Transactions of the Royal Society of Tropical Medicine and Hygiene (2006) 100, 603—607

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LEADING ARTICLE

The human right to the highest attainable standardof health: new opportunities and challengesPaul Hunt ∗UN Special Rapporteur on the right to the highest attainable standardof health

The Human Rights Centre, University of Essex, Colchester, Essex, CO4 3SQ, UK and University of Waikato, New Zealand

KEYWORDSHuman rights;The right to health;Poverty reduction;Neglected diseases;UN SpecialRapporteur;US—Peru tradenegotiations

Summary The health and human rights communities have much in common. Recently, theinternational community has begun to devote more attention to the right to the highest attain-able standard of health (‘the right to health’). Today, this human right presents health andhuman rights professionals with a range of new opportunities and challenges. The right tohealth is enshrined in binding international treaties and constitutions. It has numerous ele-ments, including the right to health care and the underlying determinants of health, such asadequate sanitation and safe water. It empowers disadvantaged individuals and communities.If integrated into national and international policies, it can help to establish policies that aremeaningful to those living in poverty. The author introduces his work as the UN Special Rap-porteur on the right to health. By way of illustration, he briefly considers his interventionson Niger’s Poverty Reduction Strategy, Uganda’s neglected (or tropical or poverty-related) dis-eases, and the recent US—Peru trade negotiations. With the maturing of human rights, healthprofessionals have become an indispensable part of the global human rights movement. Whilehuman rights do not provide magic solutions, they have a constructive contribution to make.The failure to use them is a missed opportunity of major proportions.© 2006 Royal Society of Tropical Medicine and Hygiene. Published by Elsevier Ltd. All rightsreserved.

1. Introduction

The health and human rights communities have much incommon. Both are animated by the well-being of individ-uals and populations. In both communities, many have aparticular preoccupation with discrimination and disadvan-tage. While human rights violations often lead to highermorbidity and mortality, health programmes have a cru-cial contribution to make towards the realization of human

∗ Tel.: +44 1206 872558; fax: +44 1206 873627.E-mail address: paulhunt28@yahoo.co.uk

rights. Increasingly, health and human rights professionalsare recognizing their common interests and mutually rein-forcing goals.

The last few years have seen some remarkable develop-ments in the field of international human rights. For somedecades, the international community focused on classiccivil and political rights — the prohibition against torture,the right to a fair trial, freedom of speech and so on. But,since the late 1990s, the international community has begunto devote more attention to economic, social and culturalrights — the rights to education, food and shelter, as well asthe right to the highest attainable standard of physical andmental health (Yamin, 2005).

0035-9203/$ — see front matter © 2006 Royal Society of Tropical Medicine and Hygiene. Published by Elsevier Ltd. All rights reserved.doi:10.1016/j.trstmh.2006.03.001

604 P. Hunt

As the right to the highest attainable standard of healthmigrates from the margins to the human rights mainstream,it presents human rights and health professionals with arange of new opportunities and challenges (Gruskin et al.,2005; UNDP, 2000; WHO, 2002).

2. What is the right to the highest attainablestandard of health?

The right to the highest attainable standard of health is cod-ified in numerous legally binding international and regionalhuman rights treaties (E/CN.4/2003/58). (The full name ofthe right is ‘the right of everyone to the enjoyment of thehighest attainable standard of physical and mental health’.For convenience, this is often shortened to the ‘right tothe highest attainable standard of health’ or the ‘right tohealth’.) These binding treaties are beginning to generatecase law and other jurisprudence that shed light on thescope of the right to health. The right is also enshrinedin numerous national constitutions: over 100 constitutionalprovisions include the right to health or health-relatedrights. Moreover, in some jurisdictions constitutional pro-visions on the right to the highest attainable standard ofhealth have generated significant jurisprudence (for exam-ple, the Ecuadorian case of Mendoza and others v Ministry ofPublic Health and the Director of the HIV-AIDS National Pro-g

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obligations demand effective mechanisms of accountability.The combined effect of these three dimensions — standards,obligations and accountability — is the empowerment ofvulnerable individuals and disadvantaged communities.

While the right to the highest attainable standard ofhealth is a powerful campaigning and advocacy tool, it ismore than just a slogan. Additionally, it has normative depthand something constructive and concise to say to policy-makers. The right can help to ensure that health policiesdevote special attention to the vulnerable and disadvan-taged, enhance community participation, ensure that healthinterventions strengthen health systems, and so on. If inte-grated into national and international health policy-making,the right to health can help to establish policies that arerobust, sustainable, equitable and meaningful to those liv-ing in poverty.

3. The UN Special Rapporteur on the right tothe highest attainable standard of health

A UN Special Rapporteur is an independent expert appointedto promote and protect human rights. Some Special Rappor-teurs are appointed to focus on human rights in a particularcountry, such as Myanmar. Some are appointed to focus ona particular human rights theme, such as violence againstwomen. And some are appointed to promote and protect asa

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ramme, Resolucion No. 0749-2003-RA, 28 January 2004).While the right to health includes the right to health care,

t goes beyond health care to encompass the underlyingeterminants of health, such as safe drinking water, ade-uate sanitation and access to health-related information.he right includes freedoms, such as the right to be free fromiscrimination and involuntary medical treatment. It alsoncludes entitlements, such as the right to essential primaryealth care. The right has numerous elements, includinghild health, maternal health and access to essential drugs.ike other human rights, it has a particular concern for theisadvantaged, the vulnerable and those living in poverty.he right requires an effective, inclusive health system ofood quality.

International human rights law is realistic and recog-izes that the right to the highest attainable standardf health for all cannot be realized overnight. Thus, theight is expressly subject to both progressive realizationnd resource availability. Although qualified in this way,onetheless the right to health imposes some obligationsf immediate effect, such as non-discrimination, and theequirement that the State at least prepares a nationallan for health care and protection. The right demandsndicators and benchmarks to monitor the progressiveealization of the right. It also encompasses the activend informed participation of individuals and communitiesn the health decision-making that affects them. Undernternational human rights law, developed states haveome responsibilities towards the realization of the righto health in poor countries. Crucially, because the righto health gives rise to entitlements and obligations, itemands effective mechanisms of accountability.

At root, the right to the highest attainable standardf health consists of globally legitimized standards; outf these standards derive legal obligations, and these

pecific human right, such as the right to the highest attain-ble standard of health.

Special Rapporteurs are neither employed nor paid byhe UN. Nor do they represent any country. They are inde-endent experts reporting to the UN Commission on Humanights (at the time of writing, it is anticipated that the UNuman Rights Council will shortly replace the UN Commis-ion on Human Rights). Some also report to the UN Generalssembly. With scant resources, their only sanction is tolace their findings, concerns and recommendations in theublic domain.

For many years, the UN appointed Special Rapporteurs toocus on the classic civil and political rights, such as free-om of religion and the prohibition against torture. Onlyore recently has it appointed experts to focus on eco-

omic, social and cultural rights, the first being the Specialapporteur on the right to education, who was appointed

n 1998. Two others soon followed — on the right to foodnd the right to adequate housing. In 2002, the UN decidedo appoint a Special Rapporteur on the right to the high-st attainable standard of health. Supported by civil societyrganizations, Brazil led the campaign to establish this posi-ion. Two countries voted against it: the United States andustralia. Following the UN’s decision, I was nominated tohe position by New Zealand and appointed in 2002 by thehairperson of the UN Commission on Human Rights for aerm of three years, now renewed until 2008.

In brief, the Special Rapporteur is asked to help states,nd others, better promote and protect the right to theighest attainable standard of health (UNHCHR, 2003). Toive some shape to the mandate, my first report identifieshree key objectives: to promote — and encourage otherso promote — the right to health as a fundamental humanight; to clarify the scope of the right to health; and to iden-ify good practices for the operationalization of the right

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to health at community, national and international levels(E/CN.4/2003/58). I pursue these three objectives by focus-ing on two inter-related themes: poverty and discrimination.

Each year I submit written and oral annual reports tothe UN General Assembly and another to the UN Commis-sion on Human Rights. In each report I select one or moreissues that I then examine through the prism of the right tohealth. To date, these annual reports have looked at a rangeof issues, including the health-related Millennium Develop-ment Goals (A/59/422), the skills drain of health profes-sionals (A/60/348), sexual and reproductive health rights(E/CN.4/2004/49), indigenous peoples (A/59/422), mentaldisability (E/CN.4/2005/51), and others.

I also undertake two country missions each year. Hith-erto, country missions have been undertaken to — andreports have been completed on — Mozambique (E/CN.4/2005/51/Add.2), Peru (E/CN.4/2005/51/Add.3), Romania(E/CN.4/2005/51/Add.4) and Uganda (E/CN.4/2006/48/Add.2). One mission was not to a country but to the WorldTrade Organization to examine important global issues —trade liberalization, patents — that impact on the right tohealth in all states (E/CN.4/2004/49/Add.1). Another dis-tinctive report is on Guantanamo Bay (E/CN.4/2006/120). Amission to Sweden in January 2006 has not yet generated areport.

During a country mission, my practice is to visit poor ruralareas and meet with civil society organizations, includinghealth professional associations, as well as ministers and

By way of illustration, the following paragraphs brieflysignal three issues that are addressed more fully in my UNreports.

3.1. Niger’s poverty reduction strategy

One of my reports to the UN Commission on Human Rightsbriefly considers Niger’s Poverty Reduction Strategy (PRS)through the prism of the right to health (E/CN.4/2004/49,paras 57—75).

The report commends a number of the public health fea-tures of the PRS, such as the objective of ensuring thatessential, high-quality medicines are available at afford-able prices, a goal that reflects Niger’s international rightto health obligations.

Additionally, however, the report draws attention tosome issues in the PRS that, had the right to health beentaken into account when the PRS was prepared, wouldhave been addressed somewhat differently. From a rightto health perspective, for example, a pro-poor health pol-icy should include education and information campaignsconcerning the main health problems in local communi-ties, including methods of prevention and control. Also,explicit attention should be given to the health situationof all marginal groups in the jurisdiction, including racialand ethnic minorities. Further, the right to health requiresthat transparent, accessible and effective monitoring andahuoP

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senior public officials. I try to get a balanced view by visitingfine health facilities as well as those that are less impres-sive. At the end of each mission I hold a press conferenceto raise the profile of some of the key health issues in thejurisdiction.

Although a mission takes months of work — research,preparation, the mission itself and writing the report — thereport is only some 25 pages. No country mission report iscomprehensive. Usually, I select a small handful of strategichealth issues and focus on them, identifying recommenda-tions for the Government and other actors, including (inappropriate cases) the donor community. After my oral pre-sentation of the written country report to the UN Commis-sion on Human Rights, the State concerned has a right ofreply.

Special Rapporteurs frequently receive informationalleging human rights abuses falling within their mandate.The information comes from victims, their families andcivil society organizations. Unfortunately, I do not have theresources to respond to all the complaints I receive. To date,I have taken up about 75 cases with about 40 states. Thesecomplaints have included: the persecution of health workerson account of their professional activities; discrimination onthe basis of health status, including HIV/AIDS; the abusivetreatment of mental health patients; the denial of healthservices to migrant workers; and non-consensual medicaltreatment. At the end of each year, a report summarizesthe cases taken up with states and any replies received(E/CN.4/2005/51/Add.1 and E/CN.4/2006/48/Add.1).Occasionally, I will publicize an especially serious healthsituation without waiting for the end of year report. InMarch 2004, for example, in collaboration with seven otherUN human rights experts, I drew attention to the deepeninghumanitarian and health crisis in Darfur.

ccountability mechanisms be established, providing rights-olders (for example, individuals) with an opportunity tonderstand how duty-bearers (for example, ministers andfficials) have discharged their obligations in relation to theRS.

Although a commendable poverty reduction strategy,rom the right to health perspective, Niger’s PRS did notive sufficient attention to these (and some other) issues.

.2. Uganda’s neglected diseases

n 2004, I was invited by the Government of Ugandao visit and prepare a report on neglected diseases andhe right to the highest attainable standard of healthE/CN.4/2006/48/Add.2). ‘Neglected diseases’ was theerm used during the mission to refer to tropical or poverty-elated diseases that are mainly suffered by poor peoplen poor countries. As is well known, in Uganda these dis-ases include onchocerciasis, African trypanosomiasis andymphatic filariasis.

Examining Uganda’s neglected diseases through the lensf the right to health underlines the importance of a num-er of policy responses. First, it underscores the impera-ive of developing an integrated health system responsiveo local priorities. Vertical interventions that focus on onearticular disease can actually weaken the broader healthystem. While there might be a place for some vertical inter-entions, they must be designed to strengthen, not under-ine, an integrated health system. Second, village health

eams are urgently needed to identify local health priori-ies. Their local knowledge about the prevalence of diseasen the community will enhance the perspectives providedy a health official from the regional or national capital.hird, of course more health professionals are essential,

606 P. Hunt

but also incentives are needed to ensure that the healthworkers are willing to serve these remote neglected com-munities. Fourth, there are myths and misconceptions aboutthe causes of neglected diseases: these can be dispelledby accessible public information campaigns. Fifth, some ofthose suffering from neglected diseases are stigmatized anddiscriminated against: this, too, can be tackled by evidence-based information and education. Sixth, the internationalcommunity and pharmaceutical companies also have respon-sibilities to provide needs-based research and developmenton neglected diseases, as well as other assistance. Sev-enth, effective monitoring and accountability devices mustbe established. Existing parliamentary and judicial account-ability mechanisms are not enough in relation to those dis-eases mainly affecting the most disadvantaged. In my reportI suggest a way of enhancing accountability in relation toneglected diseases in Uganda.

Neglected diseases mainly afflict neglected communities.It was the right to health analysis — and its preoccupationwith disadvantage — that led, in the first place, to the iden-tification of this neglected issue as a serious right to healthproblem demanding much greater attention.

The UNICEF/UNDP/World Bank/WHO Special Programmefor Research and Training in Tropical Diseases has commis-sioned research on neglected diseases and human rights; itis anticipated that this study will be available later this year(Hunt et al., 2006).

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Peru’s ability to use the public health safeguards enshrinedin TRIPS and the Doha Declaration.

The mission report urges Peru to take its human rightsobligations into account when negotiating the bilateraltrade agreement. Before any agreement is finalized, assess-ments should identify the likely impact of the agreementon the enjoyment of the right to health, including accessto essential medicines and health care, especially of thoseliving in poverty. From the human rights perspective, all thenegotiations must be open, transparent and subject to pub-lic scrutiny.

Also, in accordance with its human rights responsibil-ity of international cooperation, the United States shouldnot apply pressure on Peru to enter into commitments thateither are inconsistent with Peru’s constitutional and inter-national human rights obligations, or by their nature are‘WTO-plus’.

These — and other arguments in the mission report —were reinforced by press releases in July 2004 and July 2005as the negotiations continued (see 5 July 2004 and 13 July2005 at http://www2.essex.ac.uk/human rights centre/rth/pressreleases.shtm).

In June 2005, the Peruvian Ministry of Health released astudy on the potential effects of an eventual US—Peru tradeagreement on access to medicines. The study revealed thatbetween 700 000 and 900 000 people would be left excludedfrom accessing medicines without an increase in the bud-get of the Ministry of Health or an increase in householdirlr

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.3. US—Peru trade agreement

y country report on Peru covers a range of healthssues, including sexual and reproductive health, mentalealth, environmental health, ethnicity and culture, and theS—Peru trade agreement (E/CN.4/2005/51/Add.3). At theime of the mission in June 2004, Peru was engaged in nego-iations towards a bilateral trade agreement with the Unitedtates. While the prospective agreement covered a numberf issues, the mission report focuses on the potential impactf the trade agreement on access to essential medicines ineru.

Crucially, the Constitution of Peru protects the right toealth. Also, Peru has ratified a number of binding interna-ional human rights treaties that enshrine the right to healthnd encompass access to affordable essential medicines,ncluding for those living in poverty. The primary aim of theeport was to try to ensure that these constitutional andnternational provisions were given proper attention in theegotiating process.

The report expresses concern that the bilateral tradegreement may result in ‘WTO-plus’ restrictions, includingew patent and registration regulations that impede accesso essential medicines, such as antiretrovirals for people liv-ng with HIV/AIDS. The report also stresses the human rightsesponsibility of countries to make use of the safeguardsvailable under the Agreement on Trade-Related Aspects ofntellectual Property Rights (TRIPS) and the Doha Declara-ion on the TRIPS Agreement and Public Health — such asompulsory licences — to protect public health and promoteccess to medicines. After all, TRIPS and the Doha Decla-ation allow countries to protect public health. Thus, theonclusion of a bilateral trade agreement should not restrict

ncome for the poor. The first year of the agreement wouldequire an additional increase in spending of US$34.4 mil-ion, of which US$29 million would fall on families and theest on the Ministry of Health.

In the press release of July 2005, I welcomed the Ministryf Health’s impact assessment, again warned all parties ofhe effects of the bilateral trade agreement on the right toealth, and urged the Government to introduce complemen-ary measures to protect the poor from bearing the costs ofhe agreement. The Ministry of Health study proposes thereation of a fund for medicines, the fund being drawn fromectors benefiting from the agreement.

Although my country report and press releases on theilateral trade agreement certainly generated considerableedia interest in Peru, I leave others to judge the effect, if

ny, of human rights arguments on the actual negotiations.n any event, it was important that the governments of Perund the United States, as well as civil society, were fullyware that the bilateral trade negotiations would have aital bearing upon the enjoyment of the fundamental humanights of many individuals and families, including those livingn poverty.

With the text recently completed, Peru’s legislature nowas an opportunity to consider the human rights dimensionsf the agreement. It remains to be seen whether or not thegreement will also be challenged in the Peruvian courts onuman rights grounds.

. Conclusion

right to health approach — whether to poverty reduc-ion (Niger), neglected diseases (Uganda) or trade (Peru)

does not imply a radically new departure. Rather, it is

The human right to the highest attainable standard of health 607

likely to reinforce and enhance elements already existing inmany policies, programmes and projects. The Governmentof Uganda, for example, already has a number of policiesthat will help to tackle neglected diseases. Nonetheless, anexamination of the problem through the right to health lenscan provide insights, and signal measures, that sharpen anddeepen existing initiatives.

Increasingly, the right to the highest attainable standardof health presents health and human rights professionalswith new opportunities and challenges.

The traditional techniques and skills that have served thehuman rights community so well for many years — ‘namingand shaming’, letter-writing campaigns, taking test cases tocourt, and so on — will not be sufficient to ensure that theright to health is integrated into national and internationalhealth policy-making. Quite apart from expertise in the fieldof health, additional techniques and skills are needed. Forexample, selecting priorities and making trade-offs are partof the inescapable reality of policy-making. So human rightsproponents will have to clarify how to select priorities in away that is respectful of the right to health. They will haveto clarify how to identify which trade-offs are permissibleand which are not from the human rights point of view. Theywill also have to develop and use new tools, such as humanrights impact assessments and human rights indicators andbenchmarks (Humanist Committee on Human Rights, 2006;E/CN.4/2006/48). Of course, the traditional human rightstechniques remain vitally important. But they are no longer

References

Gruskin, S., Annas, M., Grodin, M., Marks, S., 2005. Perspectives onHealth and Human Rights. Routledge, New York.

Humanist Committee on Human Rights, 2006. Health Rightsof Women Impact Assessment Instrument. http://www.hom.nl/english/publications.php#wr [accessed 21 March 2006].

Hunt, P., with Steward, R., Mesquita, J., Oldring, L., 2006.Neglected Diseases: A Human Rights Analysis in prepara-tion for Special Topics in Social, Economic and BehaviouralResearch. UNICEF/UNDP/World Bank/WHO Special Programmefor Research and Training in Tropical Diseases, Geneva.

UNDP, 2000. Human Rights and Human Development. Human Devel-opment Report 2000. http://hdr.undp.org/ [accessed 21 March2006].

UNHCHR, 2003. UN Commission on Human Rights resolution2003/28. www.unhchr.ch/Huridocda/Huridoca.nsf/(Symbol)/E.CN.4.RES.2003.28.En?Opendocument [accessed 21 March2006].

WHO, 2002. 25 Questions and Answers on Health and Human Rights.Health and Human Rights Publication series, 1. http://www.who.int/hhr/NEW37871OMSOK.pdf [accessed 21 March 2006].

Yamin, A., 2005. The future in the mirror: incorporating strategiesfor the defense and promotion of economic, social and culturalrights into the mainstream human rights agenda. Hum. Rights Q.27, 1200—1244.

The following Reports to the UN General Assembly (A/59/422 andA/60/348) and to the UN Commission on Human Rights (E/CN.4etc) are available through the following websites:

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enough. Additional skills are needed.Crucially, these new techniques and skills will have to be

developed in close cooperation with health professionals.The right to the highest attainable standard of health can-not be realized without their active engagement. In short,with the maturing of human rights, health professionals havebecome an integral and indispensable element in the globalhuman rights movement.

As never before, national and international human rightsare at the disposal of health professionals. While humanrights do not provide magic solutions, they have a construc-tive contribution to make. The failure to use them is a missedopportunity of major proportions.

Acknowledgements

I am grateful to my colleagues, Judith Mesquita and RajatKhosla, in the Right to Health Unit, University of Essex, UK,for their assistance with this article.

http://www.ohchr.org/english/issues/health/right/annual.htmhttp://www2.essex.ac.uk/human rights centre/rth/

apporteur.shtm[accessed 21 March 2006]:A/59/422.A/60/348.E/CN.4/2003/58.E/CN.4/2004/49.E/CN.4/2004/49/Add.1.E/CN.4/2005/51.E/CN.4/2005/51/Add.2.E/CN.4/2005/51/Add.3.E/CN.4/2005/51/Add.4.E/CN.4/2005/51/Add.1.E/CN.4/2006/48/Add.1.E/CN.4/2006/48/Add.2.E/CN.4/2006/120.