State centred discourse on international law and human rights often diminishes the obligations of global health institutions in international law to advance health related human rights and as sites for the progressive development and implementation of health rights. The constitution of the World Health Organization (WHO) provides an expansive role for human rights protection and promotion in realizing public health, but WHO has faced hurdles in effectively carrying out this role. Current scholarship continues to underscore the normative challenges facing WHO concerning its limited use of international law including human rights to promote health. This article goes a step further and explores the evolving international legal and institutional basis for WHO’s future direction in strengthening the governance of human rights. It revisits WHO’s evolving and expanding human rights mandate, challenges and prospects within WHO law, the broader United Nations law, policy and practice as well as general international law. Despite the limitations, WHO has evolving institutional mechanisms rooted in international law that comprise a pivotal site for human rights normative and operational work at the global, regional and domestic levels. The article examines these mechanisms and suggests concrete ways and options in which WHO can advance health rights.
1.1. Global Health Agencies: An Introduction
State centred rights discourse obscures the role of international organizations in promoting and protecting health rights.2 Global health governance concerns the actions and means adopted by an organization to organize itself in the promotion and protection of the health of populations.3 Health governance has now expanded to include a mix of global actors.4 The United Nations (UN) Charter and the Constitution of the World Health Organization (WHO) endow the WHO with the primary mandate to promote global health.5 Other UN specialized agencies/programmes such as the United Nations Development Programme, Office of the High Commissioner for Human Rights, the United Nations Children’s Fund (UNICEF), the International Labour Organization (ILO), the Food and Agriculture Organization (FAO), United Nations Educational, Scientific and Cultural Organization(UNESCO) and United Nations Population Fund (UNFPA) govern and promote health rights.6 Other health agencies outside the United Nations system include Médecins Sans Frontières (MSF), the Bill and Melinda Gates Foundation and the International Federation of Red Cross and Crescent Societies. WHO is the most prominent global health agency of the United Nations system mandated to promote global health. With an extensive regional and country presence, WHO has a potential to advance health rights at both the global and regional levels. However, despite a range of mechanisms available to WHO, the legal and operational environment for fostering human rights continue to pose challenges. Much scholarship has explored the normative challenges facing WHO concerning its use of international law including human rights to promote health. This article explores the international legal and institutional basis for WHO’s future direction in strengthening the governance of human rights. It also analyzes WHO’s human rights challenges and prospects within the broader United Nations law, policy and practice.
1.2. Emerging Trends in WHOs Normative Mandate and the Role of Human Rights
At WHO, there is renewed efforts to strengthen the capacity of WHO and its Member States to integrate a human rights-based approach to health, to advance the right to health in International law and international development processes and advocate for health-related human rights. New normative frameworks that incorporate human rights frameworks have been adopted at WHO, notably the WHO Framework Convention on Tobacco Control (hereinafter referred to as WHO FCTC) and the International Health Regulations (2005) (hereinafter referred to as IHR). WHO and its Member States face global health risks that include lack of preparedness for global pandemics, negative health effects of trade, bioterrorism and trans-border movement of hazardous substances. Other challenges include pandemics and communicable diseases, the challenge of health system reform, the growing burden of non-communicable diseases and the need to achieve the Millennium Development Goals (MDGS). This calls for enhancing the role of WHO’s governance of human rights.
Along with shortfalls in funding for global health and a push for global partnerships, these concerns have cut into the core of the WHO’s global health and human rights mandate under its Constitution.
Besides the Constitution, there is evidence of an expanding legal basis for WHO action to promote and protect human rights. Moreover, there is emerging evidence of renewed enthusiasm by WHO at the global and regional levels to adopt, strengthen or monitor existing normative frameworks including human rights law to protect global health. The WHO human rights unit is being strengthened and these efforts replicated at the regional WHO offices. WHO is increasingly collaborating within the United Nations system especially the Office of the High Commissioner for Human Rights in capacity building for health rights.7 Much of the focus of legal scholarship has been to explore WHO’s dismal normative work in global health and within its constitutional and institutional mechanisms. Little has been explored on the implications of wider United Nations law and practice, the importance of recent international legal instruments on WHO’s human rights work and the renewed institutional interest in promoting human rights as a cross-cutting issue and the challenges for WHO in this endeavour. Moreover, exploring the different legal and institutional options to realize this renewed mandate in the face of the challenges faced by WHO is a critical part of this debate. There is little noticed but emerging efforts to strengthen and implement WHO’s normative activities to promote human rights in global health at both the global and regional levels. WHO role is not merely to facilitate health cooperation and development within its mandate but derives obligations in international law and its constitution to promote and protect human rights.
Human rights are important for global health for a number of reasons: Firstly, the world population is facing unprecedented transnational burden of communicable and noncommunicable diseases, poverty and poor health systems.8 Global health continues to be in search of effective normative frameworks and human rights provide them.9 Secondly, human rights addresses criticisms of WHO’s governance of contemporary global health challenges. States and international organizations have recognized the linkage between health and human rights, especially the right to the highest attainable standard of health. Global health policies and programmes impact on the enjoyment of human rights and a lack of respect for rights undermines health.10 Conversely, rights based health interventions can inform and strengthen public health responses and human rights principles of non-discrimination and equality helps to address health needs of vulnerable groups. Thirdly, international human rights mechanisms regularly monitor health issues including those within WHO’s mandate. For example, the human rights monitoring bodies have clarified the normative content of the right to health. The UN Human Rights Council has urged States to promote health rights including preventing HIV-related discrimination and stigmatization, and improving access to treatment.11 The Council deliberates health issues through universal periodic review of the fulfilment by States of their human rights obligations.12 The UN Special Rapporteur on the right to health has visited several states and international organizations to examine their health rights policies and practices.13 Fourthly, using the concept of proportionality, human rights law seeks to balance the rights of all actors especially end users and marginalized groups in their participation in the global health agenda. For example, WHO’s human rights awareness raising and capacity building has a potential to empower groups and communities to protect and promote their health rights. Human right ensures that global health decision making is better organized through a balancing process that engages individuals and communities at the international and domestic levels in health decision making and implementation. Finally, WHO’s health cooperation founded on a rights based constitutional framework is a strategic tool for mobilizing health resources and expertise.14 Moreover, human rights help to strengthen governance of global health.15
2.1. Human Rights Obligations of the WHO in WHO Law and International Human Rights Law
The earliest affirmation of the right to health originated from the WHO. The WHO Constitution was written in 1946, 2 years before the adoption of the Universal Declaration of Human Rights. WHO proclaimed that the enjoyment of the highest attainable standard of health is one of the fundamental rights of every human being, without distinction of race, religion, and political belief, economic or social condition.16 The WHO Constitution defines health broadly, stating that health is a state of complete physical, mental and social well-being and not merely the absence of disease or infirmity. Moreover, many of WHO’s 192 Member States have proclaimed this right.17 Moreover, globalization of public health, increasing disease burdens and millennium development goals has led to institutional adaptation at WHO to promote legal strategies to promote global health.18
The Constitution of WHO empowers WHO to develop treaties which serve to promote human rights. The WHO Framework Convention on Tobacco Control and International Health Regulations that provide for human rights reflect these powers.19 The ongoing development and implementation of the WHO FCTC has provided new mandate thereby invigorating its human rights governance. Both the WHO FCTC and IHR directly require WHO to proactively promote the implementation of the two treaties.20 The WHO FCTC contains an extensive human rights preambular provisions including on the right to health.21 The preamble to the Convention affirms the determination of Parties to give priority to their right to protect public health and recalls article 12 of the International Covenant on Economic, Social and Cultural Rights and the Preamble to the WHO Constitution on the right to health, the Convention on the Elimination of all Forms of Discrimination against Women and the Convention on the Rights of the Child. This preambular provision has evolved and has been reinforced by the WHO FCTC’s guidelines especially on implementation of its article 8 on the protection of persons from exposure to tobacco control require that human rights underpins its implementation,22 as well as well as ongoing efforts by WHO to support the implementation of the Convention.23 The IHR does provide for full respect of human rights in aspects relating to implementation of the regulations.24
Human rights considerations partly underpin the public health security provisions reflected in the revised IHR, which entered into force on 15 June 2007.25 The IHR provide explicitly for the protection of the human rights of travellers, including respect for gender, socio-cultural, ethnic or religious considerations, and must be implemented “with full respect for the dignity, human rights and fundamental freedoms of persons.”26 The Regulations require WHO Director-General “to determine, on the basis of the information received whether an event constitutes a public health emergency of international concern”.27 Taken together with WHA Resolutions which require WHO to provide technical support to implement these treaties,28 the WHO FCTC and IHR reflect an evolving human rights mandate for WHO and the need for options to implement these expanding mandate.
Human rights have also figured centrally in negotiations towards a global strategy on Intellectual Property Rights, Innovation and Public Health, by the WHO Commission on Intellectual Property Rights, Innovation and Public Health.29 The Plan of Action adopted by the WHA at its 61st session recognizes the right of everyone to the enjoyment of the highest attainable standard of health.30 WHO also has responsibility under the UN Charter to promote human rights. The Charter includes human rights as one of the purposes of the UN and WHO, a UN specialized agency is bound by this mandate. At the 2005 World Summit, UN Member States resolved to mainstream human rights into national policy and throughout the United Nations system. Several human rights instruments such as the International Covenant on Economic, Social and Cultural Rights (CESCR), Convention on the Elimination of Racial Discrimination against Women (CEDAW), the Convention on the Rights of the Child also require WHO to act to promote human rights.
Several Comments and Recommendations of the different human rights bodies have requested WHO to promote human rights. For example, in General Comments Number 3 and 14 of the Committee on Economic, Social and Cultural Rights the minimum core obligations on the right to health include: ensuring the right of access to health facilities, goods and services, ensuring access to basic housing, sanitation and an adequate supply of safe water, providing essential drugs as defined under the WHO Action Programme on Essential Drugs, ensuring equitable distribution of all health facilities and goods and adopting and implementing a national public health strategy and plan of action, on the basis of epidemiological evidence, addressing the health concerns of the whole population.31 The right to health entails a number of criteria for its evaluation which include availability, accessibility and acceptability of health infrastructure. General Comment No 14 requires States to identify appropriate right to health indicators and benchmarks to monitor the implementation of the right to health and identifies the WHO, UNICEF and UNFPA whose benchmarks will guide States in their implementation. In this connection, WHO has developed indicators on reproductive health.32
At the 15th Session of the Human Rights Council (HRC), September to October 2010, three resolutions of particular relevance to WHO’s human rights mandate were adopted: Firstly, a Resolution on the right to health33 highlighted that the right to health especially in relation to poverty is a distant goal and emphasized the importance of access to medicine, safe and clean water for all, balanced distribution of health workers, gender equality and the empowerment of women and girls and the rights to persons with disabilities. The Resolution requested the Special Rapporteur to prepare a thematic study on the right to health of older persons and extended the mandate of the Special Rapporteur, Mr Anand Grover for a further period of 3 years, starting on 1 August 2011 until 31 July 2014. Secondly, a resolution entitled “preventable maternal mortality and morbidity and human rights: follow up to Council resolution 11/8”,34 welcomed recent initiatives on maternal mortality. It reaffirmed that pregnancy-related deaths and injuries are a human rights issue. This resolution also called for disaggregated data collection and adoption of national-level targets and indicators in order to identify and address underlying causes of maternal mortality and morbidity. Thirdly, the Resolution on Water and Sanitation35 called upon States to ensure full transparency of the planning and implementation process in the provision of safe drinking water and sanitation and the active, free and meaningful participation of the concerned local communities and relevant stakeholders therein. It also recalled that States should ensure that non-State providers fulfil their human rights standards responsibilities throughout the process.
Other soft law generated both within WHO and globally continues to inform WHO’s work to promote human rights. WHO Resolutions36 as well as the Cairo Programme,37 the Cairo Plus Five,38 the Beijing Platform,39 Beijing Plus Five,40 Beijing Plus 1041 and the Siracusa Principles,42 encourage WHO’s human rights work. Others include Declaration of Commitment on HIV/AIDS, “Global Crisis – Global Action”,43 UN Declaration on a World fit for Children.44
In 2009, WHA adopted the amended Medium-Term Strategic Plan (MTSP) for 2008–2013 that requires WHO to promote rights approaches to health.45 The Amended Strategic Objective 7 of the Medium Term Strategic Plan (as amended) requires WHO to address the underlying social and economic determinants of health through policies and programmes that enhance health equity and integrate pro-poor, gender-responsive, and human rights-based approaches.46 WHO’s expanded mandate reflects its broad definition of health in its Constitution.
Although the health-related Resolutions do not create new international law binding on WHO member states, it demonstrates the functional role of “soft law” in international health relations. International lawyers typically distinguish binding rules of international law – “hard law” – from non-binding norms, principles, and practices that influence state behaviour soft law. WHO and other UN actors have generated many soft-law norms, creating a soft-law regime in international governance for public health. The soft law Resolutions represent significant steps in laying the political groundwork for improved international cooperation on health and human rights. The resolutions clearly define WHO member states’ normative duty to cooperate fully with other countries and with WHO and other global health actors to promote health rights. While soft law duties are not binding per see and unenforceable, they are powerful political instruments that strengthen cooperation between States and international actors in the pursuit of global health and human rights. The challenge for WHO has been to translate these hard and soft normative instruments to effectively prioritize human rights in its mandate.
2.2. Human Rights Obligations of the WHO in General International Law
WHO is the UN’s specialized health agency, a successor to League of Nations Health Office. While its Constitution provides its primary mandate of work, the UN Charter also provides an important normative framework of reference to advance its health and human rights agenda. There is sufficient agreement that the UN and its agencies have obligations on the international plane to implement what they are charged to do.47 There is also sufficient mandate as well as obligation in international law that requires WHO to promote and the right to health globally and domestically within its Member states.
In international human rights law, states are the principal duty holders but international organizations possess secondary obligations in international law.48 The United Nations system of human rights obligations have been conceived as “external”, “internal”, and “hybrid”.49 The external conception would view WHO as a subject of international law, with capacity to enter into legal relations on the international plane, an obligation to respect legal duties independently of the rights and obligations of its members.50 The “internal” conception of WHO’s human rights responsibilities would comprise its internal legal order. WHO is bound by international human rights law as a result of being tasked to promote them by its Constitution.51 Finally, the “hybrid” conception would argue that WHO is bound by international human rights law to the extent its members are bound.52 The transfer of governance functions from states to WHO is viewed as “functional treaty succession” by WHO to the States human rights obligations.53
Under the WHO Constitution, it can be argued that there are human rights duties that WHO possesses independently of member states, under international law. Constitutive treaties are viewed as living instruments interpreted in a dynamic manner in accordance with evolving demands faced by the organization, in order to best give effect to its purposes.54 Article 31 of the Vienna Convention on the Law of Treaties provides that a “treaty shall be interpreted in good faith in accordance with the ordinary meaning to be given to the terms of the treaty in their context and in the light of its object and purpose,” and taking into account, inter alia, “any subsequent practice in the application of the treaty which establishes the agreement of the parties regarding its interpretation”.55 This practice of international organizations enjoins members as well as organs of the organization such as the World Health Assembly and the WHO Secretariat as actors in WHO’s constitutional interpretation.56
WHO is a key actor in implementation of human rights provisions in the WHO FCTC and IHR. It can be argued that rights related interpretations by WHO or its bodies within the course of its institutional life and objectives and undisputed by their members, are authoritative precedents that bind WHO and its Member States. The challenge at WHO has been the limited consensus on all human rights issues that undermines evidence of consent of all members to the breadth of human rights norms. Another legal basis of WHO’s human rights responsibility is the implied powers doctrine for institutional effectiveness and functional necessity. Implied powers would enable the discovery of further authority inherent in WHO’s constitution. This would answer critics who argue that the human rights provisions in the WHO Constitution are in the preamble and not binding. The International Court of Justice (ICJ) has identified implied powers as international organizations’ inherent capacities and powers which comprise: those arising by necessary implication out of their constitutions as being essential to the performance of their duties, those necessitated by the discharge of their functions, and those appropriate for the fulfilment of their stated purposes.57
3.1. WHO’s Record on Global Health Governance
WHO’s role in health and human rights is also supported by its accomplishments over the past fifty years despite the limits. A 13-year effort by the World Health Organization resulted in the complete eradication of smallpox from the planet in 1980.58 WHO was able to offer its “energy as a catalyser of global efforts by bringing together scientists, governments, health workers, and ordinary citizens in the fight against smallpox”.59 Polio, tetanus, measles, whooping cough, diphtheria and tuberculosis continues to kill children. In 1974, only 5 per cent of children in developing countries were immunized against these diseases.60 Today, as a result of the efforts of UNICEF and WHO, there is an 80 per cent immunization rate, saving the lives of more than 3 million children each year.61 WHO has helped to reduce child mortality rates – through oral rehydration therapy, water and sanitation and other health and nutrition measures undertaken by UN agencies, child mortality rates in the developing countries have been halved since 1960, increasing the life expectancy from 37 to 67 years.62 A WHO programme also has saved the lives of 7 million children from going blind from the river blindness and rescued many others from guinea worm and other tropical diseases.63 The WHO Health for All Strategy was established in 1989 and aims to provide primary health care for all people.64 Primary health care is a blend of essential health services, personal responsibility for one’s own health, and health-promoting action taken by the community.65 Despite the shortcomings, some of WHO’s achievements in conjunction with the Health for All program include a rise in life expectancy and an increase in the number of children receiving immunizations.66 WHO works closely with other organizations in the United Nations system.67 WHO with FAO established the Codex Alimentarius Commission to implement the Joint FAO/WHO Food Standards Programme.68
At the normative level, WHO has in the last decade led the adoption of the WHO FCTC as well as the IHR, two international legally binding instruments and a large body of soft law to promote global health. Despite these predominantly medico-technical achievements, WHO has been criticized for ignoring the importance of developing international law to advance its health mandate.69 Meier has provided a historical and institutional account and critique of challenges facing WHO in the development of health rights arguing that WHO’s historical lack of interest in using international law for global health extended in particular to disinterest in adopting a human rights based approaches to global public health.70 WHO has relied too much on the medical model of health and ignoring the importance of law and other social variables affecting health.71 Fidler argues that the lack of interest of WHO to use of international law is its predominant reliance on medical-technical ethos as well as favouring voluntary compliance instruments over legally binding ones. Public health experts argue that voluntary compliance provides a stronger basis for public health measures than legal compulsion that would be the bedrock of WHO led international legal regimes.72 Besides the numerous WHO World Health Assembly resolutions, notable standards setting activities by WHO include those to ensure safe drinking water,73 clean air, the highest quality of biological and pharmaceutical preparations, mobilizing together experts in many disciplines to establish standards that are practical and feasible, ensuring that laboratories dealing with highly infectious material work under safe conditions and helping developing countries to establish a list of essential pharmaceuticals from those currently available on the market. Some of these guidelines qualify for a binding international treaty underpinned by human rights principles but WHO has not taken steps to transform these guidelines as legally binding instruments and are merely voluntary instruments. These guidelines address matters of key human rights importance. For example, the WHO Guidelines for Drinking Water Quality can be argued to expound on the WHO’s definition of health as a state of complete physical, mental and social well-being and not merely the absence of disease or infirmity.74 The Guidelines can also be construed to contribute towards the realization of the recent Declaration of the UN General Assembly of a human right to water and sanitation.75 The challenge for WHO has been the limited monitoring of implementation of the guidelines into domestic law in part due to limited legal technical expertise.
3.2. WHO and Contemporary Challenges for Governance of Health Rights
A number of factors undermine WHO’s governance of health rights: the position of some WHO member States that the right to health is vague and ambiguous, the perceived lack of concrete methodology to monitor health rights, and the contested legal status of the right to health in international and domestic law. Other challenges that face the wider United Nations include the proliferation of undue vested interests by big business.76 This has been so despite the work of the special rapporteurs to the right to health in embedding health rights within the United Nations system.77 Despite the clarity of the regime of international responsibility of States and increasingly corporations, the issue raises challenges in regard to international organizations on issues of attributability.78 The issue of responsibility also relate to whether International Organizations could be responsible for acts of members.79 Recently, WHO has led the adoption of the WHO FCTC and IHR. These instruments provided opportunities for more comprehensive statements of the right to health and other health rights. However, opposition by some States during their negotiation prevented more bold provisions on human rights.
The crucial role of the WHO as a site for development of health rights must be viewed in the context of the wider United Nations. Under Article 55(b) of the United Nations Charter, the United Nations is required to promote solutions of international economic, social, health and related problems. Challenges faced in UN system wide human rights programming impacts on WHO as it is composed of the same State membership. WHO collaborates with other UN agencies such as Food and Agriculture Organization80 (FAO) and UN Habitat81 on the thematic Special Procedures of the Human Rights Council. Recent developments in the UN system have shown reluctance of States to endow UN agencies with a mandate to monitor human rights norms. This is especially so where the UNDP is a coordinating unit for UN health programmes at the country level. The UN Children’s Fund, the United Nations Population Fund and the UNAIDS all complement WHO’s health and human rights work including at the national level. In fact the UNDP collaborates extensively with WHO on several public health programs. However, the 2007–2008 final strategic plan of the United Nations Development Programme (UNDP) sets out a qualified mandate on human rights for the UNDP, affirming that while it “should uphold universal human rights standards,” it “cannot create rules/standards or monitor human rights.82 The board authorized a “human development approach” rather than a human-rights-based approach to the UNDP’s work.83 The strategic plan and framework singled out democratic governance, strengthening national human rights institutions; women’s rights and gender mainstreaming; and the protection of the human rights of people affected by HIV/AIDS for action.84 This attempt to curtail standard setting work of UN agencies has been roundly criticized.85 Darrow and Arbour have decried the exclusion of standard setting from operational work of UN agencies.86 The UN Charter states that in the event of a conflict between the obligations of the Members of the United Nations under the Charter and their obligations under any other international agreement, their Charter obligations shall prevail.87 The normative lessons for WHO is to affirm the supremacy of the Constitution as well as the UN Charter as the normative and operational foundation for its work especially with other UN agencies at the country level. Therefore, the Charter imposes a common obligation for the constituent parts of the UN system to promote human rights and contrary actions and resolutions by UN member states undermines country level human rights work by agencies like WHO. Restrictive UN Resolutions demonstrate pressures faced by the UN to exclude standard setting from field work contrary to UN’s purposes and system coherence. Prohibition on monitoring is contradictory as UN member States regularly request for human rights technical assistance. This would undermine WHO’s support to domestic human rights institutions and reporting to international human rights monitoring bodies. Resolutions that undermine human rights ignore the increased demands of civil society and end users of global health for WHO and other UN agencies to promote human rights.88
Another challenge facing health and human rights mandate of WHO is the increasing neo-liberalist health reforms sweeping the global South such as Latin America and Africa. A number of countries such as Rwanda have implemented health insurance schemes been resisted by others such as Kenya. A Report by the International Finance Corporation showed an increasing private sector involvement in healthcare in Africa and in some countries such as Nigeria and Uganda, by over 50%.89 Some of these schemes are bound to challenge WHO’s constitutional mandate and primary healthcare strategy of health for all. WHO’s human rights efforts could face challenges of being reconciled with privatised healthcare and health systems. This is because the poor in developing countries would not be able to afford costly basic health services and the challenges of potential capture of public health decision making by private and corporate actors is real.
The challenge is for WHO’s human rights mechanisms to deal effectively with rights of end users such as participation, access and availability of healthcare services. WHO is an international organization and the secretariat cannot directly decide for its member States. However, the WHO World Health Assembly and WHO regional committees can play a crucial role in adopting resolutions and other strategies to reinforce health rights. This can protect the poor in developing countries from privatisation that threatens access to health care for the majority poor in developing countries. WHO’ human rights mandate is also constrained or facilitated by the trade liberalization under global, regional and bilateral trade regimes and WHO faces challenges of engaging with these entities due to limited internal legal and technical capacity especially in its regional offices. WHO’s engagement with regional trade organizations is crucial to advocate fair and equitable health policies if WHO’s role in promoting health rights and protection of the poor from the vagaries of privatization will be protected and upheld.90 Therefore, human rights provides normative and institutional mechanisms to tackle the negative impacts of privatisation on healthcare provision especially by promoting access and participation of end users as well as accountability and transparency in health decision making that promotes the public, not private interests.
One of the human rights challenges is ensuring that the ultimate end users of its policies, communities and marginalized groups such as women and children are appropriately represented in its governance. WHO has over the years developed mechanisms for the participation as observers of non-governmental organizations in its governance mechanisms such as the World Health Assembly.91 However, there is evidence that suggests that international civil society groups are predominantly represented. Often in many contexts there has been a fractious relationship between more ‘transnational NGOs’ who engage with WHO but not with marginalized local groups they claim to represent and those more ‘national level NGOs’ who do have better links to the grassroots. Despite this, a number of grassroots NGOs have in the context of the Convention on the Elimination of Discrimination against Women (CEDAW) and the International Covenant on the Economic, Social and Cultural Rights (ICESCR) worked to claim their rights. For example, some grassroots women groups have used CEDAW to claim their reproductive rights which have been a key aspect of WHO’s health and human rights mandate.92
WHO efforts to promote human rights in local communities in Member States have limitations. Many WHO member States abhor certain rights such as reproductive rights and WHO cannot directly be seen to advocate certain rights as that would be viewed as infringement of their sovereignty. Despite these limitations, there are evolving mechanisms that offer opportunities for WHO’s promotion of human rights. With human and financial resource constraints facing WHO, an opportunity is for WHO to promote access through normative frameworks such as intervening in CEDAW to promote access by communities, adopting global or regional resolutions to promote health rights. The adoption of an Optional Protocol to the International Covenant on Economic, Social and Cultural Rights offers an important framework for strengthening the role of WHO and direct participation of all stakeholders in the promotion of health rights within the framework of the ICESCR and the Protocol.93 The Protocol adopted in 2008 has already garnered 33 signatories and 2 Parties.94 By providing for individual complaints procedures in cases of breaches of economic, social and cultural rights, the Optional Protocol on entry into force will provide an important mechanism for promoting and protecting health rights.95 A similar regional mechanism under the European Charter of Social Rights has already led to successful complaints including to protect health. By July 2006, eight years after the entry into force of the CCP, thirty-four complaints had been made.96 These complaints have been made against nine of the fourteen states that are bound by the system (thirteen complaints against France; six against Greece; five against Portugal; three against Italy; two each against Belgium and Bulgaria; and one each against Finland, Ireland, and Sweden).97 Claims in health included the working conditions of health care workers in Finland exposed to radiation, discrimination in the provision of social and medical assistance in France the health hazards of working in lignite mines in Greece. Of the thirty-four complaints, all but three have been declared admissible.98 Of the thirty-one admissible complaints, the ECSR has upheld the complaint (wholly or partially) in seventeen cases, rejected the complaint in nine cases, and in five cases has not yet concluded its consideration of the merits. In the nine cases where the ECSR rejected the complaint, the Committee of Ministers adopted a resolution taking note of the ECSR’s report.
Moreover WHO has to depend on existing domestic legal and institutional measures to protect and promote health. Many countries have weak human rights institutions generally to promote access and accountability in issues of health and healthcare. Enforcement of human rights depends on the effectiveness of domestic institutions or courts of law. Public interest litigation while on the increase is still in its nascent stages in many WHO member States. Moreover, WHO cannot be viewed as promoting litigation against its member States. In such circumstances, WHO’s health and human rights mandates faces enforcement related challenges especially at the domestic level. The emerging opportunity has been accentuated by the continuing and new global health challenges such as HIV AIDS,99 tobacco control, malaria, tuberculosis, Avian Influenza and other major global health threats. Despite the poor financing of healthcare, many developing countries are working to enhance their health systems and mechanisms to promote health. This includes adopting laws and institutions for health promotion such as tobacco control legislation, reform of public health legislation and development of national human rights laws as well as institutions. In countries such as India, Uganda and Bangladesh, activists have successfully litigated for health based on health rights.100 The following parts explores the international legal environment as well as options for promoting WHO’s health and human rights mandate.
4.1. Repositioning WHO Mandate in the Context of United Nations Law
Following the call by the UN Secretary-General (UNSG) for all UN agencies to mainstream human rights work as a cross-cutting strategy,101 WHO has responded to this call.102 The UNSG Directives state that the realization of human rights is the objective of UN development cooperation that is about building the capacity of rights-holders to claim their rights & duty-bearers to fulfil their obligation.103 It states that human rights principles must guide design, implementation, monitoring and evaluation of development policies and programmes.104 Moreover, the 2005 World Summit Outcome called upon all parts of the United Nations to promote and mainstream human rights throughout the United Nations system.105 The UN Charter provides for the role of WHO within the wider UN system framework.106 In terms of the specific actions required of the organization, the Charter provides that “the United Nations shall promote . . . (c) universal respect for, and observance of, human rights and fundamental freedoms for all without distinction as to race, sex, language, or religion.”107 Moreover, “all Members pledge themselves to take joint and separate action in co-operation with the UN for the achievement of the purposes set forth in Article 55.”108
Much of international human rights law is considered customary international law despite its limitations. The unfairness of pre-colonial and colonial customary international law has steered developing countries to prefer codification and progressive development of international law through treaties. Moreover, with nearly 200 Member States today compared to the 40 a century ago, achieving the requisite opinion juris and consistent State practice has become problematic. Despite these limitations, the advantage of customary international law is that it is not necessary for a State to formally accept a rule in order to be bound by it, as long as the overall State practice on which the rule is based is “widespread, representative and virtually uniform” and accepted as law. It is in this context that the Universal Declaration of Human Rights contains a range of socioeconomic rights including some health rights which have acquired the status of customary international law.109 A number of reasons for this conclusion include the near universal membership of these treaties, the over 115 States that have constitutional right to health or health care,110 the recent adoption by the General Assembly of an individual complaints mechanism for the International Covenant on Economic, Social and Cultural Rights111 and the universal acceptance of the millennium development goals.112
In the case of the UN and its system organizations, there is a strong case for arguing that the fundamental values enshrined and enhanced by the UN, including the UDHR, are binding not only on the member states but also on the organization itself. This is the application of a theory of constitutionalism to the UN system.113 On this basis, it can be argued that the WHO Constitution combined with customary international law require WHO to respect and protect human rights in its policies, programs, and activities and this includes both promoting new and existing standards as well as vigorously protecting human rights. WHO Member States by including human rights in the Constitution wanted to prevent human rights violations in WHO’s global health mandate but did not anticipate potential violations through its actions or neglect. It may be argued that in the context of the wider United Nations, the legal doctrine on the accountability of international organizations as distinct from states was at a nascent stage when the United Nations including its specialized agencies such as WHO were created in 1948.
Furthermore, relevant international law was less developed but has evolved significantly to date. The failure of the founders to imagine the United Nations as a human rights duty bearer was inevitable, but the situation since 1945 has evolved.114 According to one scholar, “in fact, a constitution comprises a political order and regulates that order in terms of the competences of different institutions and in terms of the relations between the subjects of that order. This signifies that the laws produced by the UN’s legal order potentially have applicability to both institutions and states, depending upon the nature of the activities undertaken. Human rights obligations, which are increasingly becoming an expression of the common constitutional traditions of States, can become binding upon [organizations] in different ways: through the terms of their constituent instruments; as customary international law; or as general principles of law or if an [organization] is authorized to become a party to a human rights treaty”.115 In this regard, WHO is also bound by international human rights law.
These conclusions are consistent with contemporary jurisprudence and analysis that show that international organizations such as the World Bank have human rights obligations in international law.116 The duty of WHO as a subject of international law include, the duty to “promote” human rights, as stated in the UN Charter read with the WHO Constitution. This is consistent with Article 38(1)(c) of the statute of the ICJ, and customary international law, that the minimum obligation owed by any subject of international law is a “duty of diligence” to ensure that the subject’s own policies, actions, or possible neglect do not undermine the human rights obligations of other subjects of international law.117
The duty of WHO to take reasonable measures,118 to ensure that third parties do not violate health rights within the scope of its mandate has precedents within the United Nations system. These include the role of the UN High Commissioner for Human Rights,119 and UN High Commissioner for Refugees.120 The duty would hence arise where individuals or communities may be exposed to human rights violations within the scope of WHO-supported programs. The implication is that WHO must act proactively to anticipate, analyze, and mitigate these risks and potential sources of violation of health rights in partnership with national authorities as the principal duty bearers under the international human rights treaties they have ratified.
In the UN system, “promotion” is often viewed as distinct from “protection”, the former viewed as awareness raising, education, technical cooperation, and capacity building, while the latter includes confrontational and juridical activities such as investigations, monitoring, casework, public reporting, and advocacy. There is often pressure to focus on promotion and ignore juridical protection, yet promotion can be undermined without an option of legal actions. The ability of the United Nations to promote human rights depends to a significant extent upon its ability to protect, not simply build capacity. Undue rigid distinctions between protection and promotion risk undermining the impact of UN-programs or even lead to complicity in human rights violations. The implication is that WHO national capacity building programmes need to be grounded in its capability to intervene directly at the international, regional and domestic levels to protect health rights.
4.2. Public International Law Implications for WHO’s Human Rights Competence
According to the International Court of Justice, international organizations are subjects of international law and, as such, are bound by any obligations incumbent upon them under general rules of international law, under their constitutions or under international agreements to which they are parties.121 It is in this context that the International Law Commission has devoted efforts to elaborate rules for responsibility of international organizations. The ILC Draft Articles on the Responsibility of International Organizations include the requirement that the organization “make full reparation” for injury caused by internationally wrongful acts.122 A reasonable body of evidence in the practice of international organizations supports this duty to grant remedies for violations as is the case in the International Atomic Energy Agency (IAEA).123 The type or blend of remedies depends upon the context and nature of the human rights violation to which United Nations responsibility attaches. The ILC notes, that “assurances and guarantees of non-repetition” have been given by international organizations in response to internationally wrongful acts.124 International organizations can offer reparations outlined in the ILC draft articles, as well as other innovative and flexible domestic accountability mechanisms.125 Remedies must take into account the institutional culture, political context, and internal incentive structures specific to each (UN) agency.126 The mandate and functions of the WHO point to a positive obligation to “fulfil” human rights and support member states in fulfilling human rights commitments. This legal obligation is viewed to apply to international organizations including the United Nations.127
The ILC has also adopted a draft article that provides that an international organization incurs international responsibility if it aids or assists a state or another international organization in committing an internationally wrongful act.128 A UN agency can be complicit in human rights violations perpetrated by states or other actors or directly legally responsible where it has knowledge of the circumstances of those violations. This principle reflects the increasing recognition of human rights obligations of non-state actors.129 To “aid or assist” captures a plethora of actions and omissions of the UN agency, including discriminatory policies, inaccessible or unaffordable services and misuse of the agency’s status for undue political cover.130 This view is consistent with the practice of private-sector participants in the Global Compact.131 The wider acceptance of a legal duty, as a human rights issue rather than criminal responsibility, could add valuable stimulus to ensuring that human rights are more widely, consistently and effectively promoted by the United Nations.132 However, the limited practice and scholarship make it difficult to conclude that a norm of this kind is a settled principle of international human rights law.133 The 2005 World Summit reiterated that the three pillars, human rights, development, and peace and security, of the UN system are interrelated and the United Nations must not work in any of these areas in isolation. WHO’s global health mandate encompasses these pillars.134 In addition, the emerging law on the responsibility of international organizations, in its draft Article 35, paragraph 1, states that an international organization cannot invoke its rules to justify non-compliance with its obligations under international law entailed by the commission of an internationally wrongful act.135 As the ILC observes, this principle finds a parallel in the principle that a state may not rely on its internal law as a justification for failure to comply with its obligations resulting from internationally wrongful acts.136 Therefore, one can reasonably conclude that decisions of the governing bodies of UN specialized agencies such as WHO, to the extent that these decisions constitute a source of internal rules for the conduct of operations, cannot be invoked to justify breaches of the more fundamental Charter-based sources of human rights obligation binding upon these agencies under international law.
5.1. Enhancing WHO’s Human Rights Capacity-General
The relationship between WHO and its Member States is often complex in efforts to implement a human rights approach across WHO’s global and country work. The capacity of states to provide health as human rights benefits to local populations is far beyond evident. It is in this context that options to enhance WHO’s governance of health to promote human rights is paramount. In this context, WHO is engaging with Member States, other UN agencies, programmes and UN human rights supervisory mechanisms. WHO provides legal technical assistance to its Member States as well as raising awareness on the right to health within and outside WHO. It has continued to advance the right to health through the adoption of an internal human rights policy and developing relevant indicators.137 A WHO Health and Human Rights Unit and Strategy is in place. However, these efforts are in evolution and require comprehensive institutional, legal and practical reforms within WHO to strengthen the organization as a site for the development and implementation of health related human rights.
5.2. Supervision of Global and Regional Health and Human Rights Processes
Global health agencies including WHO are international institutions endowed with powers as well as obligations and perform tasks as an international administrative agency. WHO performs a fiduciary function in promoting and protecting global public health as opposed to the traditional means of implementation of international law through dispute settlement as for example provided under several treaties and UN Charter. The UN human rights system is generally non-confrontational in character. It also does not seem to rely solely on violations and injury to individuals and states as the criteria for enforcement. Preventive actions also help to deter potential violations of human rights hence the importance not only of redressing violations but to prevent them occurring in the first place. With sufficient legal basis, the WHO institutional model can help advance health and human rights by focusing on its strengths in cooperation, rather than confrontation. The weakness is this model relies on consent of States, may undermine human rights and health norms and legitimize interests of some States or their national anti-health rights policies. However, increasing NGO and public scrutiny of WHO can enhance its adaptation to undertake institutional supervision and implementation of health related human rights. Moreover, international supervision can be undertaken jointly by other UN agencies and mechanisms.
There are several mechanisms for supervision that WHO can employ. Firstly, reporting is an important supervisory mechanism: WHO already has routine reporting system and urges States to report on matters affecting health and it could adopt a resolution to require member States to report on their implementation of health related human rights. Secondly, WHO can conduct factual and evidence based research on the de facto implementation of health related rights by its Member States. Thirdly, monitoring of country progress is an important way of assessing a WHO Member States compliance with health related human rights obligations. Finally, WHO regional governance can promote regional human rights mechanisms. For example, the WHO African Regional Office could support the African Commission on Human and Peoples Rights or the WHO Americas Office could support the work of the Inter-American Human Rights institutions. Such assistance could be provided through direct submissions, adoption of relevant resolutions and country technical and capacity building support in reporting health and human rights issues in the context of regional human rights mechanisms.
This position reflects existing WHO law. For example, under the IHRs 2005, the WHO Director-General “shall determine, on the basis of the information received . . . whether an event constitutes a public health emergency of international concern in accordance with the criteria and the procedure set out in these Regulations”.138 To help WHO member states identify what may or may not constitute a public health emergency of international concern, the IHRs 2005 provide members with a decision instrument referred to as Annex 2 of the IHRs 2005. A public health emergency of international concern must be reported by the member state to the WHO for final determination. Article 10 requires member states to disclose material information on health threats and open its borders to WHO inspection. Although the IHR does not include an enforcement mechanism per se for the States which fail to comply with its provisions, the potential consequences of non-compliance, especially in economic terms, are a powerful compliance tool.139
5.3. International Regulation, Rights Standard Setting and Monitoring: Correcting Missed Opportunities
WHO can strengthen its capacity to advance the progressive development of health related human rights through international law making, standard setting and monitoring. Article 19 of the WHO Constitution provides the necessary powers to develop international law. WHO has led the development of the WHO FCTC that has made limited progress on restating the right to health.140 WHO has also passed over 40 WHA Resolutions relating to human rights. While these are considered soft law, WHO Resolutions both at the global and regional level have an important potential of facilitating the progressive development of not only international health law but also global health rights. The United Nations system has facilitated and sped up the customs or treaty creating process by providing a forum where States are willing to consolidate general rules of international law. The United Nations system also provides a forum where majority States help to overcome individual dissenting States in order to agree on general standards of behaviour. In this way, WHO health and human rights related resolutions can constitute a normative core of subsequent practice and the basis for drafting future treaties or the evolution of customary rules). In fact, those agreed standards such as WHO Resolutions represent a bridge between previous normative vacuum and future detailed international legally binding rules afforded by a treaty or customary rules. Such WHO resolutions would provide the basic guidelines and treaty provisions or customs which provide the nuts and bolts to already consistent and established rules by creating mechanisms for enforcement, or add further details to existing rules eventually evolve as customary rules or become the basis of treaties.
Article 19 of the WHO Constitution provides the necessary powers to develop international law. WHO has led the development of the WHO FCTC that has made limited progress on restating the right to health.141
Furthermore, Articles 15 and 16 of the IHR have endowed WHO with powers to make recommendations and standards for the implementation of aspects of the Regulations. Under the IHR, once WHO has determined that a particular event constitutes a public health emergency of international concern, the IHR requires WHO to issue “temporary” or “standing” recommendations in response to an emergency. Temporary recommendations expire three months after their issuance but may be modified or extended for additional periods of up to three months. The IHR 2005 also allows the WHO to issue standing recommendations with respect to specific, ongoing public health risks.
Thus, the current IHRs 2005, which formally grant the WHO power to issue recommendations and alerts, represent a very significant step for the organization in role as an international regulatory and standard setting Organization. The revisions to the IHRs have effectively transformed the WHO from a coordinator of public health services into an international health governance or regulatory body. This is an important mechanism that provides a positive step for WHO’s role in standard setting to advance health and human rights. This represents an exercise of human rights obligations of WHO in international law. This also reflects current legal scholarship that emphasizes that the state is no longer the exclusive participant in the international legal process, even though it remains the dominant actor in law-making.142
Indeed many UN specialized agencies already monitor human rights including through the implementation of complaints procedures. The case of UNESCO’s human rights monitoring shows that there should not arise any jurisdictional issue with United Nations’ human rights system. In 1953, UNESCO instituted a procedure for its executive director to examine complaints received from private persons or associations alleging human rights violations by states.143 Under that system, as revised in 1978, the Committee on Conventions and Recommendations (CCR) examines cases concerning violations of human rights in UNESCO’s field of competence, including the rights to education, to share in scientific advancement and to enjoy its benefits, to participate freely in cultural life, and to information, including freedom of opinion and expression.144 Cases involving “individual and specific” human rights violations are examined by the CCR in private, whereas “questions of massive, systematic or flagrant violations of human rights and fundamental freedoms” may be considered by UNESCO’s Executive Board and General Conference in public meetings. UNESCO also adopted dispute settlement mechanisms under its Convention Against Discrimination in Education, as well as through a Protocol (under the same convention) that entered into force in 1968 and instituted a Conciliation and Good Offices Commission responsible for facilitating settlement of any disputes arising between states parties.145
Furthermore, Article 24 of the ILO Constitution grants workers’ and employers’ organizations the right to submit to the ILO Governing Body a representation or complaint against any member state that, in its view, “has failed to secure in any respect the effective observance within its jurisdiction of any Convention to which it is a party.” Under Article 26, any member has the right to file a complaint with the ILO if it is “not satisfied that any other member is securing the effective observance of any Convention which both have ratified.146 ILO’s Governing Body Committee on Freedom of Association, has examined more than 2,100 cases since its creation in 1951.147 Finally, WHO could establish an independent Body of experts to advise the organization in implementing a comprehensive human rights strategy including its monitoring of health related human rights in WHO law as well as wider international human rights law.
5.4. Promoting Dialogue with Member States: The Role of Good Offices of the WHO Director-General and Regional Directors
WHO’s mandate increasingly emphasizes the importance of prevention and promotion that focus on communities, groups and populations. WHO has adapted its institutional and governance mechanisms to cope with changes resulting from globalization of public health, security etc but these require adaptation towards a strong rights based thrust. There are strong imperatives for the Director General of WHO to develop her “Good Offices” to promote global public health and human rights including and in the implementation of the WHO FCTC, the IHR as well as other key WHO health and human rights policies. The same responsibility applies to WHO’s Regional Directors in the six WHO Regions. The Secretary General of the United Nations and others have exercised a number of functions referred to as good offices aimed at preventing humanitarian conflicts as well as human rights abuses.148 General Comment No 14 recognizes the importance of collective human rights and public health. The Comment implies WHO secondary obligations of preventive nature such as state obligation to discourage the abuse of alcohol, the use of tobacco, drugs and other harmful substances under the right to a healthy natural workplace environment, to provide access to preventive and curative health services and education. Good Offices of WHO Director General can be used to meet these challenges.
5.5. Global Public Health Management that Promotes Human Rights
In the era of globalization of public health, WHO needs to strengthen its public health management functions to promote human rights. The WHO has already created principles, norms, and rules concerning public health. While this is a Constitutional mandate, globalization as well as institutional realities has led to an evolution of pragmatic global public health management that aims to counter existing and emerging public health threats. WHO’s public health management has led to norm development through soft law and guidelines.
For example, the implementation of Doha Agreement on TRIPS and Public Health149 and the need for utilization of TRIPS flexibilities to provide access to essential medicines especially for developing countries has led to WHO normative action in this area. This has included the adoption of the WHA Resolutions addressing these issues despite some related action at the World Trade Organization, WIPO and the UN General Assembly.150 The UN Resolution had declared that “there are apparent conflicts between the IPR regime embodied in the TRIPS Agreement and international human rights law,” and sought to establish “the primacy of human rights obligations over economic policies and agreements” (i.e. property rights).151 Besides other provisions, the Resolution requested intergovernmental organizations such as the WHO, UNDP, World Intellectual Property Organization(WIPO), United Nations Environment Programme and United Nations Conference on Trade and Development undertake a critical examination of TRIPS including a consideration of its human rights implications.
In May 2003, the WHO World Health Assembly (WHA) adopted a resolution recommending the creation of a time-limited body, Committee on Intellectual Property Rights, Innovation and Public Health (CIPIH), whose purpose was to evaluate the impact of IP protections on the development of new drugs and to issue a report analyzing its findings.152 The resolution urged all members ‘to reaffirm that public health interests are paramount in both pharmaceutical and health policies’ and ‘to consider, whenever necessary, adapting national legislation in order to use to the full the flexibilities contained in [TRIPS]. The subsequent Plan of action contains concrete action points to promote innovation, research and access to medicine.
5.6. Strengthening the Role of WHO in Regionalism to Promote Health Rights
WHO’s regions have important governance structures that can help harmonize health policies to promote human rights at the regional levels. The six WHO regions have regional committees that meet annually to agree on health priorities and strategies. Moreover, with key regional human rights treaties in Africa, the Americas and Europe, WHO’s regional offices may be better placed to promote health rights at the regional levels. In Africa, major regional human rights treaties make extensive provisions to promote and protect health. The African Charter on Human and Peoples Rights153 requires state parties to enact and implement laws to prohibit discrimination and harmful practices that endanger women’s’ health;154 respect women’s’ right to health;155 provide adequate, affordable and accessible health services to women;156 establish and strengthen pre-natal, delivery and post-natal health and nutrition services for pregnant and breast-feeding women.157 The Protocol to the African Charter on Human and Peoples’ Rights on the Rights of Women in Africa158 requires member states to: protect women’s reproductive rights by authorising medical abortion in cases of sexual assault, rape and incest;159 take measures designed to protect human health against pollutants and water-borne diseases;160 co-ordinate and harmonise general policies on health, sanitation and nutritional co-operation;161 and work with international partners to eradicate preventable diseases and promote good health on the continent.162 The Executive Council must also co-ordinate and take decisions on policies in areas of common interest to the member states, including health.163
The existence of a right to health in the African human rights treaties and mechanisms to advance those rights is of relevance to the health promotion work and activities of WHO African regional and country offices. However, WHO is yet to fully seize this opportunity. WHO African Region has recently strengthened its normative activities by establishing a human rights unit within its office. This important step aims to mainstream human rights across the WHO African Regional Office. This is also pertinent in the context of renewed cooperation in Africa between WHO and the African Union and sub-regional integration organizations such as the Economic Community of West African States (ECOWAS), the Southern African Development Community (SADC) and the East African Community (EAC). Several examples demonstrate this renewed interest. First, there are numerous memoranda of understanding (MOU) between WHO and regional organizations.164 A MOU between the African Union Commission (AUC) and the WHO was signed on 19 December at the WHO Headquarters in Geneva. The MOU defines the modalities of cooperation between the two organisations in support of Africa’s efforts to combat trypanosomiasis. Secondly, WHO has cooperated on joint health programmes with regional or sub-regional organizations. For example, WHO has worked with ECOWAS through its health arm, the West African Health Organization on river blindness control, reproductive health issues and on avian influenza. Thirdly, WHO has continued to monitor the impact of trade on health by undertaking awareness raising and technical capacity building activities.
While regionalism is an important mechanism for strengthening WHO’s human rights normative and programmatic work, using regional human rights mechanisms to promote health has been a neglected area of focus. Focusing on promoting global human rights standards and engaging in global processes by supporting State reporting in the arena of human rights can greatly strengthen the work of WHO’s regional offices in contributing to WHO’s global health work. WHO has over the years enhanced its engagement with civil society groups but the focus has been so much on health related civil society groups. The rule for admission of membership of NGOs into official relations will need to be revisited if a broader range of public interest NGOs are to be encouraged to participate in WHO’s work. Moreover, encouraging proactive NGO participation at the regional levels for example in WHO Regional Committee deliberations will enhance accessibility to national NGOs that would otherwise not be able to participate in rights related proceedings of WHO governing bodies in Geneva.
Global health agencies can play an important role in the advancement of health and human rights, catalysing on their technical competences in health. However, despite some constraints of legal, institutional and general governance, a proper interpretation of WHO Constitution, United Nations law, policy and practice and general international law point to an existing WHO international responsibility and in some respects an obligation to promote human rights and health. Therefore, WHO must proactively strengthen and adapt their governance mechanisms to advance health and human rights in international and domestic law. By supervising global and human rights processes within its mandate, enhancing monitoring and standard setting to further human rights normative work, strengthening good practices in global public health management and using the good offices of WHO Director General and the six Regional Directors to promote human rights, WHO can fully discharge its international responsibility and obligation to promote human rights in the arena of global health. Any future success will also depend on the extent of enhanced normative work across WHO Divisions as well as coordinating with governments and local communities to promote health rights. Equally important will be the role of the Regional offices in effectively monitoring the plethora of human rights instruments to advance WHO and its member States human rights and health goals. To conclude, the way forward for the World Health Organization is to scale up awareness raising on health and human rights, to broaden the scope of its human rights normative work and implementation, enhance participation of health actors in this work and coordinate effectively within WHO and its Member States and other relevant actors. This in turn requires that WHO adopts human right approaches to tackling global health threats such as tackling infectious diseases, noncommunicable diseases and the need to implement the millennium development goals,165 strengthening health systems, dealing with the health impacts of climate change,166 and the need to strengthen domestic public health governance. Finally, periodic review and evaluation of WHO’s use of its law making powers would greatly strengthen the role of WHO as an effective site for norm creation in human rights and health. The creation of a permanent monitoring body would create a mechanism to accomplish these policy goals.
Onzivusupra note 6.
Onzivusupra note 6.
Resolution WHA 51.7 16 May 1998: The Alma Ata Declaration (1978) reaffirmed health as a fundamental human right and the World Health Declaration (1998) further reaffirms WHO’s commitment to heath as a human right.
UNGA Document A/RES/S-26/2 2 August 2001online at: http://www.un.org/ga/aids/docs/aress262.pdf.
UNGA Document A/S-27/19/Rev.1 2002online at: http://www.unicef.org/specialsession/documentation/documents/A-S27–19-Rev1E-annex.pdf.
WHO Four Decades of Achievement v (1988) World Health Organization Geneva; Karen Tyler Farr “A New Global Environmental Organization” (1999–2000) 28 Georgia Journal of International and Comparative Law 493.
Burci and Henri-Vignessupra note 63 page 80.
Onzivusupra note 6.
WHO Constitution 1945Preamble.
Darrow and Arboursupra note 83 at p. 446.
Whitesupra note 113.
Darrow and Arboursupra note 83.
Senyonjosupra note 127; Andrew Clapham and Scott Jerbi “Categories of Corporate Complicity in Human Rights Abuses” (2001)24 Hastings International & Comparative Law Review 339.
WT/MIN(01)/DEC/2 14 Nov. 14 200141 ILM 755 (2002).
Adopted 27 June 1981OAU Doc. CAB/LEG/67/3 rev. 5 21 I.L.M. 58 (1982) entered into force 21 October 1986.