- About HHR
Eric A. Friedman
The Framework Convention on Global Health (FCGH), a proposed global treaty to be rooted in the right to health and aimed at health equity, could establish a nuanced, layered, and multi-faceted regime of compliance and accountability to the right to health. In so doing, it would significantly strengthen accountability for the health-related Sustainable Development Goals (SDGs), which it would encompass. Legally binding, the FCGH could facilitate accountability through the courts and catalyze comprehensive domestic accountability regimes, requiring national strategies that include transparency, community and national accountability and participatory mechanisms, and an enabling environment for social empowerment. A “Right to Health Capacity Fund” could ensure resources for these strategies. Inclusive national processes could establish targets, benchmarks, and indicators consistent with FCGH guidance, with regular reporting to a treaty body, which could also hear individual cases. State reports could be required to include plans to overcome implementation gaps, subjecting the poorest performers to penalties and targeted capacity building measures. Regional special rapporteurs could facilitate compliance through regular country visits and respond to serious violations. And reaching beyond government compliance, from capacity building to the courts and contractual obligations, the FCGH could establish nationally enforceable right to health obligations on the private sector.
Universal health coverage, universal access to nutritious food, clean water and sanitation, and adequate housing, and the “pledge that no one will be left behind”: the promises for health in the Sustainable Development Goals (SDGs) are prodigious—and necessary.1 The central unanswered question is in their implementation; universality and leaving no one behind means ending deeply rooted discrimination, changing power structures, and securing significant new funding.
The risk of a great disjuncture between promises and reality notably resembles the present status of the right to health, where continuing profound national and global health inequities bear witness to the chasm between the universal guarantee of the right and the realities of its implementation. Indeed, had this right’s commands received universal adherence, the health-related SDGs would be today’s reality rather than still tomorrow’s promise.
One proposed response to both present and potential implementation gaps is a Framework Convention on Global Health (FCGH), a proposed global treaty grounded in the “right to the enjoyment of the highest attainable standard of physical and mental health,” and aimed at closing health inequities.2 The FCGH would establish standards on rights-based universal health coverage to achieve equitable access to health care and public health services—the promise of the SDGs—along with a national and global health financing framework, absent from the SDGs. The FCGH would seek to empower people to claim their health rights, advance the social determinants of health, and ensure that governments respect and advance the right to health in all policies, all critical to achieving the right to health and the SDGs. The treaty would aim to elevate the right to health in other international legal regimes and sectors, filling in another gap in the SDG agenda. A global health treaty would also ensure that with the diversity of the 17 SDGs, health remains a focus.
As binding law and with the potential to establish a nuanced, layered, and multi-faceted regime of compliance and accountability to the right to health, the FCGH could fill perhaps the most potentially harmful SDG shortfall: an inadequate accountability regime. Without effective accountability, the entire endeavor is at risk.
Paul Hunt has emphasized the need for a formal independent review of the SDGs, with an independent process “one vital feature of accountability.”3 The FCGH could serve this role, even going far beyond the “lean…independent body” that the former Special Rapporteur proposes.4 And in the process, the FCGH could help incorporate the human rights underpinning promised in the 2030 Agenda for Sustainable Development—the UN resolution adopting the SDGs—into the goals’ implementation.5
While not encompassing the entire SDG agenda, the FCGH would fully incorporate goals and targets covering universal access to health services and underlying determinants of health including water, sanitation, food, and housing, along with other targets such as those regarding domestic violence and safe working conditions. It would also address social determinants of health, another significant component of the SDGs, including on equality, gender, education, employment, and violence.
This article will explain how the regime of accountability the FCGH establishes for the right to health and FCGH compliance could be a framework of accountability for the SDGs. In addition to the mechanisms described here, civil society movements that press their governments to comply, while using their expertise to facilitate government action, will be vital to both FCGH and SDG implementation.
These proposals, extending beyond current human rights compliance mechanisms, could form a comprehensive FCGH compliance regime, a “web of accountability.”6 Given the political challenge of securing such a regime, they might be considered a menu of possibilities, though, as argued elsewhere, shared interests in global health security, sustainability, and stewardship, among others, would give states reasons to desire effective right to health accountability.7 These mechanisms could also inform possible global health treaties besides the FCGH, and in some cases merit independent consideration.
Empowering national accountability
Legal accountability: Claiming rights through the courts
As the SDGs are non-legally binding, courts—the paragon of independent review mechanisms—are missing from the SDG follow-up and review process. By bringing a substantial portion of the SDG agenda under the banner of the right to health, the FCGH could bring judicial accountability to the SDGs.
The FCGH could require states to provide judicial remedies for FCGH violations, thus ensuring the justiciability of the right to health in all FCGH parties. Further, the FCGH could require measures to promote accessible and effective judicial remedies. These could include legal aid and community-based paralegals—measures in line with states’ commitment to equal access to justice under SDG 16—as well as training judges and lawyers on the right to health, right to health litigation in other countries, and health knowledge to aid decision-making, plus lenient standing requirements.8 These and other possibilities, such as legislative guidance to courts to ensure that judicial action promotes equity (or even such guidance from the FCGH itself), could mitigate the concern that right to health litigation can exacerbate inequities, primarily by requiring states to provide expensive medicines, thus ensuring the justiciability of the right to health is in concert with the SDG “pledge that no one will be left behind.”9
Even if rulings further the right to health and SDGs, other branches of government may refuse to implement them. Some judiciaries have forceful remedies; others could adapt their approaches. The Constitutional Court of Colombia has required immediate implementation of certain cases, with non-compliance resulting in the Court holding the government in contempt.10 In Brazil, the threat of imprisonment of recalcitrant officials encourages compliance, and courts can fine the authorities for every day they fail to implement an order.11 In its right to education cases, Indian courts have issued judgments with time limits and penalties.12 More traditionally, courts appoint monitors for continued oversight until implementation is complete.
Still, institutional constraints may weaken courts’ inherently limited enforcement capacity. Regular public reports on implementation and publicizing court opinions could keep decisions in the public spotlight, be fodder for civil society advocacy, and connect the judiciary to the rest of the “web of accountability,” such as civil society coalition-building and political advocacy.13
National health accountability strategies
The 2030 Agenda offers valuable principles for follow-up and review processes, including participation, gender-sensitivity, and an emphasis on poor and marginalized populations. The FCGH could translate such principles into an interacting set of mechanisms by requiring countries to develop national health accountability strategies. These would build on existing processes and human rights principles including transparency, indicators, improved data, resource tracking, and reviews; public participation, civil society engagement, and social accountability; non-judicial government structures (health ministries and parliaments, for example) and independent national human rights institutions;, and on ongoing accountability efforts, such as those promoted through the accountability framework of the Global Strategy on Women’s, Girls’ and Adolescents’ Health.14
As well as ensuring accountability for the health-related SDGs at the local and national levels, these strategies could be readily expanded to cover the full scope of the SDG agenda. They would also support SDG targets on access to justice and disaggregated data. A first step could be a collaborative process of assessing challenges to existing health accountability measures.
Along with a judicial component, with measures such as those described in the previous section, the strategies, with budgeted plans of action, could cover at least the following elements:
- Transparency, access to information, and anti-corruption measures: The strategies could establish standards, such as:
- the public accessibility of health laws, policies, and budgets, including at the community level;
- transparency in health-related contracting and officials’ assets; and
- measures to prevent informal payments and to remove “ghost” health workers from payrolls.15
- Local health accountability and participatory policymaking mechanisms: The strategies could:
- ensure the existence and functioning of and funding for such mechanisms as village health committees;
- facilitate community scorecards to rate local health services and develop actions to improve them;
- promote community auditing to ensure proper expenditure of health resources;
- establish local health assemblies to engage health authorities and government officials; and
- support health service monitoring, such as using SMS data or telephone hotlines to report health worker absenteeism and other irregularities.16
- National health accountability and participatory policymaking mechanisms: These could:
- include national human rights institutions, such as human rights commissions, parliamentary capacity to monitor the right to health and ministry of health capacity to implement it, national health assemblies, maternal and child mortality audits, social audits, scorecards, and targeted studies; and
- encompass transparent, participatory, and independent review mechanisms—with high-level political endorsement—to review progress, measure core indicators, and recommend corrective measures.17
- An enabling environment for social empowerment: Measures could encompass:
- providing public and health worker right to health education;
- funding to facilitate civil society and marginalized population engagement with policymakers; and
- ensuring the political space for right to health organizations (indeed, all civil society organizations), free of constraints (bans on foreign funding for human rights activities, for example).18
Strategies might include cross-cutting themes, such as use of technology (for example, electronic databases for court cases, the Internet for transparency, and mobile phones for local accountability).19
The SDG national reviews have no dedicated funding, though effective participation in these processes, especially for marginalized populations, will require funding. The FCGH could help, establishing a “Right to Health Capacity Fund” that echoes the mandate in the Optional Protocol to the ICESCR (Article 14.3) to establish a UN trust fund to build national capacities for implementing economic, social, and cultural rights.20 This fund could be resourced by governments, foundations, and individuals, and could finance accountability measures, encompassing mechanisms with an SDG review mandate but also reaching beyond, from public education to civil society advocacy through to government rights to health-related functions and institutions, including parliamentary committees and human rights commissions.21 The fund could support civil society organizations engaged in right to health activities, particularly at the grassroots level, and networks of marginalized populations, along with educational exchanges to share lessons on advocating for and incorporating the right to health into policy.
Such a fund could be independent or linked to other funding mechanisms, such as the Global Fund to Fight AIDS, Tuberculosis and Malaria, which itself offers important support for human rights organizations and activities including for law reform, legal aid and literacy, human rights training, community-based monitoring, and policy advocacy. The fund could learn from the Global Fund’s well-developed human rights infrastructure, including domestic and regional civil society networks to offer human rights technical assistance, a Human Rights Reference Group, human rights champions on staff, and an information note to provide clear guidance and examples of funded activities.22
International compliance and enforcement mechanisms
The 2030 Agenda rightly recognizes the need for both national and global accountability processes. Similarly, while accountability at the national level may be most important, the FCGH would incorporate international compliance mechanisms as well.
Targets, benchmarks, and indicators
Indicators and targets will be central to the FCGH compliance regime, establishing unambiguous expectations and benchmarks to assess progress, enable monitoring policy effectiveness, and expose neglected issues and populations. They would include relevant SDG indicators but would stretch well beyond to include—consistent with recognized right to health indicator practices—structural, process, and outcome indicators and targets, with disaggregated data.23
Rather than prescribing targets and deadlines, the FCGH could include guidelines for inclusive processes to translate the standards and requirements in the FCGH into national targets, benchmarks, and indicators, including ones tailored to particular contexts and populations.24 The FCGH Secretariat, in cooperation with the World Health Organization, the Office of the UN High Commissioner for Human Rights (OHCHR), and independent experts, and with input from states, could develop common metrics. Work of the UN High Level Task Force of the Working Group on the Right to Development can stimulate creative thinking, including on extraterritorial responsibility.25 Meanwhile, with the SDG global indicators to be complemented by others (the 2030 Agenda refers specifically to those developed by states), the FCGH indicators could also feed directly into the global SDG reviews, enhancing the reviews’ focus on equity, accountability, and participation.26
Monitoring and reporting
Like other human rights treaties, the FCGH would establish an independent monitoring and reporting process through the UN Committee on Economic, Social and Cultural Rights (CESCR) or its own treaty body, which could use UN human rights reporting processes. Either way, the responsible body could serve as the independent SDG global monitoring body that Paul Hunt calls for, part of the “network of follow-up and review processes at the global level” to which the high-level political forum charged with global SDG review could be linked.27
Beyond the treaty body’s own findings, including through state reports and national dialogues with government officials, in line with the CESCR’s reporting processes, civil society could submit shadow reports, other written submissions, and oral statements, all then contributing to the SDG review process.28 The CESCR or an independent FCGH treaty body could go beyond CESCR’s current guidelines, require states to identify shortcomings and obstacles for each treaty provision, and provide plans to overcome implementation gaps, many of which would also impede achieving the SDGs. The specific obligations of the FCGH would provide far greater scope for the treaty body to examine and engage the government on its right to health record than under the ICESCR or through the SDGs alone.
The FCGH Secretariat could publish annual summaries of treaty body reports, perhaps using the tier system of the US State Department’s annual human trafficking reports, with the lowest ranking countries subjected to penalties and special measures (examples include targeted capacity building assistance and funding local media and civil society to facilitate advocacy).29 Civil society could use the reports in advocacy, including as evidence of non-compliance in domestic courts.
The reporting process could facilitate additional pressure points. The FCGH might have a process to designate states regional FCGH leaders based on right to health implementation. The regional FCGH leader could review, comment on, and offer recommendations on neighboring states’ FCGH reports, a mutual accountability process that could be another source of input for the independent review process. This peer review could increase pressure to comply, as countries aim to look good in the eyes of their neighbors, while reputational benefits of being regional leaders could also be a small incentive for FCGH compliance.
The FCGH could support community-based participatory action research, with findings feeding into FCGH reports and the SDG review process, while also contributing to local change. Members of geographic or identity-based communities would identify right to health shortcomings; their concerns would inform national reporting mechanisms. Community members would also directly work to change these circumstances through a cycle of action, reflection, and further action.30
Detailed implementation guidelines
The FCGH Secretariat, with WHO and OHCHR, could turn the FCGH principles—for example, Health in All Policies—into specific implementation measures, providing precise expectations, as happens under the Framework Convention on Tobacco Control.31 These are far more specific than the general comments and recommendations in the international human rights regime. The guidelines can create expectations that civil society could use for advocacy, or even be persuasive authority in courts, even though not binding international law. UN technical guidance, such as on maternal mortality and human rights, could serve as models.32 Such guidelines would also inform states on desired practices for SDG implementation, such as rights-based universal health coverage.
International and regional dispute mechanisms and courts
The FCGH could help bring effective remedies, which are central to the human rights accountability framework, into the SDG accountability regime.33 Like other human rights treaties, the FCGH could create a committee to hear individual cases, or utilize the CESCR for this purpose, the latter approach avoiding duplication and reducing the risk of competing legal views of common aspects of economic, social, and cultural rights. A special rapporteur could assist individuals and groups in bringing matters before the committee. The committee might be able to launch its own investigations and investigate assertions of non-compliance by state parties, akin to the inquiry procedure and inter-state communications in the ICESCR Optional Protocol.34
As with the Inter-American system, the FCGH could establish an appeals process from this committee to a regional human rights court issuing binding decisions (with appropriate amendments to those courts’ charters), or even establish its own court. Given their shared ground, cases could involve state failings with respect to the SDGs that are also right to health violations. These might include excluding undocumented migrants from universal health coverage schemes, precluding achievement of the SDGs’ universal health coverage target, or state failure to remedy discrimination against women in health facilities, which impedes efforts to reduce maternal mortality.
Sustained attention will be important to ensure that states implement committee and court recommendations and decisions. Borrowing from the regime established through the International Covenant on Civil and Political Rights’ (ICCPR) Human Rights Committee, the FCGH could establish a position similar to the Special Rapporteur for Follow-up on Concluding Observations, who analyzes state action on the Human Rights Committee’s recommendations. While state implementation often remains highly problematic, the Special Rapporteur’s assessment is a creative approach to monitor progress and maintain awareness, with the potential for feeding into civil society advocacy, particularly with the Committee having developed an easily accessible grading system on state implementation.35 Beyond monitoring, the designee under the FCGH could be charged with advocating for and supporting efforts (for example, mobilizing technical assistance and commanding media attention) to implement recommendations and decisions. This position would, in effect, serve as a monitor and catalyst for action in situations where state action is most at odds with SDG targets.
A rigorous inspection regime is central to compliance in the arms control context, and periodic visits to examine treatment of people deprived of liberty and additional visits as needed are part of the European Convention Against Torture.36 Likewise, and as another form of independent SDG monitoring and contributing to SDG implementation, FCGH inspections could be both part of a regular process to support right to health compliance and a response to alleged serious violations. This could entail a new set of special rapporteurs, augmenting the capacity of the current UN special rapporteurs on the right to health and related rights. The UN special rapporteur on the right to health could focus on non-FCGH parties and integrate findings of the new special rapporteurs into broadly applicable conclusions.
Charged with FCGH monitoring and reporting, these special rapporteurs would come from the region to ensure understanding of country and cultural contexts, increasing national resonance. Civil society could use their reports for advocacy. The special rapporteurs could help stimulate national discussions, facilitate meetings between civil society and policymakers, organize regional forums for sharing lessons and building capacity, and press governments to improve compliance. They might also contribute to right to health capacity in regional organizations.
Several states have sought to weaken special rapporteurs, particularly those with individual country mandates and the rapporteur on freedom of expression in the Americas.xxxvii The less overtly political nature of health, the link to the SDGs, and the regional nature of the proposed rapporteurs may increase acceptability. Meanwhile, public reporting on state cooperation with the special rapporteurs could encourage such cooperation.38
Public international law is founded on the expectation of cooperation and consensus, not coercion and sanction. As part of this legal fabric, FCGH success, like that of the SDGs, would depend primarily on states’ willingness to carry out its precepts. Nonetheless, sanctions may have a supplementary role, as with the World Trade Organization (WTO), adding additional pressure to remedy right to health violations that impede SDG implementation.
The FCGH could specify violations warranting sanctions, empower an independent body (such as the same committee that hears disputes) to assess compliance and apply a tier system as described above, with sanctions for the lowest stratum, or simply direct the Conference of the Parties (CoP) to develop a calibrated response to serious FCGH violations, including sanctions as appropriate.
A key FCGH innovation in determining possible sanctions could be local civil society’s role. The FCGH could establish a dialogue with national civil society organizations to determine the best response to violations, with safeguards against possible retaliation. Dialogues would assess the expected impact of possible sanctions, including on health. Even with negative health implications, civil society might believe that sanctions might be the most effective way to advance the right to health over time. For example, sanctions could increase public pressure on governments to meet their commitments. The CoP or independent body might then determine an appropriate response, with civil society participating in its deliberations and decision-making.
Developing a sanctions regime that promotes the right to health, is equitable across countries, and is not political fantasy is challenging. A basic form of sanctioning would be loss of benefits under the FCGH, notably international assistance. This approach has several significant shortcomings, however. First, it would impose a double burden on people in countries with poor compliance, who would be subject to reduced realization of the right to health due to their own governments’ failures, and from curtailed international support. And second, loss of assistance would be a tool that higher-income states could use against lower-income states but not the reverse, an inequity that could undermine trust among FCGH parties. We must look beyond this penalty.
International assistance could be reprogrammed to non-governmental providers, to government entities not responsible for the violations, and to NGOs contributing to people’s empowerment and government accountability. Funding could be channeled specifically to organizations working to overcome the particular violation. This is akin to the Global Forum on MSM & HIV (MSMGF) proposal, after Nigeria enacted a harsh anti-gay law in January 2014, that donors reprogram funding to support LGBT rights there.39
The FCGH could block offending parties (and perhaps their nationals) from assuming global health leadership positions, akin to the UN Human Rights Council conditioning membership on not engaging in severe human rights violations.40 FCGH parties could oppose their serving as board members, chairs, or executive directors of UNAIDS or the Global Fund, or serving on WHO’s Executive Council. This may at least partially counterbalance one flaw in the SDG review process: that the High-Level Political Forum on Sustainable Development will include the very governments that are perpetuating human rights violations that undermine achieving the SDGs.
State agreement to an FCGH sanctions regime would be difficult to achieve. The FCGH could adopt strategies to increase the possibility of state acceptance. For example, if an inclusive national process affirms that a state is making a good faith effort to comply, that state could be shielded from sanctions. Reliance on national processes must include assurances of their inclusive, transparent, and honest nature (for example, governments do not threaten or induce civil society participants, or control which civil society organizations participate). Similarly, countries could make submissions concerning their own noncompliance, as with the Montreal Protocol, along with plans to rectify their noncompliance.41 These plans might be developed and approved through inclusive national participatory processes, and shield states from sanctions.
If a state cannot justify noncompliance and explain how it will come into compliance in these ways, and sanctions are warranted, the Convention could provide for a warning period and a final opportunity to comply before sanctions take effect, much as the WTO dispute settlement process allows a reasonable period for implementation before any penalties take effect.42 Also, states might need to affirmatively recognize jurisdiction of an individual compliant mechanism or court, akin to human rights courts in the Inter-American and African human rights systems and the ICESCR Optional Protocol.43
States may be reluctant to sanction another state, possibly harming relations and setting a precedent where they themselves might be sanctioned. And sanctions may be insufficient to motivate compliance. Incentives are preferable.44
Regional right to health leaders and their nationals could be recognized as leading candidates for international health and human rights bodies and leadership positions. These countries might receive a small reward, such as the opportunity to host regional and global health meetings, with the associated economic activity.
While its norm-setting role may extend beyond states parties, FCGH contributions to SDG accountability will depend significantly on ratification. As a minor incentive, for states to ratify the treaty, FCGH parties could agree to not support non-parties for health and human rights bodies or leadership positions. Or, encouraging non-parties to adhere to FCGH precepts, an FCGH body could gauge right to health implementation of non-FCGH parties based on CESCR reports or select indicators, with FCGH parties weighing their candidacies accordingly.
A more tangible incentive is funding. The FCGH could establish a mechanism to finance the treaty’s procedural aspects, such as developing FCGH implementation reports and national health accountability strategies, and ensuring inclusive, participatory approaches in priority-setting, policymaking, and monitoring and reporting. The mechanism could support other compliance modalities, such as regional special rapporteurs and activities of regional right to health leaders, such as peer review and documenting their own positive practices.
Private sector action will be important to achieving the SDGs. Will pharmaceutical companies develop better diagnostics and treatments for TB and other diseases that most affect poorer people, or price medicines beyond people’s reach? Will mining companies work with communities to ensure that their activities do not harm health, or will they pollute life-giving rivers?
The FCGH could help tilt the answer towards health-promoting actions and corporations’ right to health compliance. Building on the UN Guiding Principles on Business and Human Rights, this could include enhancing state responsibilities to regulate corporations, such as requiring corporate policies on respecting the right to health, assessing the human rights impact of their policies and practices, acting on these findings, monitoring results, and providing remedies.45 Modeled after the National Contact Points of the OECD Guidelines for Multinational Enterprises, the FCGH could require national contact points to promote corporations’ health and human rights responsibilities and help resolve particular issues.46 Further, the FCGH could encourage or require states to permit individuals and organizations to sue corporations for right to health violations.47
The FCGH may be able to create binding obligations directly on corporations. A rare illustration of this in international law example comes from the WHO Pandemic Influenza Preparedness (PIP) Framework’s use of contract law. Under this Framework, WHO-designated laboratories agree to share influenza virus samples only with pharmaceutical and biotechnology companies (which may desire the samples so that they can develop vaccines, treatments, and diagnostics) that enter into a contract with WHO to take measures to increase availability of vaccines, treatments, and diagnostics in developing countries.48
The FCGH could draw on this example. States could agree to incorporate provisions related to respect for the right to health into any contracts they enter with corporations, creating binding obligations. Contracts could have specific requirements, such as undertaking right to health assessments and acting on findings. Contract provisions could also be tailored to specific industries. For example, guided by the Human Rights Guidelines for Pharmaceutical Companies in relation to Access to Medicines, contracts with pharmaceutical companies could include transparency in lobbying and pricing, and promoting access to medicines in poorer countries and to poorer populations.49
The compliance regime sketched here would bring such mechanisms as judicial review, capacity building, community monitoring, detailed guidance, inspections, independent institutional review and oversight, and sanctions and incentives to the SDGs’ health promises. These measures build on but go well beyond those of the ICESCR and the current UN human rights regime. A court could enhance the ICESCR Optional Protocol’s individual compliance mechanism. The special rapporteur system could be expanded, with a regional focus. FCGH Secretariat reports could include tiers, linked to targeted sanctions and incentives. Measures to empower national and local level accountability would be central.
States could use other opportunities to encourage compliance. Much as states incorporate labor and environmental protections into trade agreements, they could include sections on the right to health, linked to the FCGH. They might find creative ways to leverage international assistance to promote compliance.
Compliance modalities can be synergistic. Monitoring processes can facilitate advocacy, provide evidence used in courts and at parliamentary hearings, and feed into formal SDG review processes. Even before the FCGH is adopted, possible elements of its compliance regime, such as national health accountability strategies, a Right to Health Capacity Fund, and regional special rapporteurs, could be developed, buttressing SDG compliance.
Even the most powerful compliance regime the FCGH might incorporate would not ensure achieving perfect right to health adherence or the health-related SDGs. But between today’s ill state of right to health compliance and the ideal is immense scope for improvement. A well-designed, multi-dimensional FCGH compliance regime, backed by civil society advocacy, could move closer to that ideal. That alone would make the FCGH transformative.
Eric A. Friedman, JD, is the Project Leader of the Platform for a Framework Convention on Global Health (FCGH) at the O’Neill Institute for National and Global Health Law at the Georgetown University Law Center in Washington, DC, USA.
1 UN General Assembly, Transforming Our World: The 2030 Agenda for Sustainable Development, UN Doc. A/RES/70/1 (September 25, 2015), para. 4. Available at http://www.un.org/en/ga/search/view_doc.asp?symbol=A/RES/70/1.
2 Platform for a Framework Convention on Global Health. Available at http://www.globalhealthtreaty.org. International Covenant on Economic, Social and Cultural Rights (ICESCR), UN G.A. Res. 2200A (XXI) (1966), Art. 12. Available at http://www2.ohchr.org/english/law/cescr.htm.
3 P. Hunt, “SDGs and the importance of formal independent review: An opportunity for health to lead the way,” Health and Human Rights SDG Series blog, September 2, 2015. Available at http://www.hhrjournal.org/2015/09/02/sdg-series-sdgs-and-the-importance-of-formal-independent-review-an-opportunity-for-health-to-lead-the-way/.
5 UN General Assembly (see note 1).
6 Hunt (2015) (see note 3).
7 E.A. Friedman and L.O. Gostin, “Imagining global health with justice: In defense of the right to health,” Health Care Analysis 23/4 (2015), pp. 308-329. Available at http://link.springer.com/article/10.1007%2Fs10728-015-0307-x.
8 V. Maru, “Allies unknown: Social accountability and legal empowerment,” Health and Human Rights 12/1 (2010), pp. 83-93. Available at https://cdn2.sph.harvard.edu/wp-content/uploads/sites/13/2013/07/9-Maru.pdf. A.E. Yamin, “Promoting equity in health: What role for courts?” Health and Human Rights 16/2 (2014), pp. 1-9. Available at https://cdn2.sph.harvard.edu/wp-content/uploads/sites/13/2014/12/Yamin-final.pdf.
9 A.E. Yamin, “Promoting equity in health: What role for courts?” Health and Human Rights 16/2 (2014), pp. 1-9. Available at https://cdn2.sph.harvard.edu/wp-content/uploads/sites/13/2014/12/Yamin-final.pdf.
10 C.M. Flood and A. Gross, “Litigating the right to health: What can we learn from a comparative law and health care systems approach?” Health and Human Rights 16/2 (2014), pp. 62-72. Available at https://cdn2.sph.harvard.edu/wp-content/uploads/sites/13/2014/12/Flood-final.pdf.
11 O.L.M. Ferraz, “Brazil: Health inequalities, rights, and courts: The social impact of the judicialization of health,” in A.E. Yamin and S. Gloppen (eds.), Litigating health rights: Can courts bring more justice to health? (Cambridge, MA: Harvard University Press, 2011), pp. 76-102. F.F. Hoffmann and F.R.N.M. Bentes, “Accountability for social and economic rights in Brazil,” in V. Gauri and D. M. Brinks (eds.), Courting social justice: Judicial enforcement of Social and economic rights in the developing world (New York: Cambridge University Press, 2010), pp. 100-145.
12 S. Shankar and P.B. Mehta, “Courts and socioeconomic rights in India,” in Courting social justice: Judicial enforcement of social and economic rights in the developing world (see note 11), pp. 146-182.
13 Yamin (see note 8).
14 Commission on Information and Accountability for Women’s and Children’s Health, Keeping promises, measuring results (2011), pp. 6-8. Available at http://www.who.int/topics/millennium_development_goals/accountability_commission/Commission_Report_advance_copy.pdf. Independent Expert Review Group on Information and Accountability for Women’s and Children’s Health, The third report of the Independent Expert Review Group on Information and Accountability for Women’s and Children’s Health (2014). Available at http://apps.who.int/iris/bitstream/10665/132673/1/9789241507523_eng.pdf. Every Women Every Child, Global strategy on women’s, girls’ and adolescents’ health (2016-2030), pp. 70-73. Available at http://www.who.int/pmnch/media/events/2015/gs_2016_30.pdf.
15 Transparency International, Global corruption report 2006: Corruption and health (2006). Available at http://www.transparency.org/whatwedo/publication/global_corruption_report_2006_corruption_and_health.
16 H. Potts, Accountability and the right to the highest attainable standard of health (2008), p. 35. Available at http://repository.essex.ac.uk/9717/1/accountability-right-highest-attainable-standard-health.pdf. Partnership for Transparency Fund, Improving public health service delivery: Citizen monitoring in Nepal (2012). Available at http://ptfund.org/wp-content/uploads/2015/05/Case-Study-Samuhik-Abhiyan-Nepal.pdf. O. Abello, “Video: Where have they gone? ICT to address health worker absenteeism in India,” Results for Development blog, June 4, 2012. Available at http://r4d.org/blog/2012-06-04/video-where-have-they-gone-ict-address-health-worker-absenteeism-india. S.P. Ogwang, “Fighting Corruption, Empowering People in Uganda’s Health Service,” Transparency International Uganda blog, July 11, 2012. Available at http://blog.transparency.org/2012/07/11/community-empowerment-in-uganda-using-icts-for-better-health-service-delivery/.
17 Paul Hunt, UN Special Rapporteur on the right of everyone to the enjoyment of the highest attainable standard of physical and mental health, The Right of Everyone to the Enjoyment of the Highest Attainable Standard of Physical and Mental Health, Paul Hunt: Addendum: Mission to India, UN Doc. A/HRC/14/20/Add.2 (April 15, 2010), paras. 71-75. Available at http://daccess-dds-ny.un.org/doc/UNDOC/GEN/G10/128/66/PDF/G1012866.pdf?OpenElement. M. Puri and Chandrakant Lahariya, “Social audit in health sector planning and program implementation in India,” Indian Journal of Community Medicine, 36/3 (2011), pp. 174-177. Available at http://www.ncbi.nlm.nih.gov/pmc/articles/PMC3214439/. Every Women Every Child (see note 14), p. 72. Commission on Information and Accountability for Women’s and Children’s Health (see note 14), pp. 15-16.
18 Paul Hunt, UN Special Rapporteur on the right of everyone to the enjoyment of the highest attainable standard of physical and mental health, The Right of Everyone to the Enjoyment of the Highest Attainable Standard of Physical and Mental Health, Paul Hunt: Addendum: Missions to the World Bank and the International Monetary Fund in Washington, D.C. (20 October 2006) and Uganda (4-7 February 2007), UN Doc. A/HRC/7/11/Add.2 (March 5, 2008), paras. 69-71. Available at http://daccess-dds-ny.un.org/doc/UNDOC/GEN/G08/114/25/PDF/G0811425.pdf?OpenElement. A. Sabae, “Four strategic pathways for the realization of the right to health through civil society actions: Challenges and practical lessons learned in the Egyptian context,” Health and Human Rights, 16/2 (2014), pp. 104-115. Available at
19 Global Health and Human Rights Database. Available at http://www.globalhealthrights.org. Commission on Information and Accountability for Women’s and Children’s Health (see note 14), p. 12.
20 Optional Protocol to the ICESCR, UN GA Res. 63/117 (2008). Available at http://www1.umn.edu/humanrts/instree/opt-prot08.html.
21 E.A. Friedman and L.O. Gostin, “Pillars for progress on the right to health: Harnessing the potential of human rights through a Framework Convention on Global Health,” Health and Human Rights 14/1 (2012), pp. 4-19. Available at https://cdn2.sph.harvard.edu/wp-content/uploads/sites/13/2013/06/Friedman-FINAL2.pdf.
22 Global Fund to Fight AIDS, Tuberculosis and Malaria, Human rights for HIV, TB, malaria and HSS grants information note (February 2014). Available at http://www.theglobalfund.org/documents/core/infonotes/Core_HumanRights_InfoNote_en/. S.L. Davis, “Human rights and the Global Fund to Fight AIDS, Tuberculosis, and Malaria,” Health and Human Rights 16/1 (2014), pp. 134-148. Available at http://www.hhrjournal.org/2014/07/01/human-rights-and-the-global-fund-to-fight-aids-tuberculosis-and-malaria/.
23 P. Hunt and G. MacNaughton, “A human rights-based approach to health indicators,” in M.A. Baderin and R. McCorquodale (eds.), Economic, social and cultural rights in action (New York: Oxford University Press, 2007), pp. 303-330. UN Committee on Economic, Social and Cultural Rights, General Comment No. 14, The Right to the Highest Attainable Standard of Health, U.N. Doc. E/C.12/2000/4 (2000), paras. 57-58. Available at http://www1.umn.edu/humanrts/gencomm/escgencom14.htm. G. Backman et al., “Health systems and the right to health: an assessment of 194 countries,” Lancet 372 (2008), pp. 2047-2085. Available at http://www.who.int/medicines/areas/human_rights/Health_System_HR_194_countries.pdf. UN Office of the High Commissioner of Human Rights, Human Rights Indicators: A Guide to Measurement and Implementation (2012). Available at http://www.ohchr.org/Documents/Publications/Human_rights_indicators_en.pdf.
24 P.J. Surkan, L.C. Mullany, N.S. Singh, and C. Beyrer, “Approaches to the development of human rights indicators for women’s health,” Perspectives, Health and Human Rights (2012). Available at http://www.hhrjournal.org/2012/12/13/approaches-to-the-development-of-human-rights-indicators-for-womens-health/.
25 Human Rights Council, Working Group on the Right to Development, Report of the high-level task force on the implementation of the right to development on its Sixth Session, Addendum: Right to development criteria and operational sub-criteria. A/HRC/15/WG.2/TF/2/Add.2 (2010). Available at http://www.fes.de/gpol/pdf/A-HRC-15-WG2-TF-2-Add2.pdf.
26 UN General Assembly (see note 1), para. 74.
27 UN General Assembly (see note 1), para. 82.
28 B.M. Meier and Y. Kim, “Human rights accountability through treaty bodies: Examining human rights treaty monitoring for water and sanitation,” Duke Journal of Comparative & International Law 26/1 (2015)[, p. 17]. Available at http://papers.ssrn.com/sol3/papers.cfm?abstract_id=2596276.
29 U.S. Department of State, Office to Monitor and Combat Trafficking in Persons, 2014 Trafficking in Persons Report (2014), pp. 43-44. Available at http://www.state.gov/documents/organization/226844.pdf.
30 A. Ezike, “Intangible cultural assets of the Framework Convention of Global Health,” CEHURD blog, 2014. Available at http://www.cehurd.org/wp-content/uploads/downloads/2015/01/CEHURD-FCGH-Paper.pdf.
31 World Health Organization, WHO Framework Convention on Tobacco Control: Adopted Guidelines. Available at http://www.who.int/fctc/guidelines/adopted/en/.
32 Human Rights Council, Technical Guidance on the Application of a Human Rights-Based Approach to the Implementation of Policies and Programmes to Reduce Preventable Maternal Morbidity and Mortality: Report of the Office of the United Nations High Commissioner for Human Rights (2012), UN Doc. A/HRC/21/21. Available at http://www2.ohchr.org/english/issues/women/docs/A.HRC.21.22_en.pdf.
33 Potts (see note 16), pp. 28-29.
34 Optional Protocol to the ICESCR (see note 20), arts. 10-12.
35 Centre for Civil and Political Rights, Follow-up on the concluding observations – March 2015 report. Available at http://www.ccprcentre.org/follow-up-on-the-concluding-observations/. UN Human Rights Committee, Note by the Human Rights Committee on the Procedure for Follow-Up to Concluding Observations, UN Doc. No. CCPR/C/108/2 (2013). Available at http://tbinternet.ohchr.org/_layouts/treatybodyexternal/Download.aspx?symbolno=CCPR%2fC%2f108%2f2&Lang=en.
36 European Convention for the Prevention of Torture and Inhuman or Degrading Treatment or Punishment, E.T.S. 126 (1987), arts. 7-14. Available at http://www1.umn.edu/humanrts/euro/z34eurotort.html.
37 K. Salazar, “Between reality and appearances,” Aportes DPLF (April 2014), pp. 16-19. Available at http://www.dplf.org/sites/default/files/aportes_19_english.pdf.
38 M. Ineichen, P. Lynch and E. Openshaw, Strengthening Cooperation with the Special Procedures (International Service for Human Rights, September 2014). Available at http://www.ishr.ch/sites/default/files/article/files/ishr_submission_to_21st_meeting_of_special_procedures.pdf.
39 Global Forum on MSM & HIV, “SIGN ON: Key Actions for Global Donors to Respond Effectively to the Same Sex Marriage (Prohibition) Act in Nigeria,” January 27, 2014. Available at http://www.msmgf.org/index.cfm/id/65/alert_id/20.
40 UN Human Rights Council, G.A. Res. 60/251, UN Doc. A/60/L48 (March 15, 2006). Available at http://research.un.org/en/docs/ga/quick/regular/60.
41 Montreal Protocol on Substances that Deplete the Ozone Layer, Tenth Meeting of the Parties (Cairo, November 23-24, 1998), Appendix, Non-Compliance Procedures, para. 4. Available at http://ozone.unep.org/en/handbook-montreal-protocol-substances-deplete-ozone-layer/2117.
42 World Trade Organization, Understanding on Rules and Procedures Governing the Settlement of Disputes, April 15, 1994, arts. 21-22. Available at https://www.wto.org/english/docs_e/legal_e/28-dsu.pdf.
43 American Convention on Human Rights, entered into force July 18, 1978, art. 62. Available at http://www1.umn.edu/humanrts/oasinstr/zoas3con.htm. Protocol to the African Charter on Human and Peoples’ Rights on the Establishment of an African Court on Human and Peoples’ Rights, OAU Doc. OAU/LEG/AFCHPR/PROT (III), entered into force Jan. 25, 2004. Available at http://www1.umn.edu/humanrts/instree/protocol-africancourt.pdf. Optional Protocol to the ICECSR (see note 20).
44 E.M. Hafner-Burton, D.G. Victor, and Y. Lupu, “Political science research on international law: The state of the field,” American Journal of International Law 106/1 (2012), pp. 47-97, at p. 91.
45 J.G. Ruggie, Special Representative of the Secretary-General on the Issue of Human Rights and Transnational Corporations and Other Business Enterprises, Guiding Principles on Business and Human Rights: Implementing the United Nations “Protect, Respect and Remedy” Framework, UN Doc. No. A/HRC/17/31 (2011). Available at http://www.ohchr.org/Documents/Publications/GuidingPrinciplesBusinessHR_EN.pdf.
46 Organization of Economic Co-operation and Development, OECD Guidelines on Multinational Enterprises, 2011 Edition (2011). Available at http://www.oecd.org/daf/inv/mne/48004323.pdf.
47 M. Hevia and C.H. Vacaflor, “Effective access to justice against state and non-state actors in the Framework Convention on Global Health: A proposal,” Health and Human Rights 15/1 (2013), pp. 8-16. Available at https://cdn2.sph.harvard.edu/wp-content/uploads/sites/13/2013/06/Hevia-FINAL.pdf.
48 World Health Organization, Pandemic Influenza Preparedness Framework for the Sharing of Influenza Viruses and Access to Vaccines and Other Benefits. Adopted in Report by the Open-Ended Working Group of Member States on Pandemic Influenza Preparedness: Sharing of Influenza Viruses and Access to Vaccines and Other Benefits, Doc A64/8 (Geneva: WHO, 2011). Available at http://whqlibdoc.who.int/publications/2011/9789241503082_eng.pdf?ua=1.
49 P. Hunt, Report of the Special Rapporteur on the Right of Everyone to the Enjoyment of the Highest Attainable Standard of Physical and Mental Health, UN Doc. No. A/63/263 (2008). Available at http://www.who.int/medicines/areas/human_rights/A63_263.pdf. P. Hunt, Report of the Special Rapporteur on the Right of Everyone to the Enjoyment of the Highest Attainable Standard of Health, Paul Hunt, Annex: Mission to GlaxoSmithKline, UN Doc. No. A/HRC/11/12/Add.2 (2009). Available at http://www.who.int/medicines/areas/human_rights/A_HRC_11_12_Add_2.pdf.
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Rick Lines, Richard Elliott, Julie Hannah, Rebecca Schleifer, Tenu Avafia, and Damon Barrett
Letter to the Editor: Human Rights, TB, Legislation and Jurisprudence
O. B. K. Dingake
UNstoppable: How Advocates Persevered in the Fight for Justice for Haitian Cholera Victims