Eric A. Friedman, O’Neill Institute for National and Global Health Law, Georgetown University Law Center
The distance between binding global norms and reality could hardly be greater than in health. It has been well over 60 years since the WHO Constitution and Universal Declaration of Human Rights first put the right to health into international law, and approaching 40 years since the International Covenant on Economic, Social and Cultural Rights (ICSECR), with its universal right “to the highest attainable standard of physical and mental health,” took effect. A sizeable majority of the world’s national constitutions now include the right to health.
Yet gaping health inequities stubbornly persist. There is nearly a two generation gap in life expectancy between people born today in Sierra Leone (47 years) and Japan (83 years) (World Health Statistics 2013). The health gaps between rich and poor within countries parallels that among countries. In the United States, Native Americans on the Pine Ridge Reservation in South Dakota have a life expectancy some 30 years below the U.S. national average.
The right to health needs to be re-energized, strengthened in both form and substance. It needs to be re-imagined with clear standards, an expanded scope of immediate obligations, unambiguous principles of national and global health funding responsibilities, and strong mechanisms for accountability and enforcement at local, national, and global levels. The right needs the clarity to enable the public to better understand it and claim it. And it must be tuned to our globalized world, where forces beyond a single state’s control, including other international legal regimes (e.g., trade, investment), powerful transnational corporations, and mobile capital and people, significantly impact people’s right to health.
A Framework Convention on Global Health (FCGH) can be this vehicle for change, for giving new force to the right to health, to closing gross health inequities.
The two animating principles of an FCGH are global health equity (within and between countries) and the right to health. The treaty would establish standards to make the right to health more concrete, measurable, and enforceable, bringing precision to right to health and other economic and social rights requirements that states spend “the maximum of [their] available resources” towards and progressively realize these rights. It would codify and quite possibly go beyond standards in General Comment 14 of the Committee on Economic, Social and Cultural Rights, including expanding on the concept of immediate state obligations.
Beyond further defining the right to health, the FCGH would strengthen right to health accountability structures and processes, nationally (e.g., transparency and justiciability requirements) and internationally. It could enhance public, NGO, government, and media capacities for right to health understanding, advocacy, policymaking, and monitoring.
And an FCGH would create responsibilities for our interconnected world. It would include directives on how countries must respect – or even advance – the right to health as they engage other international legal regimes such as trade, investment, and the environment. Similarly, within countries, the treaty would promote Health in All Policies, possibly setting standards for conducting right to health assessments.
Advancing equity, the FCGH would provide guidance and set standards to ensure for all people the conditions required for health, including health care, public health, and social determinants of health, while establishing a national and global financing framework with well-defined obligations, providing sufficient funds for, at least, health care and public health (e.g., nutritious food, safe water, and adequate sanitation). Universal standards alone are unlikely to be enough to overcome deep-rooted inequities and marginalization. The FCGH would also need to directly address inequities that marginalized populations face, such as through measures to reduce barriers to health care access and requiring national strategies for addressing the health needs of marginalized populations.
The treaty’s targets and directives would need a careful balance between global requirements and country level flexibility, as the FCGH must respond to countries’ particular circumstances and enable their populations to participate in advancing the mandates under the FCGH. Issues not fully covered by the FCGH itself could be addressed in future protocols.
Earlier this month, more than thirty health advocates from around the world met to explore the possibilities of an FCGH and develop a strategy to advance it. Discussion and debate revolved around the exact nature and scope of the FCGH, its added value in light of the existing internationally codified right to health, the proper forum to adopt the treaty (WHO, the UN, or a third way, such as an innovative approach that could include non-state actors as parties), and potential risks of such a treaty. Participants powerfully raised the need for the process of developing an FCGH to empower people in today’s campaigns to advance the right to health, linking and ensuring the treaty’s relevance to national struggles and social justice movements, including unions. A full report of the meeting will soon be available.
What next? The Joint Action and Learning Initiative on National and Global Responsibilities for Health (JALI), a global coalition exploring and advocating for an FCGH, is organizing a drafting committee to develop a framework for an FCGH to further clarify and build a consensus around the treaty’s principles and contents. The committee will seek inputs to strengthen the framework. The framework will form the platform for an FCGH network of individuals and organizations to further examine, develop, and advocate for an FCGH. This network should launch later in 2013. With the framework in place, widespread consultation on the FCGH will begin.