THE UNIVERSAL DECLARATION OF HUMAN RIGHTS
BACKGROUND
Being imprisoned for a lengthy period without trial, everyone would agree, is a violation of human rights. But it would be a joke, and not a very funny one, to assert that your rights had been violated by several months of unexpected foul weather.1 Is suffering from ill health more like wrongful imprisonment, or more like an inhospitable climate? After all, falling ill is generally assumed to be a matter simply of bad luck, unless, as it often is, it is a result of your own lifestyle choices.
But consider Moleen Mudimu, who died of AIDS in Zimbabwe in 2006. For the last year of her life she suffered terribly; her flesh wasted away, and her body was covered with sores and fungal infections. The anti-retroviral drugs that would have restored her to a decent level of fitness and significantly prolonged her life were available in the pharmacy at the end of her road. But she was unemployed and had no money to buy them. In any case, purchasing power had been destroyed by the hyperinflation that has been a feature of President Mugabe’s chaotic rule. Zimbabwe’s previously well-functioning health system had collapsed, and although free treatment was available to a few, demand greatly outstripped supply. So she died.2 She died, it seems, because of a set of other people’s decisions—decisions about the pricing of drugs, patent laws, economic policy, national priorities, and international sanctions. These had structured her environment in a way that made it impossible for her to survive. Paul Farmer calls this “structural violence.”3 Whatever the cause of her condition, it seems perfectly reasonable to say that Moleen Mudimu’s human right to health was violated.
To say this much is to make a moral claim. But it is a claim that is also supported in international law. Article 12 of the International Covenant on Economic, Social, and Cultural Rights (ICESCR) begins:
The States parties to the present Covenant recognize the right of everyone to the enjoyment of the highest attainable standard of physical and mental health.4
This covenant, which came into force in 1976, was a way of giving effect to some of the rights set out in the Universal Declaration of Human Rights (UDHR) of 1948, Article 25(1) of which acknowledges a right to medical care.5
The Universal Declaration of Human Rights was born out of the trauma of the Second World War. In April 1945, in the last weeks before the German surrender, representatives of fifty nations—primarily the Allied nations that had declared war on Germany or Japan—met in San Francisco with the aim of setting up a new international organization, the United Nations.6 Some 3,500 delegates, advisers, and staff spent two months drafting the UN Charter and associated protocols. It is said to have been one of the largest international meetings ever to have taken place. The outcome, the United Nations, was designed as an international forum to deal with disputes among nations, to prevent future wars. Notoriously, the general idea had been tried before after the First World War, with the League of Nations, but its failure to preserve peace gave the parties a greater incentive to get the structures right the second time round. US president Franklin Roosevelt felt this especially keenly, and was determined to ensure that the US would ratify the UN Charter, for its failure to do the same thing for the League of Nations had weakened the League beyond hope.
Roosevelt had earlier, in 1941, famously set out what he believed to be the “four freedoms” all humans beings should enjoy: freedom of speech and expression, freedom of worship, freedom from want, and freedom from fear.7 By the standards of previous declarations of fundamental rights and freedoms, this is an unusual list. Freedom of expression and worship are familiar, but freedom from want and fear stand out as something new. The width of these four freedoms would prove an important inspiration and reference point in drafting the UDHR.
Roosevelt died in April 1945, but momentum began to form behind a human rights agenda for the new United Nations as a shocked world learned of the atrocities of the Nazi regime. Nevertheless, the Great Powers—the US, the UK, and the Soviet Union—were not at all enthusiastic about the idea of an international human rights agreement. After all, the US practiced racial segregation, the UK had a huge, though crumbling, empire, and the Soviet Union had many restrictions on the freedom of its citizens. However, intensive lobbying by Carlos Rómulo of the Philippines, Herbert Evatt of Australia, and philosophy professor Charles Malik of the Lebanese Republic, together with several Latin American states, led to the concerns of less powerful nations and their peoples coming to the fore. Eventually when on June 26, 1945, the UN Charter was completed, it contained provisions for “human rights and for fundamental freedoms for all without distinction as to race, sex, language or religion”—and, crucially, for the foundation of a Human Rights Commission.
Still, it was a long road from the UN Charter of 1945 to the Universal Declaration of 1948. The journey was led through the judicious and inspirational work of Eleanor Roosevelt. But fascinating though it is, this is not the place to retell that story. The points we need to keep in mind are first, that the Universal Declaration has its origins in the shock of the Second World War and in what apparently civilized peoples were capable of doing to one another and to their own citizens, and second, that far from being, as some critics allege, a statement of the principles already followed by the most powerful nations, pressure for universal human rights came from less developed nations. It is amazing that probably every country in the world was, initially at least, in breach of some of the principles it was prepared to endorse.
After innumerable rounds of drafting and redrafting the United Nations finally voted on the Declaration on December 10, 1948. Of the fifty-eight countries that were entitled to vote forty-eight gave their assent, eight abstained—the six members of the Soviet bloc, as well as Saudi Arabia and South Africa—and two were absent. No country voted against, but even more impressively, when the articles were voted on one by one, twenty-three of the thirty were approved unanimously, without abstention. According to Eleanor Roosevelt, the main reason for the abstention of the Soviet Union was that it could not accept the right of everyone to leave his or her country.8 But generally, the Declaration was much more a testament to the aspirations of the oppressed than it was a protection of the power of the wealthy.
DECLARATIONS, COVENANTS,
AND CONSTITUTIONS
Before looking in more detail at the provisions of the Universal Declaration and subsequent covenants, it is worth adding a little more about the origin of another institution which arose in the immediate aftermath of the Second World War, the World Health Organization (WHO). The first chronicle of the WHO, published in 1947, explains its role as an integrated and expanded successor, under the broad framework of the United Nations, to earlier international health organizations.9 The then pressing concerns facing the international community were expressed in a message of support sent by President Truman to the first International Health Conference held in New York in 1946:
Modern transportation has made it impossible for a nation to protect itself against the introduction of disease by quarantine. This makes it necessary to develop strong health services in every country, which must be coordinated through international action.10
However, in its constitution—which it describes as the “Magna Carta of Health”11 —the WHO takes itself as having a much wider objective than preventing the international spread of infectious disease:
The enjoyment of the highest attainable standard of health is one of the fundamental rights of every human being without distinction of race, religion, political belief, economic or social condition.12
And health itself is defined as “a state of complete physical, mental and social well-being and not merely the absence of disease or infirmity.”
The Universal Declaration of Human Rights, itself, though, has a rather more muted, if nevertheless very significant, statement (Article 25(1)) which reads:
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.13
The Universal Declaration recognizes the right to medical care as a determinant of health and well-being, but falls short of the expansive right to health set out by the WHO: it calls for a standard of living “adequate” for health, rather than the “highest attainable standard of health.” It is worth noticing that the Declaration implicitly at least makes the vital distinction between medical care and health. A right to a particular level of health is not the same thing as a right to a particular level of medical care. For one thing, there are very many determinants of health, such as nutrition and sanitation. Accordingly, it may be possible to achieve high levels of health with relatively little expenditure on medical care, or alternatively, high levels of medical care may not be very effective in achieving decent population health. As the Declaration implies, a commitment to health, ideally, requires attention to those factors that will keep people well, rather than merely on the factors such as medical care that may help restore them to health when they fall sick.
However, the story does not stop here. The Declaration was just that: a declaration. Separate discussions were needed to create a binding covenant, and it soon became apparent that not all countries would be prepared to commit themselves to legally binding economic and social rights, as contrasted with less controversial political and civil rights. In 1954, drafts of two covenants were finally completed, one on civil and political rights and the second on economic, social, and cultural rights. It was not until 1966, however, that the covenants were adopted by the UN, and they did not come into force as a formal part of international law until as late as 1976, when they had been ratified by the required number of countries. The first, the International Covenant on Civil and Political Rights (ICCPR), though highly significant, proved rather less contentious, in protecting individuals from forms of discrimination, oppression, and persecution. It has been ratified by the great majority of nations of the world.14 The second, the International Covenant on Economic, Social, and Cultural Rights (ICESCR), has encountered more opposition, and has been ratified by rather fewer countries; indeed, the USA has not done so. But it is this covenant that primarily interests us as it sets out, in Article 12, an elaborate statement of the human right to health:
1. The States parties to the present Covenant recognize the right of everyone to the enjoyment of 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 this 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.15
Two years after the Covenants came into force, in 1978, an International Conference on Primary Health Care took place in Alma-Ata, then in the USSR, now in Kazakhstan. The resulting declaration, signed by 134 countries, began by summarizing the WHO position that:
health, which is a state of complete physical, mental and social well-being, 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.16
Section 5, however, illustrates the dangers in setting targets, even if they are twenty-two years away:
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.
The Alma-Ata conference gave impetus to the right-to-health movement, which was beginning to find its feet.17 What, though, should we say about countries that have not ratified the conventions? Consider, for example, a country that has not ratified the Covenant on Civil and Political Rights. Suppose we then find it is torturing members of the political opposition, and that the international community voices strong protest about human rights abuses. It would hardly seem an adequate response if the president of the country were to respond that the opponents are making a simple legal mistake: human rights conventions are not binding on countries that have not ratified them, and so there are no relevant human rights to violate. Rather, we are likely to believe that such rights now form part of what can be called “international customary law”: morally and legally binding on all countries once there is significant international weight behind them, whatever an individual state’s attitude. In this view, human rights conventions are binding on all nations in the way in which domestic law is binding on all citizens, whether or not they have personally consented to those laws.
PROGRESSIVE REALIZATION
AND CORE OBLIGATIONS
The human right to health is now an established part of international law. Yet looking at the terms in which these declarations and conventions are stated, one may be filled with a sense of hopelessness. What could it mean to guarantee to all the people of the world “the right to the highest attainable standard of health,” especially according to the WHO definition of “complete physical, mental and social well-being”? Does everyone in the world have the right to the health and life expectancy of the Japanese, who currently, as a nation, have the longest life expectancy? How could that be achieved? And do even the Japanese enjoy “complete physical, mental, and social well-being,” especially in light of natural events beyond human control such as the earthquake and tsunami of March 2011? Without a huge increase in budgets, which is not in prospect, attempting to provide everyone with even a more modestly defined right to health could drain resources from other vital areas, such as education and housing. Many critics will view such conventions as no more than fine words and sentiments.
In recognition of the difficulty of resource constraints, the ICESRC adopts the notion of “progressive realization” rather than “full immediate realization” of the rights.18 In 2000 this was further clarified when the Committee on Economic, Social, and Cultural Rights issued the very important General Comment 14 to explain how the human right to health can be approached in practice. The committee, which was constituted in 1985 to monitor compliance with the ICESCR and to issue guidance on its interpretation, understood the difficulties of the task, acknowledging, in Article 5, that the full enjoyment of the right to health is a “distant” and in fact “receding” goal for many millions of people.19
Accordingly, General Comment 14 states that the right to health is not the right to be healthy (Article 8). Nevertheless, the right to health is not merely the right to medical care, which is merely one of the many determinants of health. Healthy living and working conditions, for example, are just as vital (Article 11).
The most important issue is that of resource constraints, and it is accepted that there can be legitimate reasons why a state may not be able fully to realize the right to health. Hence the committee adopted the language of “progressive realization,” which means that a country must take planned and targeted steps toward full realization, but cannot be criticized for not immediately achieving the highest standard of health for its people if that is not attainable. General Comment 14 insists that:
30. . . . States parties have immediate obligations in relation to the right to health, such as the guarantee that the right will be exercised without discrimination of any kind (art. 2.2) and the obligation to take steps (art. 2.1) towards the full realization of Article 12 [of the Covenant on Economic, Social and Cultural Rights]. Such steps must be deliberate, concrete and targeted towards the full realization of the right to health.
The earlier General Comment 3 had clarified the notion of a state’s “minimum core obligations.” In the present context, this instructs that states must use whatever resources they have to supply essential primary health care.20
The position, however, remains somewhat confusing. “Progressive realization” permits a country’s limited resources to provide a valid excuse for limited progress to full realization, whereas the notion of “minimum core obligations” suggests that there is no excuse for failing to achieve a particular level of health care. It may seem that these ideas flatly contradict each other. A very poor country may not be able to provide even basic primary care for all. Does it thereby breach the human right to health of its citizens? But if it can do no more, what purpose can be served by accusing it of human rights violation (as General Comment 3 tacitly admits)? Or is the point that it must seek international assistance, and in signing up to ICESRC wealthy nations have accepted their responsibilities to assist poorer nations in meeting their minimum core obligations? This, in fact, is what General Comment 14 suggests. But it raises one of the central philosophical and legal questions regarding the doctrine of human rights. It is all very well to argue for universal human rights, but who or what has the responsibility to meet those rights, especially when it can be very expensive to do so? This question will preoccupy us throughout this book.
One further development is of particular interest. In 2005, General Comment 17, on the right to benefit from scientific progress, was issued. The committee accepted that there is a human right to benefit from intellectual production, but at the same time points out that particular regimes of copyright law are constructed for social benefit. A pressing concern regards general access to patented medicines. Do states have an obligation to protect intellectual property even if this means that thousands may die prematurely? This, of course, has become the issue of “access to essential medicines” which will also be a recurring theme in this book.21
In summary, the human right to health is now a well-established part of international law, although with some elements in need of further refinement, especially concerning the ideas of progressive realization and core obligations. Having the human right to health inscribed in international law is a vitally important achievement. But it is not enough to silence all critics. What, after all, are the moral foundations of the human right to health? And what does it call for in practice? We will take up these important questions in the next chapter.