in national law and the adoption

of a national health policy, the right to health framework requires that States adopt

legislative, administrative, budgetary, judicial, promotional and other measures towards the

25 Ibid., para. 42.

26 Ibid., para. 43.

27 Paul Farmer, Pathologies of Power: Health, Human Rights, and the New War on the Poor (University

of California Press, 2004).

28 Alicia Ely Yamin and Rebecca Cantor, “Between insurrectional discourse and operational guidance:

challenges and dilemmas in implementing human rights-based approaches to health”, Journal of

Human Rights Practice, vol. 6, No. 3 (November 2014), p. 463.

29 WHO, Leading the realization of human rights to health and through health: Report of the High-

Level Working Group on the Health and Human Rights of Women, Children and Adolescents (2017),

p. 35.

30 Ibid., p. 11.

31 See A/HRC/29/33, paras. 42 and 44–45.

full realization of the right to health.32 Interventions towards these objectives include a

comprehensive assessment of the extent to which existing legal and policy frameworks

comply with the human rights norms applicable to health and well-being, through a

participatory, inclusive and transparent process, with stakeholder consultation throughout.

Such an assessment could be followed by measures to: (a) repeal, rescind or amend laws

and policies to align them with human rights norms; (b) enact laws and implement policies

promoting positive measures to ensure that essential health services, including primary

health-care, sexual and reproductive health services, maternal health services, and neonatal,

child and adolescent health services, are available, accessible, acceptable and of good

quality;33 and (c) ensure accountability, as more fully set out below.

3. Operationalizing the pledge to leave no one behind

26. The central promise of the 2030 Agenda to leave no one behind and to reach the

furthest behind first effectively mirrors the human rights principle of equality and non-

discrimination. In the section below, the High Commissioner explores the challenges in

operationalizing this commitment, viewed from the perspective of women’s rights, as well

as in the two specific areas of neglected health concerns and universal health coverage. The

pledge to leave no one behind should be reflected in all policy areas, including

accountability and participation.

(a) Women and girls

27. The 2030 Agenda aspires to a world in which every woman and girl enjoys full

gender equality and all legal, social and economic barriers to their empowerment have been

removed. Achieving gender equality will contribute significantly to the achievement of the

Sustainable Development Goals as a whole. Goal 5 explicitly calls on all States to empower

all women and girls and achieve gender equality by 2030. Equality between men and

women is protected by several human rights instruments and is a cornerstone of human

rights law.34 Nevertheless, the denial of the health and health-related rights of women and

girls remains widespread, as a result of discrimination, exclusion and traditional, cultural,

social and other norms and practices that place women and girls in positions of inferiority

or subordination in the home, the community, the workplace and broader society.

Cumulative and intergenerational impacts of gender-based discrimination and inequality

have grave consequences for the health outcomes of half of the world’s population.35

28. Other obstacles to the realization of the right to health of women and girls include

legal, procedural, practical and social barriers to access to the full range of sexual and

reproductive health facilities, services, goods and information. 36 Harmful gender

stereotypes and practices, such as child and forced marriage, female genital mutilation, the

preferential care of boys and violence against women also contribute to poor health

outcomes.37 Unequal access to quality education and employment limits the opportunities

available to girls and women to ensure their agency. The lack of financial independence and,

in particular, of agency, frequently means that women and girls are unable to access good

quality health services that also meet the criteria regarding acceptability, especially gender

sensitivity: a vital element concerning their ability to exercise their sexual, reproductive and

other health rights.

32 See Committee on Economic, Social and Cultural Rights, general comment No. 14, paras. 33 and 36.

33 Jyoti Sanghera and others, “Human rights in the new Global Strategy”, British Medical Journal, vol.

351, supplement 1 (September 2015), pp. 42–43.

34 See International Covenant on Civil and Political Rights, art. 3; International Covenant on Economic,

Social and Cultural Rights, art. 3; and Convention on the Elimination of All Forms of Discrimination

against Women, arts. 1–2.

35 In its report entitled Leading the Realization of Human Rights to Health and through Health, the

High-Level Working Group on the Health and Human Rights of Women, Children and Adolescents

notes that “preventable death, ill-health and impairment are firmly rooted in the failure to protect

human rights” (p. 7).

36 See Committee on Economic, Social and Cultural Rights, general comment No. 22, para. 2.

37 See www.ohchr.org/Documents/Publications/FactSheet23en.pdf.

29. As well as requiring that States take all appropriate measures to eliminate

discrimination against women in the field of health care, in order to ensure, on the basis of

equality of men and women, access to health-care services, the right to health framework

calls for attention to be paid to the underlying determinants of women’s health. 38

Interventions to prevent and treat diseases and conditions affecting women, and to respond

to gender-based violence should be part of a national strategy to promote health throughout

the course of life. The health needs and rights of women belonging to vulnerable and

marginalized groups, such as migrant women, refugee and internally displaced women,

older women, indigenous women and women with disabilities, should receive special

attention. 39 As recommended by the Committee on the Elimination of Discrimination

against Women, States should: (a) monitor the provision of health services to women by

public, non-governmental and private organizations, to ensure equal access and quality of

care; (b) require all health services to be consistent with the human rights of women,

including the rights to autonomy, privacy, confidentiality, informed consent and choice;

and (c) ensure comprehensive, mandatory, gender-sensitive training on women’s health and

human rights for health workers.40

(b) Addressing neglected health concerns: mental health

30. The right to health encompasses both physical and mental health, without placing

preferential value on either one. Yet, despite mental health conditions affecting one in four

persons over their lives, persons affected by mental health conditions experience social and

other forms of exclusion on a broad scale, and mental health remains marginalized in many

ways. 41 The stigma and discrimination to which many persons with mental health

conditions are subjected, in the community, in other social environments and contexts and

in health-care settings, discourage them from seeking the health care and services they need.

A frequently isolating experience, living with mental health conditions is commonly

typified by the denial of many other rights, such as the rights to work, to education, to an

adequate standard of living and to housing. Forced treatment and other harmful practices

within mental health institutions, such as solitary confinement, forced sterilization, the use

of restraints, forced medication and overmedication, not only violate the right to free and

informed consent provided for by the Convention on the Rights of Persons with Disabilities,

but constitute ill-treatment that may amount to torture.42 Marginalization of mental health is

a significant challenge: there are data and research gaps, especially with regard to the

human rights situation of persons with mental health conditions, and financial and human

resource allocations for mental health are all symptomatic of the lesser value routinely

ascribed to mental health.43

31. As the above outline endeavours to demonstrate, the marginalization of certain

health concerns inevitably brings about the marginalization of affected persons. A core

obligation under the right to health is the duty to adopt and implement a national public

health strategy and plan of action, on the basis of epidemiological evidence, addressing the

health concerns of the whole population. 44 A participatory and transparent process,

incorporating periodic reviews, should be employed in the development of the strategy and

plan, and special attention accorded to all vulnerable or marginalized groups. The neglect of

these issues in health and other relevant policy, and of the persons affected by them, signals

certain serious shortcomings in ensuring the availability, accessibility, acceptability and

quality of health services, facilities and goods, and in upholding accountability and the right

38 See Convention on the Elimination of All Forms of Discrimination against Women, art. 12 (1);

Committee on the Elimination of Discrimination against Women, general recommendation No. 24

(1999) on women and health, para. 6.

39 See Committee on the Elimination of Discrimination against Women, general recommendation No.

24, paras. 6 and 29.

40 Ibid., para. 31 (d), (e) and (f).

41 See www.who.int/mental_health/maternal-child/child_adolescent/en/; and submission of International

Disability and Development Consortium, pp. 2–3.

42 See A/HRC/34/32, para. 33.

43 Ibid., paras. 19 and 21.

44 See Committee on Economic, Social and Cultural Rights, general comment No. 14, para. 43 (f).

to participation. Reaching first those who are furthest behind and leaving no one behind

calls for their equal prioritization along with other health concerns relevant to the

population as a whole.

(c) Universal health coverage

32. The 2030 Agenda endorses a commitment to achieve universal health coverage for

all, which remains an important challenge. According to the International Labour

Organization (ILO), 46.3 per cent of the global population and 56 per cent of the global

rural population lack health coverage. Approximately 48 per cent of the population, and

more than half of older persons worldwide, have no access to long-term care as a result of

insufficient numbers of the skilled workers needed for service delivery.45 Largely ignored in

health policy, long-term care is widely perceived as free care, to be provided by unpaid

female family members. However, such unpaid care does have economic implications, such

as loss of income opportunities and the resulting risk of impoverishment.46

33. There is a broad diversity of views regarding what universal health coverage entails,

and the traditional role played by the private sector in voluntary insurance schemes has

been very influential in the conception of health coverage in general. Although target 3.8 of

the Sustainable Development Goals refers to financial risk protection, access to quality

essential health-care services and access to safe, effective, quality and affordable essential

medicines and vaccines for all, universal health coverage is not defined in the 2030 Agenda,

nor is there any mention of the need to prioritize marginalized and vulnerable populations

and groups, such as those living in poverty.47

34. In the absence of a clear definition of universal health coverage in the Sustainable

Development Goals, the international human rights framework and the right to health

framework can provide guidance and standards to improve health outcomes for all people,

without discrimination. The Special Rapporteur on health cautions that not all paths to

universal health coverage are consistent with human rights standards, noting in particular

the risk of entrenching inequalities where, for instance, Governments prioritize the

expansion of coverage to privileged groups in the formal sector.48 A human rights-based

approach to universal health coverage, recommended by the High-Level Working Group on

Health and Human Rights, 49 fundamentally requires that availability, accessibility,

acceptability and quality be ensured, and that persons in vulnerable situations who are

mostly excluded from universal health coverage be prioritized. A human rights-based

approach to universal health coverage calls, among other requirements, for the creation of

conditions that would ensure to every person all appropriate medical service and medical

attention in the event of need,50 universal coverage of quality primary health services for

children51 and the elimination of discrimination in health care and services, especially in

relation to the core obligations of the right to health.52 Thus, universal health coverage

refers not merely to an expansion of coverage for health services but also to access, for

every person throughout the course of life, to the full complement of necessary and

appropriate health care and services on the basis of non-discrimination.53

45 International Labour Organization (ILO), World Social Protection Report 2017–19: Universal social

protection to achieve the Sustainable Development Goals (2017), pp. 104–109.

46 Ibid., p. 108.

47 See A/71/304, para. 76.

48 Ibid.

49 WHO, Leading the realization of human rights to health and through health: Report of the High-

Level Working Group on the Health and Human Rights of Women, Children and Adolescents (2017),

p. 34, recommendation 2.

50 See International Covenant on Economic, Social and Cultural Rights, art. 12 (2) (d).

51 See Committee on the Rights of the Child, general comment No. 15 (2013) on the right of the child to

the enjoyment of the highest attainable standard of health, para. 73 (b).

52 See Committee on Economic, Social and Cultural Rights, general comment No. 14, para. 19.

53 WHO, Leading the realization of human rights to health and through health: Report of the High-

Level Working Group on the Health and Human Rights of Women, Children and Adolescents (2017),

p. 15.

35. The human rights framework helps to further clarify the responsibilities of States

regarding universal health coverage to: (a) ensure the participation of stakeholders in the

design of policies to implement universal health coverage;54 (b) refrain from inappropriate

health resource allocation that would disproportionately favour expensive curative health

services, which are often accessible only to a small, privileged fraction of the population,

over primary and preventive health care benefiting a far larger part of the population; (c)

adopt legislative and other measures ensuring equal access to health care and health-related

services provided by third parties;55 (d) ensure that availability, accessibility, acceptability

and quality of health facilities, goods and services are not undermined by health sector

privatization;56 and (e) uphold and implement the right to social security, including the

implementation of social protection floors, as part of measures to ensure financial risk

protection.57

4. Accountability for health

36. In the 2030 Agenda, the General Assembly foresees a robust, voluntary, effective,

participatory, transparent and integrated follow-up and review framework to support

national implementation and to maximize and track progress to ensure that no one is left

behind. It aims to promote accountability, support effective international cooperation and

foster the exchange of best practices and mutual learning.58 A global indicator framework,

including for the health-related Goals, has since been developed by the Inter-Agency and

Expert Group on Sustainable Development Goal Indicators, endorsed by the Statistical

Commission and adopted by the General Assembly. 59 It is to be complemented by

indicators at the regional and national levels. OHCHR has underscored the need for a robust

accountability mechanism at the global level under the high-level political forum on

sustainable development, and for the forum’s voluntary national reviews and thematic

reviews to draw systematically on information and recommendations from the United

Nations human rights mechanisms. Moreover, as recognized in the 2030 Agenda,

accountability in the private sector should be ensured based on the Guiding Principles on

Business and Human Rights.60

37. Accountability is a complex, multidimensional concept. Human rights-based

accountability requires numerous forms of review and oversight and fostering of the

accountability of multiple actors at various levels, both within and beyond the health

sector. 61 Accountability comprises at least three fundamental components: monitoring,

independent review and remedial action.62 Effective monitoring is critical, not as an end in

itself, but as a tool for measuring progress and improving accountability. Each of these

components is indispensable and has a discrete role to play in strengthening

accountability.63

38. Challenges around ensuring accountability for health include the failure to

differentiate between these components, with the result that one or more may be neglected,

54 Submission by Health Poverty Action, p. 4.

55 See Committee on Economic, Social and Cultural Rights, general comment No. 14, para. 35.

56 Ibid.

57 See International Covenant on Economic, Social and Cultural Rights, art. 9; ILO Social Security

(Minimum Standards) Convention, 1952 (No. 102); ILO Social Protection Floors Recommendation,

2012 (No. 202); ILO Medical Care Recommendation, 1944 (No. 69); and ILO Medical Care and

Sickness Benefits Convention, 1969 (No. 130).

58 See General Assembly resolution 70/1, paras. 72–73.

59 General Assembly resolution 71/313.

60 See General Assembly resolution 70/1, para. 67.

61 See A/HRC/21/22, paras. 74–75.

62 Commission on Information and Accountability for Women’s and Children’s Health, “Keeping

promises, measuring results”, p. 7; Independent Accountability Panel, 2016: Old Challenges, New

Hopes, Accountability for the Global Strategy for Women’s and Children’s and Adolescents’ Health,

pp. 9–11; and A/HRC/21/22.

63 Carmel Williams and Paul Hunt, “Neglecting human rights: accountability, data and Sustainable

Development Goal 3”, International Journal of Human Rights, vol. 21, No. 8 (2017), pp. 1118 and

1120.

as tends to happen with review in the context of development and global health, or

conflated with accountability.64 Effective monitoring, review and, ultimately, accountability,

are dependent on high quality data, disaggregated, for instance, by age, sex, geographic

location, ethnicity, socioeconomic status and other factors, as nationally applicable.

Assessing whether the targets under the Sustainable Development Goals have been met will

be equally dependent on the quality and availability of such data, two areas where major

gaps, particularly at the country level, have been identified. With regard to identifying key

populations vulnerable to HIV, for instance, stigma remains an obstacle to comprehensive

data collection, with these populations being inadequately accounted for.65

39. The use of indicators is a key element of human rights-based monitoring, and the

indicator framework for the Sustainable Development Goals has been assessed as

“capturing only a partial measure of the impact that Goal 3 may have on people’s right to

health entitlements and duty bearers’ corresponding obligations” and not reflecting the full

extent to which health-related rights are upheld.66 Consequently, right to health indicators

are necessary to facilitate the thorough-going monitoring that would yield the information

necessary for competent review and remedial action. Recourse to human rights norms also

places a duty on States to cooperate towards capacity-building for data collection.

40. The High-Level Working Group on the Health and Human Rights of Women,

Children and Adolescents recommended that all States should ensure that national

accountability mechanisms (for example, courts, parliamentary oversight, patients’ rights

bodies, national human rights institutions and health sector reviews) are appropriately

mandated and resourced to uphold human rights to health and through health.67 At the

national level, accountability can be enhanced through the establishment or strengthening

of transparent, inclusive and participatory processes and mechanisms, with jurisdiction to

recommend remedial action. Such mechanisms and processes include courts or quasi-

judicial and non-judicial bodies, complaints mechanisms within the health system, patients’

rights associations, national human rights institutions and professional standards

associations. 68 Accountability is further strengthened by international human rights

mechanisms, such as the human rights treaty bodies, the special procedures of the Human

Rights Council and the universal periodic review, and regional mechanisms.

5. Participation

41. According to the General Assembly, the 2030 Agenda is a plan of action for people,

planet and prosperity, which all countries and stakeholders, acting in collaborative

partnership, will implement. Target 16.7 of the Sustainable Development Goals is to ensure

responsive, inclusive, participatory and representative decision-making at all levels. The

participation of rights holders and other stakeholders in the development, implementation

and monitoring of policy is not only an imperative of the democratic process but also a

prerequisite for effective policymaking, as it facilitates public health responses that are

relevant to the context and ensures that interventions reach the most affected

communities. 69 Promoting health must involve effective community action in setting

64 Ibid.

65 Sara L.M. Davis, “The uncounted: politics of data and visibility in global health”, International

Journal of Human Rights, vol. 21, No. 8 (2017), p. 1149.

66 Carmel Williams and Paul Hunt, “Neglecting human rights: accountability, data and Sustainable

Development Goal 3”, International Journal of Human Rights, vol. 21, No. 8 (2017), p. 1129.

67 WHO, Leading the realization of human rights to health and through health: Report of the High-

Level Working Group on the Health and Human Rights of Women, Children and Adolescents (2017),

p. 48, recommendation 7.

68 Jyoti Sanghera and others, “Human rights in the new Global Strategy”, British Medical Journal, vol.

351, supplement 1 (September 2015), p. 44; and Committee on Economic, Social and Cultural Rights,

general comment No. 14 (2000) on the right to the highest attainable standard of health, paras. 59–62.

69 See, for example, Joint United Nations Programme on HIV/AIDS (UNAIDS), “Non-discrimination

on responses to HIV” (2010), paras. 18–22; Committee on Economic, Social and Cultural Rights,

general comment No. 14 (2000) on the right to the highest attainable standard of health, para. 54;

European Union Agency for Fundamental Rights, Challenges facing civil society organisations

working on human rights in the EU (Luxembourg, 2017), p. 39.

priorities, making decisions, planning, implementing and evaluating strategies to achieve

better health.70

42. Civil society organizations play a vital role in holding authorities to account,

reaching populations and communities that are frequently overlooked, and advocating for

their rights. Recent trends towards restrictions on civic space, particularly limitations on the

activities of civil society organizations, constitute a significant challenge to ensuring the

effective participation of a wide range of stakeholders. Examples of restrictions include

legislative and bureaucratic barriers, including onerous registration requirements, the

harassment, intimidation and killing of advocates, censorship and the use of criminal

legislation to penalize health workers, currently widespread in certain conflict situations.71

43. The Special Rapporteur on health refers to an unbalanced approach to human rights,

where undue restrictions in the enjoyment of civil and political rights undermine the full

realization of the right to health, leading to a failure to implement the principles of

participation and empowerment, and undermining the crucial role that civil society can play

in promoting societal health and well-being.72 In the context of promoting human rights

within the European Union for example, civil society organizations have noted that

limitations include: a lack of clarity and transparency regarding who is consulted before

decisions are made; no systematic consultation of all key players; limited access to

information on policy or legal initiatives; and a lack of awareness of the various modes and

methods of involving stakeholders in law and policymaking in a meaningful and effective

way.73

44. In order to ensure meaningful participation, the full spectrum of stakeholders must

be recognized, and those who are typically excluded from participatory processes, such as

persons with disabilities, children, youth and adolescents, women, older persons and

persons living in remote or rural areas, must be included. Examples of human rights-based

interventions include: (a) ensuring an enabling regulatory, administrative and financial

environment for civil society organizations; (b) building, through education and awareness-

raising, the capacity of rights holders to participate and to claim their rights; (c) ensuring

that transparent and accessible mechanisms for engaging stakeholders’ participation and

facilitating regular communication between rights holders and health-service providers are

established and/or strengthened at the community, subnational and national levels; and (d)

ensuring stakeholders’ participation in priority setting, in policy and programme design,

implementation, monitoring and evaluation and in accountability mechanisms.

V. Emerging good practices

45. The call for contributions towards the present report elicited a large number of

submissions, including examples of what could be considered as emerging good practices.

Due to space constraints, several emblematic examples are highlighted below, and all the

submissions may be viewed on the OHCHR website.

46. The criteria proposed for the characterization of good health practices by the Special

Rapporteur on health in 2003 are helpful in understanding whether a good health practice

also amounts to a right to health good practice. From the perspective of the right to health, a

good practice must: demonstrably enhance an individual’s or group’s enjoyment of one or

more elements of the right to health; pay particular attention to groups in vulnerable

situations; and be consistent with the enjoyment of all human rights in process and

outcome.74 Practices that meet the above-mentioned criteria also enhance the availability,

accessibility, acceptability and quality of health facilities, goods and services, the active and

70 See Committee on Economic, Social and Cultural Rights, general comment No. 14, para. 54.

71 World Alliance for Citizen Participation (CIVICUS), “People power under attack: findings from the

CIVICUS Monitor” (April 2017).

72 See A/HRC/29/33, para. 58.

73 European Union Agency for Fundamental Rights, Challenges facing civil society organisations

working on human rights in the EU (Luxembourg, 2017), pp. 39–40.

74 See A/58/427, para. 45.

informed participation of individuals and groups in health policies, programmes and

projects and the right to health monitoring and accountability mechanisms that are effective,

transparent and accessible.75

Enhancing the enjoyment of the right to health

47. The United Nations Population Fund (UNFPA) provided an example of expanding

access to care for the poorest and most marginalized women and girls living with obstetric

fistula. In 2009, Comprehensive Community Based Rehabilitation in Tanzania came

together with UNFPA and Vodacom, a mobile telecommunications technology company, to

work on a project to help women and girls gain access fistula repair surgery through the M-

Pesa mobile telephone money transfer service. The free fistula surgery provided by

Comprehensive Community Based Rehabilitation in Tanzania is now accessible to many

women and girls for whom the high costs of transport were previously prohibitive. Using

mobile-to-mobile banking technology, funds can now be transferred to fistula patients to

cover this cost, with the help of community-based outreach workers, or “ambassadors”,

who identify and assist woman and girls living with fistula in their local communities.

UNFPA reports that, since the project was launched, the number of women receiving fistula

treatment has grown exponentially.76

Focus on groups in vulnerable situations

48. Morocco has integrated human rights and ethics into training on HIV and syphilis

testing in prisons provided to doctors, dentists and psychologists.77 In Mexico, following a

qualitative study on stigma and discrimination in health centres, building on health

personnel testimonies, training material for health personnel was developed to address

stigma and discrimination.78

Availability of health facilities, goods and services

49. With regard to enhancing the availability of medicines, following the addition of

new medicines (for the treatment of hepatitis C, tuberculosis and cancers) to the WHO

Model List of Essential Medicines, in 2017, Malaysia issued a government-use licence for

direct acting antivirals to allow the import of generic versions of Sofosbuvir, a hepatitis C

drug.79

Accessibility

50. In Morocco, the Minister of Health has established a package of services dedicated

to women and child victims of violence, to which all Moroccan nationals and all migrants,

regardless of their migratory status, have access. In 2017, South Africa launched a national

HIV plan, which is aimed at significantly reducing infection rates, discrimination and

stigma by providing information, psychosocial support and treatment to all members of the

lesbian, gay, bisexual, transgender and intersex community.80 In 2017, Denmark removed

self-identification as transgender from its list of mental health conditions, an important

contribution to addressing the stigmatization and pathologization of diverse gender

identities. 81 In Portugal, decriminalization of drug use has been helpful in decreasing

stigmatization, and ensuring access to health services for all, without discrimination.82

51. Accessibility also means economic accessibility of health facilities, goods and

services. In Australia, the National Immunisation Programme is a joint initiative of the

Commonwealth Government and state and territory governments. Providing free vaccines

75 Ibid., para. 53.

76 Submission by UNFPA, pp. 4–5.

77 Submission by Morocco, p. 10.

78 Submission by Mexico, p. 4.

79 Submission by the Major Group for Children and Youth, p. 2.

80 Submission by the International Lesbian, Gay, Bisexual, Trans and Intersex Association, p. 10.

81 Ibid., p. 3.

82 Submission by Students for Sensible Drug Policy, p. 1.

through primary health-care providers, the Programme facilitates the provision of vaccines

against 17 diseases, including measles, diphtheria, whooping cough, human papillomavirus

and meningococcal C, which children, families and older persons can access at no cost.83 In

2012, reforms to the health system of Mexico improved access to health coverage, making

available the people’s health insurance scheme, offering universal access to a

comprehensive package of personal health services with financial protection.84

52. With regard to accessibility of health information, France has introduced the Nutri-

Score nutrition-labelling scheme, which is aimed at improving nutritional information on

packaging, thus guiding consumers towards choosing foods with higher nutritional value.

Cultural acceptability of health facilities, goods and services

53. In Mexico, health-care staff are trained to provide care that is culturally appropriate

care for all the different sections of the population. Health-care protocols paying particular

attention to indigenous women have been prepared, reclaiming traditional practices of

indigenous midwives.85 Australia has published the National Aboriginal and Torres Strait

Islander Health Plan 2013–2023, which provides an overarching framework for the delivery,

by the health system, of primary, secondary and tertiary health care that is evidence-based,

culturally safe, of high quality, responsive and accessible for the relevant rights holders,

without discrimination or racism. Additionally, the Cultural Respect Framework for

Aboriginal and Torres Strait Islander Health 2016–2026 embeds cultural respect principles

into the Australian health system by building the cultural competence of mainstream

primary health-care services and supporting the ongoing viability of indigenous-specific

health services.86

Monitoring and accountability for the right to health

54. In Ecuador, the Office of the Ombudsman has a constitutional mandate to protect

and promote the human rights of all citizens, including by protecting the right to health. In

this regard, it has taken action, both at the national and regional levels, to protect rights

holders whose right to health has been violated.87

Community participation

55. In their joint submission, Aidsfonds and the International HIV/AIDS Alliance

emphasize that community-led organizations of persons living with HIV, key populations

and other affected communities have played a critical role in overcoming many of the

major challenges in the HIV response, reaching persons most affected by HIV with critical

HIV-prevention services, providing support for adherence to treatment and other essential

health services and advocating for resources and the human rights of persons living with

and affected by HIV. Examples of community responses in this area include

mothers2mothers, a South African community-led initiative that has reached 1.2 million

women living with HIV in nine countries. One major element of the work of

mothers2mothers is the training of mothers living with HIV as mentors, supporting and

advising pregnant women, and assisting them with access to services to prevent mother-to-

child transmission of HIV.88

VI. Conclusion

56. The 2030 Agenda for Sustainable Development is firmly anchored in human

rights principles and standards. Consequently, human rights provide the normative

context and international standards for the implementation of Sustainable

83 Submission by Australia.

84 Submission by Mexico, p. 2.

85 Ibid.

86 Submission by Australia, p. 4.

87 Submission by Office of the Ombudsman, Ecuador.

88 Joint submission by Aidsfonds and the International HIV/AIDS Alliance, pp. 2–3.

Development Goal 3 and the other health-related Goals, with the dignity and agency

of rights holders at its centre. The right to health framework can help to address some

of the key challenges in implementing health-related Goals, including: enhancing the

health of women, girls and adolescents; operationalizing the pledge to leave no one

behind through the overarching duty to eliminate discrimination and marginalization;

and securing universal health coverage. Strong leadership and determined actions to

fully respect, protect and fulfil the right to health, ensure effective participation and

strengthen accountability would contribute significantly to the effective

implementation and achievement of the health-related Sustainable Development Goals.