Ever more constitutions incorporate the right to health, courts continue to expand their right to health jurisprudence, and communities and civil society increasingly turn to the right to health in their advocacy. Yet the right remains far from being realized. Even with steady progress on numerous fronts of global health, vast inequities at the global and national levels persist, and are responsible for millions of deaths annually. We propose a four-part approach to accelerating progress towards fulfilling the right to health: 1) national legal and policy reform, incorporating right to health obligations and principles including equity, participation, and accountability in designing, implementing, and monitoring the health sector, as well as an all-of-government approach in advancing the public's health; 2) litigation, using creative legal strategies, enhanced training, and promotion of progressive judgments to increase courts' effectiveness in advancing the right to health; 3) civil society and community engagement, empowering communities to understand and claim this right and building the capacity of right to health organizations; and4) innovative global governance for health, strengthening World Health Organization leadership on health and human rights, further clarifying the international right to health, ensuring sustained and scalable development assistance, and conforming other international legal regimes (e.g., trade, intellectual property, and finance) to health and human rights norms. We offer specific steps to advance each of these areas, including how a new global health treaty, a Framework Convention on Global Health (FCGH), could help construct these four pillars.The authors conclude that -
... four pillars - incorporating the right to health into national laws, using creative strategies to increase the impact of national right to health litigation, empowering communities to claim their rights, and bringing the right to health to the center of global governance for health - are integrally intertwined. Social movements spur legal and policy reform. Legal and policy change creates new opportunities for litigation. Elevating human rights in and integrating it throughout global governance for health will facilitate national progress, even as national processes, priorities, and experiences should inform global action.
An FCGH could help to simultaneously erect all four pillars. A successful FCGH will need to incorporate strong compliance mechanisms. These would begin with regular, public country reports on how they are implementing the treaty. Whether by requiring an inclusive process in developing these state reports, explicitly considering parallel civil society reports in evaluating state compliance, or both, the treaty should ensure that evaluation of compliance is not based simply on states’ say-so. Reporting cannot be the end of compliance strategies, however. While countries have considerable self-interest in improving the health of their own and the world’s population, the treaty should also include creative incentives for compliance and sanctions for non-compliance. For example, certain forms of international funding might be available or ensured only for countries that are meeting their own funding obligations. Non-compliance might open up the possibility of suspension from the possibility of serving on the WHO Executive Board or UN Human Rights Council. Given the lives on the line, targeted sanctions of the sort usually reserved for traditional national security concerns, such as freezing assets and travel bans on individuals, could be options in severe ases. Any sanctions must themselves adhere to the highest human rights standards and not degrade the health and undermine the rights of the very people they are meant to help. Populations of countries whose governments are failing to meet their FCGH obligations should have a central role in determining what sanctions, if any, would be most appropriate and effective.
Critical to a successful FCGH will be a social movement that supports the treaty and the right to health more broadly. A powerful social movement, one that includes labor, environmental, and other broader concerns, can ensure that pressure for compliance comes from domestic as well as international sources. Indeed, a widely supported FCGH with clear standards could be a powerful tool for civil society advocacy in both the global South and North, even in countries that have not ratified the Convention themselves.
A comprehensive approach to advancing the right to health, backed by a global treaty, could prove a com- manding counterweight to competing interests and political forces, advance effective policies and mechanisms for implementing the right to health, further clarify human rights law and attendant obligations, and enhance accountability and enforcement through community, national, and international actions.
Due regard to each pillar, drawing on and adding to innovative right-to-health approaches and capturing the synergies among the pillars, holds much promise for global health. With bold, systematic, and innova- tive actions, human rights stand to have a transfor- mative impact in making global health better tomorrow than it is today.
We believe an FCGH could powerfully advance the right to health and close national and global health inequities. JALI [Joint Action and Learning Initiative on National and Global Responsibilities for Health] envisions a treaty developed through a broadly inclusive “bottom-up” process. While hoping that our ideas contribute, we know that ultimately the most important input into an FCGH will come from the people whose health realities are worlds away from our own. The treaty must speak to the real- ities of slum dwellers who live near centers of power yet lack the most basic services, to farmers who find themselves and their children without proper nour- ishment, and to the orphans and widows, indigenous populations, sexual minorities, women, people with disabilities, and others who often suffer the ugliest discrimination and most extreme poverty. It is their voices that JALI most hopes to hear and incorporate in guiding a process to develop an FCGH.