Giving Rights “Life Blood” Universal Access to Health under International Human Rights Law

1. Giving Rights “Life Blood”Universal Access to Health under International Human Rights Law Rick Lines, Senior Policy Advisor Damon Barrett, Human Rights Analyst International Harm Reduction Association “The right to HIV/AIDS prevention, treatment, care and support for migrants and ethnic minorities in Europe” Lisbon — 7 June 2007

2. International Human Rights Law • Universal Declaration of Human Rights (1948) • International Covenant on Civil and Political Rights (160 states ratified) • International Covenant on Economic, Social and Cultural Rights (156 states ratified) • International Convention on the Elimination of All Forms of Racial Discrimination (173 states ratified) • Convention on the Rights of the Child (193 states ratified) • General Comments of the Human Rights Treaty Bodies

3. “The vulnerable must be given priority in the response [to HIV/AIDS]” Declaration of Commitment United Nations General Assembly Special Session on HIV/AIDS June 2001

4. Human rights are universal in nature, and are entitled equally to all regardless of status.

5. Human rights are universal Charter of the United Nations (1945) — Art 1 One of the purposes of the UN is to promote and encourage “respect for human rights and for fundamental freedoms for allwithout distinction as to race, sex, language, or religion.”

6. Human rights are universal Universal Declaration of Human Rights (Art 2) Everyone is entitled to all the rights and freedoms set forth in this Declaration, without distinction of any kind…

7. All persons are rights holders by virtue of our membership in the human family. States do not grant us our human rights.

8. All persons are rights holders Universal Declaration of Human Rights (Art 1) All human beings are born free and equal in dignity and rights.

9. Human rights are not granted by states Universal Declaration of Human Rights(preamble) “recognition of the inherent dignity and of the equal and inalienable rights of all members of the human family is the foundation of freedom, justice and peace in the world”

10. Among these universal rights are the right to life and the right to the highest attainable standard of health.

11. The universal right to health Constitution of the WHO (1946) “The enjoyment of the highest attainable standard of health is one of the fundamental rights ofevery human being without distinction of race, religion, political belief, economic or social condition.”

12. The universal right to health International Covenant on Economic, Social and Cultural Rights (Art 12) “The States Parties to the present Covenant recognize the right of everyone to the enjoyment of the highest attainable standard of physical and mental health.”

13. States are obligated under international human rights law to respect, protect and fulfill these rights.

14. States obligated to respect, protect and fulfill these rights Committee on Economic, Social and Cultural Rights (GC 14) The right to health, like all human rights, imposes three types or levels of obligations on States parties: the obligations to respect, protect and fulfil…the obligation to fulfil requires States to adopt appropriate legislative, administrative, budgetary, judicial, promotional and other measures towards the full realization of the right to health.

15. States obligated to respect, protect and fulfill these rights Human Rights Committee on Art. 6 (Right to Life) “the protection of this right requires that States adoptpositive measures...it would be desirable for States parties to take all possible measures to…increase life expectancy, especially in adopting measures to eliminate …epidemics.”

16. State human rights obligations apply to everyone within its jurisdiction, without discrimination.

17. State obligation applies to everyone within its jurisdiction International Covenant on Civil and Political Rights (Art 2) “Each State Party to the present Covenant undertakes to respect and to ensure to all individuals within its territory and subject to its jurisdiction the rights recognized in the present Covenant, without distinction of any kind, such as race, colour, sex, language, religion, political or other opinion, national or social origin, property, birth or other status.”

18. State obligation applies to everyone within its jurisdiction Convention on the Rights of the Child (Art 2) “respect and ensure the rights set forth in the present Convention to each child within their jurisdiction without discrimination of any kind, irrespective of the child’s or his or her parent’s or legal guardian’s race, colour, sex, language, religion, political or other opinion, national, ethnic or social origin, property, disability, birth or other status.”

19. State obligation applies to everyone within its jurisdiction Human Right Committee, General Comment 15 “the general rule is that each one of the rights of the Covenant must be guaranteed without discrimination between citizens and aliens.”

20. State obligation applies to everyone within its jurisdiction Committee on the Elimination of All Forms of Racial Discrimination States have an obligation to guarantee the civil, political, economic, social and cultural rights of the whole population and not just citizens.

21. This includes the right to the highest attainable standard of health.

22. State obligation to fulfill the right to health to all without discrimination Committee on Economic, Social and Cultural Rights “Health facilities, goods and services have to be accessible to everyone without discrimination, within the jurisdiction of the State party….especially the most vulnerable or marginalized sections of the population, in law and in fact, without discrimination on any of the prohibited grounds.”

23. State obligation applies to everyone within its jurisdiction Committee on Economic, Social and Cultural Rights “Covenant proscribes any discriminationin access to health care and underlying determinants of health…on the grounds of race, colour…national or social origin…health status (including HIV/AIDS), …and civil, political, social or other status, which has the intention or effect of nullifying or impairing the equal enjoyment or exercise of the right to health”

24. State obligation to fulfill the right to health to all without discrimination Committee on the Rights of the Child and the Committee on the Elimination of All Forms of Racial Discrimination both agree that the provision of health services must not discriminate against non-citizens

25. Key Points in Human Rights Law • Human rights are universal in nature, and are entitled equally to all regardless of status. • All persons are rights holders. States do not grant human rights. • These universal rights include the right to life and right to health • States are obligated under international law to respect, protect and fulfill human rights. • State obligations apply to everyone within their jurisdiction, without discrimination. • This includes the obligation to fulfill the right to health.

26. National law and policy within any state may be “legal” within a domestic framework, and still not be compliant with International Human Rights Law

27. “Legislation and court orders can only declare rights. They can never thoroughly deliver them. Only when people themselves begin to act are rights on paper given life blood.” Dr. Martin Luther King, Jr. 1929-1968

28. For more information: Prevention of Discrimination and Protection of Indigenous Peoples and Minorities: The Rights of Non-Citizens Preliminary Report of the Special Rapporteur, Mr. David Weisbrodt 6 June 2001

29. Rick Lines, Senior Policy Advisor rick.lines@ihra.net Damon Barrett, Human Rights Analyst damon.barrett@ihra.net International Harm Reduction Association www.ihra.net