General Comments of the Committee on Economic, Social,
and Cultural Rights
The nature of states parties obligations (Article 2, para.1),
General Comment 3
CESCR, General Comment 3, UN ESCOR, 1990, Doc. No.
E/1991/23.
1. Article 2 is of particular importance to a full understanding
of the Covenant and must be seen as having a dynamic relationship
with all of the other provisions of the Covenant. It describes
the nature of the general legal obligations undertaken by
States parties to the Covenant. Those obligations include
both what may be termed (following the work of the International
Law Commission) obligations of conduct and obligations of
result. While great emphasis has sometimes been placed on
the difference between the formulations used in this provision
and that contained in the equivalent Article 2 of the International
Covenant on Civil and Political Rights, it is not always
recognized that there are also significant similarities.
In particular, while the Covenant provides for progressive
realization and acknowledges the constraints due to the
limits of available resources, it also imposes various obligations
which are of immediate effect. Of these, two are of particular
importance in understanding the precise nature of States
parties obligations. One of these, which is dealt with in
a separate General Comment, and which is to be considered
by the Committee at its sixth session, is the "undertaking
to guarantee" that relevant rights "will be exercised
without discrimination ...".
2. The other is the undertaking in Article 2 (1) "to
take steps", which in itself, is not qualified or limited
by other considerations. The full meaning of the phrase
can also be gauged by noting some of the different language
versions. In English the undertaking is "to take steps",
in French it is "to act" ("s'engage à
agir") and in Spanish it is "to adopt measures"
("a adoptar medidas"). Thus while the full realization
of the relevant rights may be achieved progressively, steps
towards that goal must be taken within a reasonably short
time after the Covenant's entry into force for the States
concerned. Such steps should be deliberate, concrete and
targeted as clearly as possible towards meeting the obligations
recognized in the Covenant.
3. The means which should be used in order to satisfy the
obligation to take steps are stated in Article 2 (1) to
be "all appropriate means, including particularly the
adoption of legislative measures". The Committee recognizes
that in many instances legislation is highly desirable and
in some cases may even be indispensable. For example, it
may be difficult to combat discrimination effectively in
the absence of a sound legislative foundation for the necessary
measures. In fields such as health, the protection of children
and mothers, and education, as well as in respect of the
matters dealt with in Articles 6 to 9, legislation may also
be an indispensable element for many purposes.
4. The Committee notes that States parties have generally
been conscientious in detailing at least some of the legislative
measures that they have taken in this regard. It wishes
to emphasize, however, that the adoption of legislative
measures, as specifically foreseen by the Covenant, is by
no means exhaustive of the obligations of States parties.
Rather, the phrase "by all appropriate means"
must be given its full and natural meaning. While each State
party must decide for itself which means are the most appropriate
under the circumstances with respect to each of the rights,
the "appropriateness" of the means chosen will
not always be self-evident. It is therefore desirable that
States parties' reports should indicate not only the measures
that have been taken but also the basis on which they are
considered to be the most "appropriate" under
the circumstances. However, the ultimate determination as
to whether all appropriate measures have been taken remains
one for the Committee to make.
5. Among the measures which might be considered appropriate,
in addition to legislation, is the provision of judicial
remedies with respect to rights which may, in accordance
with the national legal system, be considered justiciable.
The Committee notes, for example, that the enjoyment of
the rights recognized, without discrimination, will often
be appropriately promoted, in part, through the provision
of judicial or other effective remedies. Indeed, those States
parties which are also parties to the International Covenant
on Civil and Political Rights are already obligated (by
virtue of arts. 2 (paras. 1 and 3), 3 and 26) of that Covenant
to ensure that any person whose rights or freedoms (including
the right to equality and non-discrimination) recognized
in that Covenant are violated, "shall have an effective
remedy" (art. 2 (3) (a)). In addition, there are a
number of other provisions in the International Covenant
on Economic, Social and Cultural Rights, including Articles
3, 7 (a) (i), 8, 10 (3), 13 (2) (a), (3) and (4) and 15
(3) which would seem to be capable of immediate application
by judicial and other organs in many national legal systems.
Any suggestion that the provisions indicated are inherently
non-self-executing would seem to be difficult to sustain.
6. Where specific policies aimed directly at the realization
of the rights recognized in the Covenant have been adopted
in legislative form, the Committee would wish to be informed,
inter alia, as to whether such laws create any right of
action on behalf of individuals or groups who feel that
their rights are not being fully realized. In cases where
constitutional recognition has been accorded to specific
economic, social and cultural rights, or where the provisions
of the Covenant have been incorporated directly into national
law, the Committee would wish to receive information as
to the extent to which these rights are considered to be
justiciable (i.e. able to be invoked before the courts).
The Committee would also wish to receive specific information
as to any instances in which existing constitutional provisions
relating to economic, social and cultural rights have been
weakened or significantly changed.
7. Other measures which may also be considered "appropriate"
for the purposes of Article 2 (1) include, but are not limited
to, administrative, financial, educational and social measures.
8. The Committee notes that the undertaking "to take
steps ... by all appropriate means including particularly
the adoption of legislative measures" neither requires
nor precludes any particular form of government or economic
system being used as the vehicle for the steps in question,
provided only that it is democratic and that all human rights
are thereby respected. Thus, in terms of political and economic
systems the Covenant is neutral and its principles cannot
accurately be described as being predicated exclusively
upon the need for, or the desirability of a socialist or
a capitalist system, or a mixed, centrally planned, or laisser-faire
economy, or upon any other particular approach. In this
regard, the Committee reaffirms that the rights recognized
in the Covenant are susceptible of realization within the
context of a wide variety of economic and political systems,
provided only that the interdependence and indivisibility
of the two sets of human rights, as affirmed inter alia
in the preamble to the Covenant, is recognized and reflected
in the system in question. The Committee also notes the
relevance in this regard of other human rights and in particular
the right to development.
9. The principal obligation of result reflected in Article
2 (1) is to take steps "with a view to achieving progressively
the full realization of the rights recognized" in the
Covenant. The term "progressive realization" is
often used to describe the intent of this phrase. The concept
of progressive realization constitutes a recognition of
the fact that full realization of all economic, social and
cultural rights will generally not be able to be achieved
in a short period of time. In this sense the obligation
differs significantly from that contained in Article 2 of
the International Covenant on Civil and Political Rights
which embodies an immediate obligation to respect and ensure
all of the relevant rights. Nevertheless, the fact that
realization over time, or in other words progressively,
is foreseen under the Covenant should not be misinterpreted
as depriving the obligation of all meaningful content. It
is on the one hand a necessary flexibility device, reflecting
the realities of the real world and the difficulties involved
for any country in ensuring full realization of economic,
social and cultural rights. On the other hand, the phrase
must be read in the light of the overall objective, indeed
the raison d'être, of the Covenant which is to establish
clear obligations for States parties in respect of the full
realization of the rights in question. It thus imposes an
obligation to move as expeditiously and effectively as possible
towards that goal. Moreover, any deliberately retrogressive
measures in that regard would require the most careful consideration
and would need to be fully justified by reference to the
totality of the rights provided for in the Covenant and
in the context of the full use of the maximum available
resources.
10. On the basis of the extensive experience gained by the
Committee, as well as by the body that preceded it, over
a period of more than a decade of examining States parties'
reports the Committee is of the view that a minimum core
obligation to ensure the satisfaction of, at the very least,
minimum essential levels of each of the rights is incumbent
upon every State party. Thus, for example, a State party
in which any significant number of individuals is deprived
of essential foodstuffs, of essential primary health care,
of basic shelter and housing, or of the most basic forms
of education is, prima facie, failing to discharge its obligations
under the Covenant. If the Covenant were to be read in such
a way as not to establish such a minimum core obligation,
it would be largely deprived of its raison d'être.
By the same token, it must be noted that any assessment
as to whether a State has discharged its minimum core obligation
must also take account of resource constraints applying
within the country concerned. Article 2 (1) obligates each
State party to take the necessary steps "to the maximum
of its available resources". In order for a State party
to be able to attribute its failure to meet at least its
minimum core obligations to a lack of available resources
it must demonstrate that every effort has been made to use
all resources that are at its disposition in an effort to
satisfy, as a matter of priority, those minimum obligations.
11. The Committee wishes to emphasize, however, that even
where the available resources are demonstrably inadequate,
the obligation remains for a State party to strive to ensure
the widest possible enjoyment of the relevant rights under
the prevailing circumstances. Moreover, the obligations
to monitor the extent of the realization, or more especially
of the non-realization, of economic, social and cultural
rights, and to devise strategies and programmes for their
promotion, are not in any way eliminated as a result of
resource constraints. The Committee has already dealt with
these issues in its General Comment 1 (1989).
12. Similarly, the Committee underlines the fact that even
in times of severe resources constraints whether caused
by a process of adjustment, of economic recession, or by
other factors the vulnerable members of society can and
indeed must be protected by the adoption of relatively low-cost
targeted programmes. In support of this approach the Committee
takes note of the analysis prepared by UNICEF entitled "Adjustment
with a human face: protecting the vulnerable and promoting
growth,1 the analysis by UNDP in its Human Development
Report 19902 and the analysis by the World Bank
in the World Development Report 1990.3
13. A final element of Article 2 (1), to which attention
must be drawn, is that the undertaking given by all States
parties is "to take steps, individually and through
international assistance and cooperation, especially economic
and technical ...". The Committee notes that the phrase
"to the maximum of its available resources" was
intended by the drafters of the Covenant to refer to both
the resources existing within a State and those available
from the international community through international cooperation
and assistance. Moreover, the essential role of such cooperation
in facilitating the full realization of the relevant rights
is further underlined by the specific provisions contained
in Articles 11, 15, 22 and 23. With respect to Article 22
the Committee has already drawn attention, in General Comment
2 (1990), to some of the opportunities and responsibilities
that exist in relation to international cooperation. Article
23 also specifically identifies "the furnishing of
technical assistance" as well as other activities,
as being among the means of "international action for
the achievement of the rights recognized ...".
14. The Committee wishes to emphasize that in accordance
with Articles 55 and 56 of the Charter of the United Nations,
with well-established principles of international law, and
with the provisions of the Covenant itself, international
cooperation for development and thus for the realization
of economic, social and cultural rights is an obligation
of all States. It is particularly incumbent upon those States
which are in a position to assist others in this regard.
The Committee notes in particular the importance of the
Declaration on the Right to Development adopted by the General
Assembly in its resolution 41/128 of 4 December 1986 and
the need for States parties to take full account of all
of the principles recognized therein. It emphasizes that,
in the absence of an active programme of international assistance
and cooperation on the part of all those States that are
in a position to undertake one, the full realization of
economic, social and cultural rights will remain an unfulfilled
aspiration in many countries. In this respect, the Committee
also recalls the terms of its General Comment 2 (1990).
Notes
1 G.A. Cornia, R. Jolly and F. Stewart, eds.,
Oxford, Clarendon Press, 1987.
2 Oxford, Oxford University Press, 1990.
3 Oxford, Oxford University Press, 1990.
Persons with disabilities, General Comment 5
CESCR, General Comment 5, UN ESCOR, 1994, Doc. No.
E/1995/22.
1. The central importance of the International Covenant
on Economic, Social and Cultural Rights in relation to the
human rights of persons with disabilities has frequently
been underlined by the international community.1
Thus a 1992 review by the Secretary-General of the implementation
of the World Programme of Action concerning Disabled Persons
and the United Nations Decade of Disabled Persons concluded
that "disability is closely linked to economic and
social factors" and that "conditions of living
in large parts of the world are so desperate that the provision
of basic needs for all - food, water, shelter, health protection
and education - must form the cornerstone of national programmes".2
Even in countries which have a relatively high standard
of living, persons with disabilities are very often denied
the opportunity to enjoy the full range of economic, social
and cultural rights recognized in the Covenant.
2. The Committee on Economic, Social and Cultural Rights,
and the working group which preceded it, have been explicitly
called upon by both the General Assembly3 and
the Commission on Human Rights4 to monitor the
compliance of States parties to the Covenant with their
obligation to ensure the full enjoyment of the relevant
rights by persons with disabilities. The Committee's experience
to date, however, indicates that States parties have devoted
very little attention to this issue in their reports. This
appears to be consistent with the Secretary-General's conclusion
that "most Governments still lack decisive concerted
measures that would effectively improve the situation"
of persons with disabilities.5 It is therefore
appropriate to review, and emphasize, some of the ways in
which issues concerning persons with disabilities arise
in connection with the obligations contained in the Covenant.
3. There is still no internationally accepted definition
of the term "disability". For present purposes,
however, it is sufficient to rely on the approach adopted
in the Standard Rules of 1993, which state:
"The term 'disability' summarizes a great number
of different functional limitations occurring in any population
... People may be disabled by physical, intellectual or
sensory impairment, medical conditions or mental illness.
Such impairments, conditions or illnesses may be permanent
or transitory in nature."6
4. In accordance with the approach adopted in the Standard
Rules, this General Comment uses the term "persons
with disabilities" rather than the older term "disabled
persons". It has been suggested that the latter term
might be misinterpreted to imply that the ability of the
individual to function as a person has been disabled.
5. The Covenant does not refer explicitly to persons with
disabilities. Nevertheless, the Universal Declaration of
Human Rights recognizes that all human beings are born free
and equal in dignity and rights and, since the Covenant's
provisions apply fully to all members of society, persons
with disabilities are clearly entitled to the full range
of rights recognized in the Covenant. In addition, in so
far as special treatment is necessary, States parties are
required to take appropriate measures, to the maximum extent
of their available resources, to enable such persons to
seek to overcome any disadvantages, in terms of the enjoyment
of the rights specified in the Covenant, flowing from their
disability. Moreover, the requirement contained in Article
2 (2) of the Covenant that the rights "enunciated ...
will be exercised without discrimination of any kind"
based on certain specified grounds "or other status"
clearly applies to discrimination on the grounds of disability.
6. The absence of an explicit, disability-related provision
in the Covenant can be attributed to the lack of awareness
of the importance of addressing this issue explicitly, rather
than only by implication, at the time of the drafting of
the Covenant over a quarter of a century ago. More recent
international human rights instruments have, however, addressed
the issue specifically. They include the Convention on the
Rights of the Child (art. 23); the African Charter on Human
and Peoples' Rights (art. 18 (4)); and the Additional Protocol
to the American Convention on Human Rights in the Area of
Economic, Social and Cultural Rights (art. 18). Thus it
is now very widely accepted that the human rights of persons
with disabilities must be protected and promoted through
general, as well as specially designed, laws, policies and
programmes.
7. In accordance with this approach, the international community
has affirmed its commitment to ensuring the full range of
human rights for persons with disabilities in the following
instruments:
(a) the World Programme of Action concerning Disabled
Persons, which provides a policy framework aimed at promoting
"effective measures for prevention of disability,
rehabilitation and the realization of the goals of 'full
participation' of [persons with disabilities] in social
life and development, and of 'equality'";7
(b) the Guidelines for the Establishment and Development
of National Coordinating Committees on Disability or Similar
Bodies, adopted in 1990;8
(c) the Principles for the Protection of Persons with
Mental Illness and for the Improvement of Mental Health
Care, adopted in 1991;9
(d) the Standard Rules on the Equalization of Opportunities
for Persons with Disabilities (hereinafter referred to
as the "Standard Rules"), adopted in 1993, the
purpose of which is to ensure that all persons with disabilities
"may exercise the same rights and obligations as
others".10 The Standard Rules are of major
importance and constitute a particularly valuable reference
guide in identifying more precisely the relevant obligations
of States parties under the Covenant.
General Obligations of State Parties
8. The United Nations has estimated that there are more
than 500 million persons with disabilities in the world
today. Of that number, 80 per cent live in rural areas in
developing countries. Seventy per cent of the total are
estimated to have either limited or no access to the services
they need. The challenge of improving the situation of persons
with disabilities is thus of direct relevance to every State
party to the Covenant. While the means chosen to promote
the full realization of the economic, social and cultural
rights of this group will inevitably differ significantly
from one country to another, there is no country in which
a major policy and programme effort is not required.11
9. The obligation of States parties to the Covenant to promote
progressive realization of the relevant rights to the maximum
of their available resources clearly requires Governments
to do much more than merely abstain from taking measures
which might have a negative impact on persons with disabilities.
The obligation in the case of such a vulnerable and disadvantaged
group is to take positive action to reduce structural disadvantages
and to give appropriate preferential treatment to people
with disabilities in order to achieve the objectives of
full participation and equality within society for all persons
with disabilities. This almost invariably means that additional
resources will need to be made available for this purpose
and that a wide range of specially tailored measures will
be required.
10. According to a report by the Secretary-General, developments
over the past decade in both developed and developing countries
have been especially unfavourable from the perspective of
persons with disabilities:
"... current economic and social deterioration,
marked by low-growth rates, high unemployment, reduced
public expenditure, current structural adjustment programmes
and privatization, have negatively affected programmes
and services ... If the present negative trends continue,
there is the risk that [persons with disabilities] may
increasingly be relegated to the margins of society, dependent
on ad hoc support."12
As the Committee has previously observed (General Comment
No. 3 (Fifth session, 1990), para. 12), the duty of States
parties to protect the vulnerable members of their societies
assumes greater rather than less importance in times of
severe resource constraints.
11. Given the increasing commitment of Governments around
the world to market-based policies, it is appropriate in
that context to emphasize certain aspects of States parties'
obligations. One is the need to ensure that not only the
public sphere, but also the private sphere, are, within
appropriate limits, subject to regulation to ensure the
equitable treatment of persons with disabilities. In a context
in which arrangements for the provision of public services
are increasingly being privatized and in which the free
market is being relied on to an ever greater extent, it
is essential that private employers, private suppliers of
goods and services, and other non-public entities be subject
to both non-discrimination and equality norms in relation
to persons with disabilities. In circumstances where such
protection does not extend beyond the public domain, the
ability of persons with disabilities to participate in the
mainstream of community activities and to realize their
full potential as active members of society will be severely
and often arbitrarily constrained. This is not to imply
that legislative measures will always be the most effective
means of seeking to eliminate discrimination within the
private sphere. Thus, for example, the Standard Rules place
particular emphasis on the need for States to "take
action to raise awareness in society about persons with
disabilities, their rights, their needs, their potential
and their contribution".13
12. In the absence of government intervention there will
always be instances in which the operation of the free market
will produce unsatisfactory results for persons with disabilities,
either individually or as a group, and in such circumstances
it is incumbent on Governments to step in and take appropriate
measures to temper, complement, compensate for, or override
the results produced by market forces. Similarly, while
it is appropriate for Governments to rely on private, voluntary
groups to assist persons with disabilities in various ways,
such arrangements can never absolve Governments from their
duty to ensure full compliance with their obligations under
the Covenant. As the World Programme of Action concerning
Disabled Persons states, "the ultimate responsibility
for remedying the conditions that lead to impairment and
for dealing with the consequences of disability rests with
Governments".14
Means of Implementation
13. The methods to be used by States parties in seeking
to implement their obligations under the Covenant towards
persons with disabilities are essentially the same as those
available in relation to other obligations (see General
Comment No. 1 (Third session, 1989)). They include the need
to ascertain, through regular monitoring, the nature and
scope of the problems existing within the State; the need
to adopt appropriately tailored policies and programmes
to respond to the requirements thus identified; the need
to legislate where necessary and to eliminate any existing
discriminatory legislation; and the need to make appropriate
budgetary provisions or, where necessary, seek international
cooperation and assistance. In the latter respect, international
cooperation in accordance with Articles 22 and 23 of the
Covenant is likely to be a particularly important element
in enabling some developing countries to fulfil their obligations
under the Covenant.
14. In addition, it has been consistently acknowledged by
the international community that policy-making and programme
implementation in this area should be undertaken on the
basis of close consultation with, and involvement of, representative
groups of the persons concerned. For this reason, the Standard
Rules recommend that everything possible be done to facilitate
the establishment of national coordinating committees, or
similar bodies, to serve as a national focal point on disability
matters. In doing so, Governments should take account of
the 1990 Guidelines for the Establishment and Development
of National Coordinating Committees on Disability or Similar
Bodies. 15
The Obligation to Eliminate Discrimination
on the Grounds of Disability
15. Both de jure and de facto discrimination against persons
with disabilities have a long history and take various forms.
They range from invidious discrimination, such as the denial
of educational opportunities, to more "subtle"
forms of discrimination such as segregation and isolation
achieved through the imposition of physical and social barriers.
For the purposes of the Covenant, "disability-based
discrimination" may be defined as including any distinction,
exclusion, restriction or preference, or denial of reasonable
accommodation based on disability which has the effect of
nullifying or impairing the recognition, enjoyment or exercise
of economic, social or cultural rights. Through neglect,
ignorance, prejudice and false assumptions, as well as through
exclusion, distinction or separation, persons with disabilities
have very often been prevented from exercising their economic,
social or cultural rights on an equal basis with persons
without disabilities. The effects of disability-based discrimination
have been particularly severe in the fields of education,
employment, housing, transport, cultural life, and access
to public places and services.
16. Despite some progress in terms of legislation over the
past decade,16 the legal situation of persons
with disabilities remains precarious. In order to remedy
past and present discrimination, and to deter future discrimination,
comprehensive anti-discrimination legislation in relation
to disability would seem to be indispensable in virtually
all States parties. Such legislation should not only provide
persons with disabilities with judicial remedies as far
as possible and appropriate, but also provide for social-policy
programmes which enable persons with disabilities to live
an integrated, self-determined and independent life.
17. Anti-discrimination measures should be based on the
principle of equal rights for persons with disabilities
and the non-disabled, which, in the words of the World Programme
of Action concerning Disabled Persons, "implies that
the needs of each and every individual are of equal importance,
that these needs must be made the basis for the planning
of societies, and that all resources must be employed in
such a way as to ensure, for every individual, equal opportunity
for participation. Disability policies should ensure the
access of [persons with disabilities] to all community services".17
18. Because appropriate measures need to be taken to undo
existing discrimination and to establish equitable opportunities
for persons with disabilities, such actions should not be
considered discriminatory in the sense of Article 2 (2)
of the International Covenant on Economic, Social and Cultural
Rights as long as they are based on the principle of equality
and are employed only to the extent necessary to achieve
that objective.
Specific Provisions to the Covenant
A. Article 3 - Equal rights for men
and women
19. Persons with disabilities are sometimes treated as
genderless human beings. As a result, the double discrimination
suffered by women with disabilities is often neglected.18
Despite frequent calls by the international community for
particular emphasis to be placed upon their situation, very
few efforts have been undertaken during the Decade. The
neglect of women with disabilities is mentioned several
times in the report of the Secretary-General on the implementation
of the World Programme of Action.19 The Committee
therefore urges States parties to address the situation
of women with disabilities, with high priority being given
in future to the implementation of economic, social and
cultural rights-related programmes.
B. Articles 6-8 - Rights relating to work
20. The field of employment is one in which disability-based
discrimination has been prominent and persistent. In most
countries the unemployment rate among persons with disabilities
is two to three times higher than the unemployment rate
for persons without disabilities. Where persons with disabilities
are employed, they are mostly engaged in low-paid jobs with
little social and legal security and are often segregated
from the mainstream of the labour market. The integration
of persons with disabilities into the regular labour market
should be actively supported by States.
21. The "right of everyone to the opportunity to gain
his living by work which he freely chooses or accepts"
(art. 6 (1)) is not realized where the only real opportunity
open to disabled workers is to work in so-called "sheltered"
facilities under substandard conditions. Arrangements whereby
persons with a certain category of disability are effectively
confined to certain occupations or to the production of
certain goods may violate this right. Similarly, in the
light of principle 13 (3) of the Principles for the Protection
of Persons with Mental Illness and for the Improvement of
Mental Health Care,20 "therapeutical treatment"
in institutions which amounts to forced labour is also incompatible
with the Covenant. In this regard, the prohibition on forced
labour contained in the International Covenant on Civil
and Political Rights is also of potential relevance.
22. According to the Standard Rules, persons with disabilities,
whether in rural or urban areas, must have equal opportunities
for productive and gainful employment in the labour market.
Standard Rules,21 Rule 7. For this to happen
it is particularly important that artificial barriers to
integration in general, and to employment in particular,
be removed. As the International Labour Organisation has
noted, it is very often the physical barriers that society
has erected in areas such as transport, housing and the
workplace which are then cited as the reason why persons
with disabilities cannot be employed.22 For example,
as long as workplaces are designed and built in ways that
make them inaccessible to wheelchairs, employers will be
able to "justify" their failure to employ wheelchair
users. Governments should also develop policies which promote
and regulate flexible and alternative work arrangements
that reasonably accommodate the needs of disabled workers.
23. Similarly, the failure of Governments to ensure that
modes of transportation are accessible to persons with disabilities
greatly reduces the chances of such persons finding suitable,
integrated jobs, taking advantage of educational and vocational
training, or commuting to facilities of all types. Indeed,
the provision of access to appropriate and, where necessary,
specially tailored forms of transportation is crucial to
the realization by persons with disabilities of virtually
all the rights recognized in the Covenant.
24. The "technical and vocational guidance and training
programmes" required under Article 6 (2) of the Covenant
should reflect the needs of all persons with disabilities,
take place in integrated settings, and be planned and implemented
with the full involvement of representatives of persons
with disabilities.
25. The right to "the enjoyment of just and favourable
conditions of work" (art. 7) applies to all disabled
workers, whether they work in sheltered facilities or in
the open labour market. Disabled workers may not be discriminated
against with respect to wages or other conditions if their
work is equal to that of non-disabled workers. States parties
have a responsibility to ensure that disability is not used
as an excuse for creating low standards of labour protection
or for paying below minimum wages.
26. Trade union-related rights (art. 8) apply equally to
workers with disabilities and regardless of whether they
work in special work facilities or in the open labour market.
In addition, Article 8, read in conjunction with other rights
such as the right to freedom of association, serves to emphasize
the importance of the right of persons with disabilities
to form their own organizations. If these organizations
are to be effective in "the promotion and protection
of [the] economic and social interests" (art. 8 (1)
(a)) of such persons, they should be consulted regularly
by government bodies and others in relation to all matters
affecting them; it may also be necessary that they be supported
financially and otherwise so as to ensure their viability.
27. The International Labour Organization has developed
valuable and comprehensive instruments with respect to the
work-related rights of persons with disabilities, including
in particular Convention No. 159 (1983) concerning vocational
rehabilitation and employment of persons with disabilities.23
The Committee encourages States parties to the Covenant
to consider ratifying that Convention.
C. Article 9 - Social security
28. Social security and income-maintenance schemes are
of particular importance for persons with disabilities.
As stated in the Standard Rules, "States should ensure
the provision of adequate income support to persons with
disabilities who, owing to disability or disability-related
factors, have temporarily lost or received a reduction in
their income or have been denied employment opportunities".24
Such support should reflect the special needs for assistance
and other expenses often associated with disability. In
addition, as far as possible, the support provided should
also cover individuals (who are overwhelmingly female) who
undertake the care of a person with disabilities. Such persons,
including members of the families of persons with disabilities,
are often in urgent need of financial support because of
their assistance role.25
29. Institutionalization of persons with disabilities, unless
rendered necessary for other reasons, cannot be regarded
as an adequate substitute for the social security and income-support
rights of such persons.
D. Article 10 - Protection of the
family and of mothers and children
30. In the case of persons with disabilities, the Covenant's
requirement that "protection and assistance" be
rendered to the family means that everything possible should
be done to enable such persons, when they so wish, to live
with their families. Article 10 also implies, subject to
the general principles of international human rights law,
the right of persons with disabilities to marry and have
their own family. These rights are frequently ignored or
denied, especially in the case of persons with mental disabilities.26
In this and other contexts, the term "family"
should be interpreted broadly and in accordance with appropriate
local usage. States parties should ensure that laws and
social policies and practices do not impede the realization
of these rights. Persons with disabilities should have access
to necessary counselling services in order to fulfil their
rights and duties within the family.27
31. Women with disabilities also have the right to protection
and support in relation to motherhood and pregnancy. As
the Standard Rules state, "persons with disabilities
must not be denied the opportunity to experience their sexuality,
have sexual relationships and experience parenthood".28
The needs and desires in question should be recognized and
addressed in both the recreational and the procreational
contexts. These rights are commonly denied to both men and
women with disabilities worldwide.29 Both the
sterilization of, and the performance of an abortion on,
a woman with disabilities without her prior informed consent
are serious violations of Article 10 (2).
32. Children with disabilities are especially vulnerable
to exploitation, abuse and neglect and are, in accordance
with Article 10 (3) of the Covenant (reinforced by the corresponding
provisions of the Convention on the Rights of the Child),
entitled to special protection.
E. Article 11 - The right to an adequate
standard of living
33. In addition to the need to ensure that persons with
disabilities have access to adequate food, accessible housing
and other basic material needs, it is also necessary to
ensure that "support services, including assistive
devices" are available "for persons with disabilities,
to assist them to increase their level of independence in
their daily living and to exercise their rights".30
The right to adequate clothing also assumes a special significance
in the context of persons with disabilities who have particular
clothing needs, so as to enable them to function fully and
effectively in society. Wherever possible, appropriate personal
assistance should also be provided in this connection. Such
assistance should be undertaken in a manner and spirit which
fully respect the human rights of the person(s) concerned.
Similarly, as already noted by the Committee in paragraph
8 of General Comment No. 4 (Sixth session, 1991), the right
to adequate housing includes the right to accessible housing
for persons with disabilities.
F. Article 12 - The right to physical
and mental health
34. According to the Standard Rules, "States should
ensure that persons with disabilities, particularly infants
and children, are provided with the same level of medical
care within the same system as other members of society".31
The right to physical and mental health also implies the
right to have access to, and to benefit from, those medical
and social services - including orthopaedic devices - which
enable persons with disabilities to become independent,
prevent further disabilities and support their social integration.32
Similarly, such persons should be provided with rehabilitation
services which would enable them "to reach and sustain
their optimum level of independence and functioning".33
All such services should be provided in such a way that
the persons concerned are able to maintain full respect
for their rights and dignity.
G. Articles 13 and 14 - The right
to education
35. School programmes in many countries today recognize
that persons with disabilities can best be educated within
the general education system.34 Thus the Standard
Rules provide that "States should recognize the principle
of equal primary, secondary and tertiary educational opportunities
for children, youth and adults with disabilities, in integrated
settings".35 In order to implement such
an approach, States should ensure that teachers are trained
to educate children with disabilities within regular schools
and that the necessary equipment and support are available
to bring persons with disabilities up to the same level
of education as their non-disabled peers. In the case of
deaf children, for example, sign language should be recognized
as a separate language to which the children should have
access and whose importance should be acknowledged in their
overall social environment.
H. Article 15 - The right to take
part in cultural life and enjoy the benefits of scientific
progress
36. The Standard Rules provide that "States should
ensure that persons with disabilities have the opportunity
to utilize their creative, artistic and intellectual potential,
not only for their own benefit, but also for the enrichment
of their community, be they in urban or rural areas. ...
States should promote the accessibility to and availability
of places for cultural performances and services ... ".36
The same applies to places for recreation, sports and tourism.
37. The right to full participation in cultural and recreational
life for persons with disabilities further requires that
communication barriers be eliminated to the greatest extent
possible. Useful measures in this regard might include "the
use of talking books, papers written in simple language
and with clear format and colours for persons with mental
disability, [and] adapted television and theatre for deaf
persons".37
38. In order to facilitate the equal participation in cultural
life of persons with disabilities, Governments should inform
and educate the general public about disability. In particular,
measures must be taken to dispel prejudices or superstitious
beliefs against persons with disabilities, for example those
that view epilepsy as a form of spirit possession or a child
with disabilities as a form of punishment visited upon the
family. Similarly, the general public should be educated
to accept that persons with disabilities have as much right
as any other person to make use of restaurants, hotels,
recreation centres and cultural venues.
Notes
1 For a comprehensive review of the question,
see the final report prepared by Mr Leandro Despouy, Special
Rapporteur, on human rights and disability (E/CN.4/Sub.2/1991/31).
2 See A/47/415, para. 5.
3 See para. 165 of the World Programme of Action
concerning Disabled Persons, adopted by the General Assembly
by its resolution 37/52 of 3 December 1982 (para. 1).
4See Commission on Human Rights resolutions 1992/48,
para. 4 and 1993/29, para. 7.
5 See A/47/415, para. 6.
6 Standard Rules on the Equalization of Opportunities
for Persons with Disabilities, annexed to General Assembly
resolution 48/96 of 20 December 1993 (Introduction, para.
17).
7 World Programme of Action concerning Disabled
Persons (see note 3 above), para. 1.
8A/C.3/46/4, annex I. Also contained in the Report
on the International Meeting on the Roles and Functions of
National Coordinating Committees on Disability in Developing
Countries, Beijing, 5-11 November 1990 (CSDHA/DDP/NDC/4).
See also Economic and Social Council resolution 1991/8 and
General Assembly resolution 46/96 of 16 December 1991.
9 General Assembly resolution 46/119 of 17 December
1991, annex.
10 Standard Rules, (see note 6 above), Introduction,
para. 15.
11 See A/47/415, passim.
12 Ibid., para. 5.
13 Standard Rules, (see note 6 above) Rule 1.
14 World Programme of Action concerning Disabled
Persons (see note 3 above), para. 3.
15 See note 8 above.
16 See A/47/415, paras. 37-38.
17 World Programme of Action concerning Disabled
Persons (see note 3 above), para. 25.
18 See E/CN.4/Sub.2/1991/31 (see note 1 above),
para. 140.
19 See A/47/415, paras. 35, 46, 74 and 77.
20 See note 9 above.
21 Standard Rules (see note 6 above), Rule 7.
22 See A/CONF.157/PC/61/Add.10, p. 12.
23 See also Recommendation No. 99 (1955) concerning
vocational rehabilitation of the disabled, and Recommendation
No. 168 (1983) concerning vocational rehabilitation and employment
of persons with disabilities.
24 Standard Rules (see note 6 above) Rule 8, para.
1.
25 See A/47/415, para. 78.
26 See E/CN.4/Sub.2/1991/31 (see note 1 above),
paras. 190 and 193.
27 See the World Programme of Action concerning
Disabled Persons (see note 3 above) para. 74.
28 Standard Rules (see note 6 above), Rule 9, para.
2.
29 See E/CN.6/1991/2, paras. 14 and 59-68.
30 Standard Rules (see note 6 above), Rule 4.
31 Ibid., Rule 2, para. 3.
32 See the Declaration on the Rights of Disabled
Persons (General Assembly resolution 3447 (XXX) of 9 December
1975), para. 6; and the World Programme of Action concerning
Disabled Persons (see note 3 above), paras. 95-107.
33 Standard Rules (see note 6 above), Rule 3.
34 See A/47/415 para. 73.
35 Standard Rules (see note 6 above), Rule 6.
36 ibid., Rule 10, paras.1-2.
37 See A/47/415 para. 79.
The domestic application of the Covenant, General Comment
9
CESCR, General Comment 9, UN ESCOR, 1998, Doc. No.
E/C.12/1998/24.
A. The duty to give effect to the
Covenant in the domestic legal order
1. In its General Comment No. 3 (1990) the Committee addressed
issues relating to the nature and scope of States parties'
obligations. The present general comment seeks to elaborate
further certain elements of the earlier statement. The central
obligation in relation to the Covenant is for States parties
to give effect to the rights recognized therein. By requiring
Governments to do so "by all appropriate means",
the Covenant adopts a broad and flexible approach which
enables the particularities of the legal and administrative
systems of each State, as well as other relevant considerations,
to be taken into account.
2. But this flexibility coexists with the obligation upon
each State party to use all the means at its disposal to
give effect to the rights recognized in the Covenant. In
this respect, the fundamental requirements of international
human rights law must be borne in mind. Thus the Covenant
norms must be recognized in appropriate ways within the
domestic legal order, appropriate means of redress, or remedies,
must be available to any aggrieved individual or group,
and appropriate means of ensuring governmental accountability
must be put in place.
3. Questions relating to the domestic application of the
Covenant must be considered in the light of two principles
of international law. The first, as reflected in Article
27 of the Vienna Convention on the Law of Treaties of 1969,
is that "[A] party may not invoke the provisions of
its internal law as justification for its failure to perform
a treaty". In other words, States should modify the
domestic legal order as necessary in order to give effect
to their treaty obligations./A/CONF.39/27./ The second principle
is reflected in Article 8 of the Universal Declaration of
Human Rights, according to which "Everyone has the
right to an effective remedy by the competent national tribunals
for acts violating the fundamental rights granted him by
the constitution or by law." The Covenant contains
no direct counterpart to Article 2.3 (b) of the International
Covenant on Civil and Political Rights which obligates States
parties to, inter alia, "develop the possibilities
of judicial remedy". Nevertheless, a State party seeking
to justify its failure to provide any domestic legal remedies
for violations of economic, social and cultural rights would
need to show either that such remedies are not "appropriate
means" within the terms of Article 2.1 of the Covenant
or that, in view of the other means used, they are unnecessary.
It will be difficult to show this and the Committee considers
that, in many cases, the other "means" used could
be rendered ineffective if they are not reinforced or complemented
by judicial remedies.
B. The status of the Covenant in the
domestic legal order
4. In general, legally binding international human rights
standards should operate directly and immediately within
the domestic legal system of each State party, thereby enabling
individuals to seek enforcement of their rights before national
courts and tribunals. The rule requiring the exhaustion
of domestic remedies reinforces the primacy of national
remedies in this respect. The existence and further development
of international procedures for the pursuit of individual
claims is important, but such procedures are ultimately
only supplementary to effective national remedies.
5. The Covenant does not stipulate the specific means by
which it is to be implemented in the national legal order.
And there is no provision obligating its comprehensive incorporation
or requiring it to be accorded any specific type of status
in national law. Although the precise method by which Covenant
rights are given effect in national law is a matter for
each State party to decide, the means used should be appropriate
in the sense of producing results which are consistent with
the full discharge of its obligations by the State party.
The means chosen are also subject to review as part of the
Committee's examination of the State party's compliance
with its obligations under the Covenant.
6. An analysis of State practice with respect to the Covenant
shows that States have used a variety of approaches. Some
States have failed to do anything specific at all. Of those
that have taken measures, some States have transformed the
Covenant into domestic law by supplementing or amending
existing legislation, without invoking the specific terms
of the Covenant. Others have adopted or incorporated it
into domestic law, so that its terms are retained intact
and given formal validity in the national legal order. This
has often been done by means of constitutional provisions
according priority to the provisions of international human
rights treaties over any inconsistent domestic laws. The
approach of States to the Covenant depends significantly
upon the approach adopted to treaties in general in the
domestic legal order.
7. But whatever the preferred methodology, several principles
follow from the duty to give effect to the Covenant and
must therefore be respected. First, the means of implementation
chosen must be adequate to ensure fulfillment of the obligations
under the Covenant. The need to ensure justiciability (see
para. 10 below) is relevant when determining the best way
to give domestic legal effect to the Covenant rights. Second,
account should be taken of the means which have proved to
be most effective in the country concerned in ensuring the
protection of other human rights. Where the means used to
give effect to the Covenant on Economic, Social and Cultural
Rights differ significantly from those used in relation
to other human rights treaties, there should be a compelling
justification for this, taking account of the fact that
the formulations used in the Covenant are, to a considerable
extent, comparable to those used in treaties dealing with
civil and political rights.
8. Third, while the Covenant does not formally oblige States
to incorporate its provisions in domestic law, such an approach
is desirable. Direct incorporation avoids problems that
might arise in the translation of treaty obligations into
national law, and provides a basis for the direct invocation
of the Covenant rights by individuals in national courts.
For these reasons, the Committee strongly encourages formal
adoption or incorporation of the Covenant in national law.
C. The role of legal remedies
Legal or judicial remedies?
9. The right to an effective remedy need not be interpreted
as always requiring a judicial remedy. Administrative remedies
will, in many cases, be adequate and those living within
the jurisdiction of a State party have a legitimate expectation,
based on the principle of good faith, that all administrative
authorities will take account of the requirements of the
Covenant in their decision-making. Any such administrative
remedies should be accessible, affordable, timely and effective.
An ultimate right of judicial appeal from administrative
procedures of this type would also often be appropriate.
By the same token, there are some obligations, such as (but
by no means limited to) those concerning non-discrimination,
/ Pursuant to Article 2.2 States "undertake to guarantee"
that the rights in the Covenant are exercised "without
discrimination of any kind" in relation to which the
provision of some form of judicial remedy would seem indispensable
in order to satisfy the requirements of the Covenant. In
other words, whenever a Covenant right cannot be made fully
effective without some role for the judiciary, judicial
remedies are necessary.
Justiciability
10. In relation to civil and political rights, it is generally
taken for granted that judicial remedies for violations
are essential. Regrettably, the contrary assumption is too
often made in relation to economic, social and cultural
rights. This discrepancy is not warranted either by the
nature of the rights or by the relevant Covenant provisions.
The Committee has already made clear that it considers many
of the provisions in the Covenant to be capable of immediate
implementation. Thus, in General Comment No. 3 it cited,
by way of example, Articles 3, 7 (a) (i), 8, 10.3, 13.2
(a), 13.3, 13.4 and 15.3. It is important in this regard
to distinguish between justiciability (which refers to those
matters which are appropriately resolved by the courts)
and norms which are self-executing (capable of being applied
by courts without further elaboration). While the general
approach of each legal system needs to be taken into account,
there is no Covenant right which could not, in the great
majority of systems, be considered to possess at least some
significant justiciable dimensions. It is sometimes suggested
that matters involving the allocation of resources should
be left to the political authorities rather than the courts.
While the respective competences of the various branches
of government must be respected, it is appropriate to acknowledge
that courts are generally already involved in a considerable
range of matters which have important resource implications.
The adoption of a rigid classification of economic, social
and cultural rights which puts them, by definition, beyond
the reach of the courts would thus be arbitrary and incompatible
with the principle that the two sets of human rights are
indivisible and interdependent. It would also drastically
curtail the capacity of the courts to protect the rights
of the most vulnerable and disadvantaged groups in society.
Self-executing
11. The Covenant does not negate the possibility that the
rights it contains may be considered self-executing in systems
where that option is provided for. Indeed, when it was being
drafted, attempts to include a specific provision in the
Covenant to the effect that it be considered "non-self-executing"
were strongly rejected. In most States, the determination
of whether or not a treaty provision is self-executing will
be a matter for the courts, not the executive or the legislature.
In order to perform that function effectively, the relevant
courts and tribunals must be made aware of the nature and
implications of the Covenant and of the important role of
judicial remedies in its implementation. Thus, for example,
when Governments are involved in court proceedings, they
should promote interpretations of domestic laws which give
effect to their Covenant obligations. Similarly, judicial
training should take full account of the justiciability
of the Covenant. It is especially important to avoid any
a priori assumption that the norms should be considered
to be non-self-executing. In fact, many of them are stated
in terms which are at least as clear and specific as those
in other human rights treaties, the provisions of which
are regularly deemed by courts to be self-executing.
D. The treatment of the Covenant in
domestic courts
12. In the Committee's guidelines for States' reports,
States are requested to provide information as to whether
the provisions of the Covenant "can be invoked before,
and directly enforced by, the Courts, other tribunals or
administrative authorities". Some States have provided
such information, but greater importance should be attached
to this element in future reports. In particular, the Committee
requests that States parties provide details of any significant
jurisprudence from their domestic courts that makes use
of the provisions of the Covenant.
13. On the basis of available information, it is clear that
State practice is mixed. The Committee notes that some courts
have applied the provisions of the Covenant either directly
or as interpretive standards. Other courts are willing to
acknowledge, in principle, the relevance of the Covenant
for interpreting domestic law, but in practice, the impact
of the Covenant on the reasoning or outcome of cases is
very limited. Still other courts have refused to give any
degree of legal effect to the Covenant in cases in which
individuals have sought to rely on it. There remains extensive
scope for the courts in most countries to place greater
reliance upon the Covenant.
14. Within the limits of the appropriate exercise of their
functions of judicial review, courts should take account
of Covenant rights where this is necessary to ensure that
the State's conduct is consistent with its obligations under
the Covenant. Neglect by the courts of this responsibility
is incompatible with the principle of the rule of law, which
must always be taken to include respect for international
human rights obligations.
15. It is generally accepted that domestic law should be
interpreted as far as possible in a way which conforms to
a State's international legal obligations. Thus, when a
domestic decision maker is faced with a choice between an
interpretation of domestic law that would place the state
in breach of the Covenant and one that would enable the
State to comply with the Covenant, international law requires
the choice of the latter. Guarantees of equality and non-discrimination
should be interpreted, to the greatest extent possible,
in ways which facilitate the full protection of economic,
social and cultural rights.
Plans of action for primary education (art.14), General
comment 11
CESCR, General Comment 11, UN ESCOR, 1999, Doc.
No. E/C.12/1999/4.
1. Article 14 of the International Covenant on Economic,
Social and Cultural Rights requires each State party which
has not been able to secure compulsory primary education,
free of charge, to undertake, within two years, to work
out and adopt a detailed plan of action for the progressive
implementation, within a reasonable number of years, to
be fixed in the plan, of the principle of compulsory primary
education free of charge for all. In spite of the obligations
undertaken in accordance with article 14, a number of States
parties have neither drafted nor implemented a plan of action
for free and compulsory primary education.
2. The right to education, recognized in articles 13 and
14 of the Covenant, as well as in a variety of other international
treaties, such as the Convention on the Rights of the Child
and the Convention on the Elimination of All Forms of Discrimination
against Women, is of vital importance. It has been variously
classified as an economic right, a social right and a cultural
right. It is all of these. It is also, in many ways, a civil
right and a political right, since it is central to the
full and effective realization of those rights as well.
In this respect, the right to education epitomizes the indivisibility
and interdependence of all human rights.
3. In line with its clear and unequivocal obligation under
article 14, every State party is under a duty to present
to the Committee a plan of action drawn up along the lines
specified in paragraph 8 below. This obligation needs to
be scrupulously observed in view of the fact that in developing
countries, 130 million children of school age are currently
estimated to be without access to primary education, of
whom about two thirds are girls. See generally UNICEF, The
State of the World's Children 1999. The Committee is
fully aware that many diverse factors have made it difficult
for States parties to fulfil their obligation to provide
a plan of action. For example, the structural adjustment
programmes that began in the 1970s, the debt crises that
followed in the 1980s and the financial crises of the late
1990s, as well as other factors, have greatly exacerbated
the extent to which the right to primary education is being
denied. These difficulties, however, cannot relieve States
parties of their obligation to adopt and submit a plan of
action to the Committee, as provided for in article 14 of
the Covenant.
4. Plans of action prepared by States parties to the Covenant
in accordance with article 14 are especially important as
the work of the Committee has shown that the lack of educational
opportunities for children often reinforces their subjection
to various other human rights violations. For instance these
children, who may live in abject poverty and not lead healthy
lives, are particularly vulnerable to forced labour and
other forms of exploitation. Moreover, there is a direct
correlation between, for example, primary school enrolment
levels for girls and major reductions in child marriages.
5. Article 14 contains a number of elements which warrant
some elaboration in the light of the Committee's extensive
experience in examining State party reports.
6. Compulsory. The element of compulsion
serves to highlight the fact that neither parents, nor guardians,
nor the State are entitled to treat as optional the decision
as to whether the child should have access to primary education.
Similarly, the prohibition of gender discrimination in access
to education, required also by articles 2 and 3 of the Covenant,
is further underlined by this requirement. It should be
emphasized, however, that the education offered must be
adequate in quality, relevant to the child and must promote
the realization of the child's other rights.
7. Free of charge. The nature of
this requirement is unequivocal. The right is expressly
formulated so as to ensure the availability of primary education
without charge to the child, parents or guardians. Fees
imposed by the Government, the local authorities or the
school, and other direct costs, constitute disincentives
to the enjoyment of the right and may jeopardize its realization.
They are also often highly regressive in effect. Their elimination
is a matter which must be addressed by the required plan
of action. Indirect costs, such as compulsory levies on
parents (sometimes portrayed as being voluntary, when in
fact they are not), or the obligation to wear a relatively
expensive school uniform, can also fall into the same category.
Other indirect costs may be permissible, subject to the
Committee's examination on a case-by-case basis. This provision
of compulsory primary education in no way conflicts with
the right recognized in article 13.3 of the Covenant for
parents and guardians "to choose for their children
schools other than those established by the public authorities".
8. Adoption of a detailed plan.
The State party is required to adopt a plan of action within
two years. This must be interpreted as meaning within two
years of the Covenant's entry into force of the State concerned,
or within two years of a subsequent change in circumstances
which has led to the non-observance of the relevant obligation.
This obligation is a continuing one and States parties to
which the provision is relevant by virtue of the prevailing
situation are not absolved from the obligation as a result
of their past failure to act within the two-year limit.
The plan must cover all of the actions which are necessary
in order to secure each of the requisite component parts
of the right and must be sufficiently detailed so as to
ensure the comprehensive realization of the right. Participation
of all sections of civil society in the drawing up of the
plan is vital and some means of periodically reviewing progress
and ensuring accountability are essential. Without those
elements, the significance of the article would be undermined.
9. Obligations. A State party cannot
escape the unequivocal obligation to adopt a plan of action
on the grounds that the necessary resources are not available.
If the obligation could be avoided in this way, there would
be no justification for the unique requirement contained
in article 14 which applies, almost by definition, to situations
characterized by inadequate financial resources. By the
same token, and for the same reason, the reference to "international
assistance and cooperation" in article 2.1 and to "international
action" in article 23 of the Covenant are of particular
relevance in this situation. Where a State party is clearly
lacking in the financial resources and/or expertise required
to "work out and adopt" a detailed plan, the international
community has a clear obligation to assist.
10. Progressive implementation.
The plan of action must be aimed at securing the progressive
implementation of the right to compulsory primary education,
free of charge, under article 14. Unlike the provision in
article 2.1, however, article 14 specifies that the target
date must be "within a reasonable number of years"
and moreover, that the time-frame must "be fixed in
the plan". In other words, the plan must specifically
set out a series of targeted implementation dates for each
stage of the progressive implementation of the plan. This
underscores both the importance and the relative inflexibility
of the obligation in question. Moreover, it needs to be
stressed in this regard that the State party's other obligations,
such as non-discrimination, are required to be implemented
fully and immediately.
11. The Committee calls upon every State party to which
article 14 is relevant to ensure that its terms are fully
complied with and that the resulting plan of action is submitted
to the Committee as an integral part of the reports required
under the Covenant. Further, in appropriate cases, the Committee
encourages States parties to seek the assistance of relevant
international agencies, including the International Labour
Organization (ILO), the United Nations Development Programme
(UNDP), the United Nations Educational, Scientific and Cultural
Organization (UNESCO), the United Nations Children's Fund
(UNICEF), the International Monetary Fund (IMF) and the
World Bank, in relation both to the preparation of plans
of action under article 14 and their subsequent implementation.
The Committee also calls upon the relevant international
agencies to assist States parties to the greatest extent
possible to meet their obligations on an urgent basis.
The right to education (Art.13), General Comment 13 CESCR,
General Comment 13, UN ESCOR, 1999, Doc. No. E/C.12/1999/10
1. Education is both a human right in itself and an indispensable
means of realizing other human rights. As an empowerment
right, education is the primary vehicle by which economically
and socially marginalized adults and children can lift themselves
out of poverty and obtain the means to participate fully
in their communities. Education has a vital role in empowering
women, safeguarding children from exploitative and hazardous
labour and sexual exploitation, promoting human rights and
democracy, protecting the environment, and controlling population
growth. Increasingly, education is recognized as one of
the best financial investments States can make. But the
importance of education is not just practical: a well-educated,
enlightened and active mind, able to wander freely and widely,
is one of the joys and rewards of human existence.
2. The International Covenant on Economic, Social and Cultural
Rights (ICESCR) devotes two articles to the right to education,
articles 13 and 14. Article 13, the longest provision in
the Covenant, is the most wide-ranging and comprehensive
article on the right to education in international human
rights law. The Committee has already adopted General Comment
11 on article 14 (plans of action for primary education);
General Comment 11 and the present general comment are complementary
and should be considered together. The Committee is aware
that for millions of people throughout the world, the enjoyment
of the right to education remains a distant goal. Moreover,
in many cases, this goal is becoming increasingly remote.
The Committee is also conscious of the formidable structural
and other obstacles impeding the full implementation of
article 13 in many States parties.
3. With a view to assisting States parties' implementation
of the Covenant and the fulfilment of their reporting obligations,
this general comment focuses on the normative content of
article 13 (Part I, paras. 4-42), some of the obligations
arising from it (Part II, paras. 43-57), and some illustrative
violations (Part II, paras. 58-59). Part III briefly remarks
upon the obligations of actors other than States parties.
The general comment is based upon the Committee's experience
in examining States parties, reports over many years.
I. NORMATIVE CONTENT OF ARTICLE 13
Article 13 (1): Aims and objectives of education
4. States parties agree that all education, whether public
or private, formal or non-formal, shall be directed towards
the aims and objectives identified in article 13 (1). The
Committee notes that these educational objectives reflect
the fundamental purposes and principles of the United Nations
as enshrined in Articles 1 and 2 of the Charter. For the
most part, they are also found in article 26 (2) of the
Universal Declaration of Human Rights, although article
13 (1) adds to the Declaration in three respects: education
shall be directed to the human personality's "sense
of dignity", it shall "enable all persons to participate
effectively in a free society", and it shall promote
understanding among all "ethnic" groups, as well
as nations and racial and religious groups. Of those educational
objectives which are common to article 26 (2) of the Universal
Declaration of Human Rights and article 13 (1) of the Covenant,
perhaps the most fundamental is that "education shall
be directed to the full development of the human personality".
5. The Committee notes that since the General Assembly adopted
the Covenant in 1966, other international instruments have
further elaborated the objectives to which education should
be directed. Accordingly, the Committee takes the view that
States parties are required to ensure that education conforms
to the aims and objectives identified in article 13 (1),
as interpreted in the light of the World Declaration on
Education for All (Jomtien, Thailand, 1990) (art. 1), the
Convention on the Rights of the Child (art. 29 (1)), the
Vienna Declaration and Programme of Action (Part I, para.
33 and Part II, para. 80), and the Plan of Action for the
United Nations Decade for Human Rights Education (para.
2). While all these texts closely correspond to article
13 (1) of the Covenant, they also include elements which
are not expressly provided for in article 13 (1), such as
specific references to gender equality and respect for the
environment. These new elements are implicit in, and reflect
a contemporary interpretation of article 13 (1). The Committee
obtains support for this point of view from the widespread
endorsement that the previously mentioned texts have received
from all regions of the world.1
Article 13 (2): The right to receive an education - some
general remarks
6. While the precise and appropriate application of the
terms will depend upon the conditions prevailing in a particular
State party, education in all its forms and at all levels
shall exhibit the following interrelated and essential features:
2
(a) Availability - functioning educational institutions
and programmes have to be available in sufficient quantity
within the jurisdiction of the State party. What they
require to function depends upon numerous factors, including
the developmental context within which they operate; for
example, all institutions and programmes are likely to
require buildings or other protection from the elements,
sanitation facilities for both sexes, safe drinking water,
trained teachers receiving domestically competitive salaries,
teaching materials, and so on; while some will also require
facilities such as a library, computer facilities and
information technology;
(b) Accessibility - educational institutions and
programmes have to be accessible to everyone, without
discrimination, within the jurisdiction of the State party.
Accessibility has three overlapping dimensions:
i. Non-discrimination - education must be accessible
to all, especially the most vulnerable groups, in law
and fact, without discrimination on any of the prohibited
grounds (see paras. 31-37 on non-discrimination);
ii. Physical accessibility - education has to be within
safe physical reach, either by attendance at some reasonably
convenient geographic location (e.g. a neighbourhood
school) or via modern technology (e.g. access to a "distance
learning" programme);
iii. Economic accessibility - education has to be affordable
to all. This dimension of accessibility is subject to
the differential wording of article 13 (2) in relation
to primary, secondary and higher education: whereas
primary education shall be available "free to all",
States parties are required to progressively introduce
free secondary and higher education;
(c) Acceptability - the form and substance of
education, including curricula and teaching methods, have
to be acceptable (e.g. relevant, culturally appropriate
and of good quality) to students and, in appropriate cases,
parents; this is subject to the educational objectives
required by article 13 (1) and such minimum educational
standards as may be approved by the State (see art. 13
(3) and (4));
(d) Adaptability - education has to be flexible
so it can adapt to the needs of changing societies and
communities and respond to the needs of students within
their diverse social and cultural settings.
7. When considering the appropriate application of these
"interrelated and essential features" the best
interests of the student shall be a primary consideration.
Article 13 (2) (a): The right to primary education
8. Primary education includes the elements of availability,
accessibility, acceptability and adaptability which are
common to education in all its forms and at all levels.
3
9. The Committee obtains guidance on the proper interpretation
of the term "primary education" from the World
Declaration on Education for All which states: "The
main delivery system for the basic education of children
outside the family is primary schooling. Primary education
must be universal, ensure that the basic learning needs
of all children are satisfied, and take into account the
culture, needs and opportunities of the community"
(art. 5). "[B]asic learning needs" are defined
in article 1 of the World Declaration. 4 While
primary education is not synonymous with basic education,
there is a close correspondence between the two. In this
regard, the Committee endorses the position taken by UNICEF:
"Primary education is the most important component
of basic education." 5
10. As formulated in article 13 (2) (a), primary education
has two distinctive features: it is "compulsory"
and "available free to all". For the Committee's
observations on both terms, see paragraphs 6 and 7 of General
Comment 11 on article 14 of the Covenant.
Article 13 (2) (b): The right to secondary education
11. Secondary education includes the elements of availability,
accessibility, acceptability and adaptability which are
common to education in all its forms and at all levels.
6
12. While the content of secondary education will vary among
States parties and over time, it includes completion of
basic education and consolidation of the foundations for
life-long learning and human development. It prepares students
for vocational and higher educational opportunities. 7
Article 13 (2) (b) applies to secondary education "in
its different forms", thereby recognizing that secondary
education demands flexible curricula and varied delivery
systems to respond to the needs of students in different
social and cultural settings. The Committee encourages "alternative"
educational programmes which parallel regular secondary
school systems.
13. According to article 13 (2) (b), secondary education
"shall be made generally available and accessible to
all by every appropriate means, and in particular by the
progressive introduction of free education". The phrase
"generally available" signifies, firstly, that
secondary education is not dependent on a student's apparent
capacity or ability and, secondly, that secondary education
will be distributed throughout the State in such a way that
it is available on the same basis to all. For the Committee's
interpretation of "accessible", see paragraph
6 above. The phrase "every appropriate means"
reinforces the point that States parties should adopt varied
and innovative approaches to the delivery of secondary education
in different social and cultural contexts.
14. "Progressive introduction of free education"
means that while States must prioritize the provision of
free primary education, they also have an obligation to
take concrete steps towards achieving free secondary and
higher education. For the Committee's general observations
on the meaning of the word "free", see paragraph
7 of General Comment 11 on article 14.
Technical and vocational education
15. Technical and vocational education (TVE) forms part
of both the right to education and the right to work (art.
6 (2)). Article 13 (2) (b) presents TVE as part of secondary
education, reflecting the particular importance of TVE at
this level of education. Article 6 (2), however, does not
refer to TVE in relation to a specific level of education;
it comprehends that TVE has a wider role, helping "to
achieve steady economic, social and cultural development
and full and productive employment". Also, the Universal
Declaration of Human Rights states that "[t]echnical
and professional education shall be made generally available"
(art. 26 (1)). Accordingly, the Committee takes the view
that TVE forms an integral element of all levels of education.
8
16. An introduction to technology and to the world of work
should not be confined to specific TVE programmes but should
be understood as a component of general education. According
to the UNESCO Convention on Technical and Vocational Education
(1989), TVE consists of "all forms and levels of the
educational process involving, in addition to general knowledge,
the study of technologies and related sciences and the acquisition
of practical skills, know-how, attitudes and understanding
relating to occupations in the various sectors of economic
and social life" (art. 1 (a)). This view is also reflected
in certain ILO Conventions. 9 Understood in this
way, the right to TVE includes the following aspects:
(a) It enables students to acquire knowledge and skills
which contribute to their personal development, self-reliance
and employability and enhances the productivity of their
families and communities, including the State party's
economic and social development;
(b) It takes account of the educational, cultural and
social background of the population concerned; the skills,
knowledge and levels of qualification needed in the various
sectors of the economy; and occupational health, safety
and welfare;
(c) Provides retraining for adults whose current knowledge
and skills have become obsolete owing to technological,
economic, employment, social or other changes;
(d) It consists of programmes which give students, especially
those from developing countries, the opportunity to receive
TVE in other States, with a view to the appropriate transfer
and adaptation of technology;
(e) It consists, in the context of the Covenant's non-discrimination
and equality provisions, of programmes which promote the
TVE of women, girls, out-of-school youth, unemployed youth,
the children of migrant workers, refugees, persons with
disabilities and other disadvantaged groups.
Article 13 (2) (c): The right to higher education
17. Higher education includes the elements of availability,
accessibility, acceptability and adaptability which are
common to education in all its forms at all levels. 10
18. While article 13 (2) (c) is formulated on the same lines
as article 13 (2) (b), there are three differences between
the two provisions. Article 13 (2) (c) does not include
a reference to either education "in its different forms"
or specifically to TVE. In the Committee's opinion, these
two omissions reflect only a difference of emphasis between
article 13 (2) (b) and (c). If higher education is to respond
to the needs of students in different social and cultural
settings, it must have flexible curricula and varied delivery
systems, such as distance learning; in practice, therefore,
both secondary and higher education have to be available
"in different forms". As for the lack of reference
in article 13 (2) (c) to technical and vocational education,
given article 6 (2) of the Covenant and article 26 (1) of
the Universal Declaration, TVE forms an integral component
of all levels of education, including higher education.11
19. The third and most significant difference between article
13 (2) (b) and (c) is that while secondary education "shall
be made generally available and accessible to all",
higher education "shall be made equally accessible
to all, on the basis of capacity". According to article
13 (2) (c), higher education is not to be "generally
available", but only available "on the basis of
capacity". The "capacity" of individuals
should be assessed by reference to all their relevant expertise
and experience.
20. So far as the wording of article 13 (2) (b) and (c)
is the same (e.g. "the progressive introduction of
free education"), see the previous comments on article
13 (2) (b).
Article 13 (2) (d): The right to fundamental education
21. Fundamental education includes the elements of availability,
accessibility, acceptability and adaptability which are
common to education in all its forms and at all levels.12
22. In general terms, fundamental education corresponds
to basic education as set out in the World Declaration on
Education For All.13 By virtue of article 13
(2) (d), individuals "who have not received or completed
the whole period of their primary education" have a
right to fundamental education, or basic education as defined
in the World Declaration on Education For All.
23. Since everyone has the right to the satisfaction of
their "basic learning needs" as understood by
the World Declaration, the right to fundamental education
is not confined to those "who have not received or
completed the whole period of their primary education".
The right to fundamental education extends to all those
who have not yet satisfied their "basic learning needs".
24. It should be emphasized that enjoyment of the right
to fundamental education is not limited by age or gender;
it extends to children, youth and adults, including older
persons. Fundamental education, therefore, is an integral
component of adult education and life-long learning. Because
fundamental education is a right of all age groups, curricula
and delivery systems must be devised which are suitable
for students of all ages.
Article 13 (2) (e): A school system; adequate fellowship
system; material conditions of teaching staff
25. The requirement that the "development of a system
of schools at all levels shall be actively pursued"
means that a State party is obliged to have an overall developmental
strategy for its school system. The strategy must encompass
schooling at all levels, but the Covenant requires States
parties to prioritize primary education (see para. 51).
"[A]ctively pursued" suggests that the overall
strategy should attract a degree of governmental priority
and, in any event, must be implemented with vigour.
26. The requirement that "an adequate fellowship system
shall be established" should be read with the Covenant's
non-discrimination and equality provisions; the fellowship
system should enhance equality of educational access for
individuals from disadvantaged groups.
27. While the Covenant requires that "the material
conditions of teaching staff shall be continuously improved",
in practice the general working conditions of teachers have
deteriorated, and reached unacceptably low levels, in many
States parties in recent years. Not only is this inconsistent
with article 13 (2) (e), but it is also a major obstacle
to the full realization of students' right to education.
The Committee also notes the relationship between articles
13 (2) (e), 2 (2), 3 and 6-8 of the Covenant, including
the right of teachers to organize and bargain collectively;
draws the attention of States parties to the joint UNESCO-ILO
Recommendation Concerning the Status of Teachers (1966)
and the UNESCO Recommendation Concerning the Status of Higher-Education
Teaching Personnel (1997); and urges States parties to report
on measures they are taking to ensure that all teaching
staff enjoy the conditions and status commensurate with
their role.
Article 13 (3) and (4): The right to educational freedom
28. Article 13 (3) has two elements, one of which is that
States parties undertake to respect the liberty of parents
and guardians to ensure the religious and moral education
of their children in conformity with their own convictions.14
The Committee is of the view that this element of article
13 (3) permits public school instruction in subjects such
as the general history of religions and ethics if it is
given in an unbiased and objective way, respectful of the
freedoms of opinion, conscience and expression. It notes
that public education that includes instruction in a particular
religion or belief is inconsistent with article 13 (3) unless
provision is made for non-discriminatory exemptions or alternatives
that would accommodate the wishes of parents and guardians.
29. The second element of article 13 (3) is the liberty
of parents and guardians to choose other than public schools
for their children, provided the schools conform to "such
minimum educational standards as may be laid down or approved
by the State". This has to be read with the complementary
provision, article 13 (4), which affirms "the liberty
of individuals and bodies to establish and direct educational
institutions", provided the institutions conform to
the educational objectives set out in article 13 (1) and
certain minimum standards. These minimum standards may relate
to issues such as admission, curricula and the recognition
of certificates. In their turn, these standards must be
consistent with the educational objectives set out in article
13 (1).
30. Under article 13 (4), everyone, including non-nationals,
has the liberty to establish and direct educational institutions.
The liberty also extends to "bodies", i.e. legal
persons or entities. It includes the right to establish
and direct all types of educational institutions, including
nurseries, universities and institutions for adult education.
Given the principles of non-discrimination, equal opportunity
and effective participation in society for all, the State
has an obligation to ensure that the liberty set out in
article 13 (4) does not lead to extreme disparities of educational
opportunity for some groups in society.
Article 13: Special topics of broad application
Non-discrimination and equal treatment
31. The prohibition against discrimination enshrined in
article 2 (2) of the Covenant is subject to neither progressive
realization nor the availability of resources; it applies
fully and immediately to all aspects of education and encompasses
all internationally prohibited grounds of discrimination.
The Committee interprets articles 2 (2) and 3 in the light
of the UNESCO Convention against Discrimination in Education,
the relevant provisions of the Convention on the Elimination
of All Forms of Discrimination against Women, the International
Convention on the Elimination of All Forms of Racial Discrimination,
the Convention on the Rights of the Child and the ILO Indigenous
and Tribal Peoples Convention, 1989 (Convention No. 169),
and wishes to draw particular attention to the following
issues.
32. The adoption of temporary special measures intended
to bring about de facto equality for men and women and for
disadvantaged groups is not a violation of the right to
non-discrimination with regard to education, so long as
such measures do not lead to the maintenance of unequal
or separate standards for different groups, and provided
they are not continued after the objectives for which they
were taken have been achieved.
33. In some circumstances, separate educational systems
or institutions for groups defined by the categories in
article 2 (2) shall be deemed not to constitute a breach
of the Covenant. In this regard, the Committee affirms article
2 of the UNESCO Convention against Discrimination in Education
(1960).15
34. The Committee takes note of article 2 of the Convention
on the Rights of the Child and article 3 (e) of the UNESCO
Convention against Discrimination in Education and confirms
that the principle of non-discrimination extends to all
persons of school age residing in the territory of a State
party, including non-nationals, and irrespective of their
legal status.
35. Sharp disparities in spending policies that result in
differing qualities of education for persons residing in
different geographic locations may constitute discrimination
under the Covenant.
36. The Committee affirms paragraph 35 of its General Comment
5, which addresses the issue of persons with disabilities
in the context of the right to education, and paragraphs
36-42 of its General Comment 6, which address the issue
of older persons in relation to articles 13-15 of the Covenant.
37. States parties must closely monitor education - including
all relevant policies, institutions, programmes, spending
patterns and other practices - so as to identify and take
measures to redress any de facto discrimination. Educational
data should be disaggregated by the prohibited grounds of
discrimination.
Academic freedom and institutional autonomy16
38. In the light of its examination of numerous States
parties' reports, the Committee has formed the view that
the right to education can only be enjoyed if accompanied
by the academic freedom of staff and students. Accordingly,
even though the issue is not explicitly mentioned in article
13, it is appropriate and necessary for the Committee to
make some observations about academic freedom. The following
remarks give particular attention to institutions of higher
education because, in the Committee's experience, staff
and students in higher education are especially vulnerable
to political and other pressures which undermine academic
freedom. The Committee wishes to emphasize, however, that
staff and students throughout the education sector are entitled
to academic freedom and many of the following observations
have general application.
39. Members of the academic community, individually or collectively,
are free to pursue, develop and transmit knowledge and ideas,
through research, teaching, study, discussion, documentation,
production, creation or writing. Academic freedom includes
the liberty of individuals to express freely opinions about
the institution or system in which they work, to fulfil
their functions without discrimination or fear of repression
by the State or any other actor, to participate in professsional
or representative academic bodies, and to enjoy all the
internationally recognized human rights applicable to other
individuals in the same jurisdiction. The enjoyment of academic
freedom carries with it obligations, such as the duty to
respect the academic freedom of others, to ensure the fair
discussion of contrary views, and to treat all without discrimination
on any of the prohibited grounds.
40. The enjoyment of academic freedom requires the autonomy
of institutions of higher education. Autonomy is that degree
of self-governance necessary for effective decision-making
by institutions of higher education in relation to their
academic work, standards, management and related activities.
Self-governance, however, must be consistent with systems
of public accountability, especially in respect of funding
provided by the State. Given the substantial public investments
made in higher education, an appropriate balance has to
be struck between institutional autonomy and accountability.
While there is no single model, institutional arrangements
should be fair, just and equitable, and as transparent and
participatory as possible.
Discipline in schools17
41. In the Committee's view, corporal punishment is inconsistent
with the fundamental guiding principle of international
human rights law enshrined in the Preambles to the Universal
Declaration of Human Rights and both Covenants: the dignity
of the individual.18 Other aspects of school
discipline may also be inconsistent with human dignity,
such as public humiliation. Nor should any form of discipline
breach other rights under the Covenant, such as the right
to food. A State party is required to take measures to ensure
that discipline which is inconsistent with the Covenant
does not occur in any public or private educational institution
within its jurisdiction. The Committee welcomes initiatives
taken by some States parties which actively encourage schools
to introduce "positive", non-violent approaches
to school discipline.
Limitations on article 13
42. The Committee wishes to emphasize that the Covenant's
limitations clause, article 4, is primarily intended to
be protective of the rights of individuals rather than permissive
of the imposition of limitations by the State. Consequently,
a State party which closes a university or other educational
institution on grounds such as national security or the
preservation of public order has the burden of justifying
such a serious measure in relation to each of the elements
identified in article 4.
II. STATES PARTIES' OBLIGATIONS AND
VIOLATIONS
General legal obligations
43. While the Covenant provides for progressive realization
and acknowledges the constraints due to the limits of available
resources, it also imposes on States parties various obligations
which are of immediate effect.19 States parties
have immediate obligations in relation to the right to education,
such as the "guarantee" that the right "will
be exercised without discrimination of any kind" (art.2
(2)) and the obligation "to take steps" (art.
2 (1)) towards the full realization of article 13.20
Such steps must be "deliberate, concrete and targeted"
towards the full realization of the right to education.
44. The realization of the right to education over time,
that is "progressively", should not be interpreted
as depriving States parties' obligations of all meaningful
content. Progressive realization means that States parties
have a specific and continuing obligation "to move
as expeditiously and effectively as possible" towards
the full realization of article 13.21
45. There is a strong presumption of impermissibility of
any retrogressive measures taken in relation to the right
to education, as well as other rights enunciated in the
Covenant. If any deliberately retrogressive measures are
taken, the State party has the burden of proving that they
have been introduced after the most careful consideration
of all alternatives and that they are fully justified by
reference to the totality of the rights provided for in
the Covenant and in the context of the full use of the State
party's maximum available resources.22
46. The right to education, like all human rights, imposes
three types or levels of obligations on States parties:
the obligations to respect, protect and fulfil. In turn,
the obligation to fulfil incorporates both an obligation
to facilitate and an obligation to provide.
47. The obligation to respect requires States parties to
avoid measures that hinder or prevent the enjoyment of the
right to education. The obligation to protect requires States
parties to take measures that prevent third parties from
interfering with the enjoyment of the right to education.
The obligation to fulfil (facilitate) requires States to
take positive measures that enable and assist individuals
and communities to enjoy the right to education. Finally,
States parties have an obligation to fulfil (provide) the
right to education. As a general rule, States parties are
obliged to fulfil (provide) a specific right in the Covenant
when an individual or group is unable, for reasons beyond
their control, to realize the right themselves by the means
at their disposal. However, the extent of this obligation
is always subject to the text of the Covenant.
48. In this respect, two features of article 13 require
emphasis. First, it is clear that article 13 regards States
as having principal responsibility for the direct provision
of education in most circumstances; States parties recognize,
for example, that the "development of a system of schools
at all levels shall be actively pursued" (art. 13 (2)
(e)). Secondly, given the differential wording of article
13 (2) in relation to primary, secondary, higher and fundamental
education, the parameters of a State party's obligation
to fulfil (provide) are not the same for all levels of education.
Accordingly, in light of the text of the Covenant, States
parties have an enhanced obligation to fulfil (provide)
regarding the right to education, but the extent of this
obligation is not uniform for all levels of education. The
Committee observes that this interpretation of the obligation
to fulfil (provide) in relation to article 13 coincides
with the law and practice of numerous States parties.
Specific legal obligations
49. States parties are required to ensure that curricula,
for all levels of the educational system, are directed to
the objectives identified in article 13 (1).23
They are also obliged to establish and maintain a transparent
and effective system which monitors whether or not education
is, in fact, directed to the educational objectives set
out in article 13 (1).
50. In relation to article 13 (2), States have obligations
to respect, protect and fulfil each of the "essential
features" (availability, accessibility, acceptability,
adaptability) of the right to education. By way of illustration,
a State must respect the availability of education by not
closing private schools; protect the accessibility of education
by ensuring that third parties, including parents and employers,
do not stop girls from going to school; fulfil (facilitate)
the acceptability of education by taking positive measures
to ensure that education is culturally appropriate for minorities
and indigenous peoples, and of good quality for all; fulfil
(provide) the adaptability of education by designing and
providing resources for curricula which reflect the contemporary
needs of students in a changing world; and fulfil (provide)
the availability of education by actively developing a system
of schools, including building classrooms, delivering programmes,
providing teaching materials, training teachers and paying
them domestically competitive salaries.
51. As already observed, the obligations of States parties
in relation to primary, secondary, higher and fundamental
education are not identical. Given the wording of article
13 (2), States parties are obliged to prioritize the introduction
of compulsory, free primary education.24 This
interpretation of article 13 (2) is reinforced by the priority
accorded to primary education in article 14. The obligation
to provide primary education for all is an immediate duty
of all States parties.
52. In relation to article 13 (2) (b)-(d), a State party
has an immediate obligation "to take steps" (art.
2 (1)) towards the realization of secondary, higher and
fundamental education for all those within its jurisdiction.
At a minimum, the State party is required to adopt and implement
a national educational strategy which includes the provision
of secondary, higher and fundamental education in accordance
with the Covenant. This strategy should include mechanisms,
such as indicators and benchmarks on the right to education,
by which progress can be closely monitored.
53. Under article 13 (2) (e), States parties are obliged
to ensure that an educational fellowship system is in place
to assist disadvantaged groups.25 The obligation
to pursue actively the "development of a system of
schools at all levels" reinforces the principal responsibility
of States parties to ensure the direct provision of the
right to education in most circumstances.26
54. States parties are obliged to establish "minimum
educational standards" to which all educational institutions
established in accordance with article 13 (3) and (4) are
required to conform. They must also maintain a transparent
and effective system to monitor such standards. A State
party has no obligation to fund institutions established
in accordance with article 13 (3) and (4); however, if a
State elects to make a financial contribution to private
educational institutions, it must do so without discrimination
on any of the prohibited grounds.
55. States parties have an obligation to ensure that communities
and families are not dependent on child labour. The Committee
especially affirms the importance of education in eliminating
child labour and the obligations set out in article 7 (2)
of the Worst Forms of Child Labour Convention, 1999 (Convention
No. 182).27 Additionally, given article 2 (2),
States parties are obliged to remove gender and other stereotyping
which impedes the educational access of girls, women and
other disadvantaged groups.
56. In its General Comment 3, the Committee drew attention
to the obligation of all States parties to take steps, "individually
and through international assistance and cooperation, especially
economic and technical", towards the full realization
of the rights recognized in the Covenant, such as the right
to education.28 Articles 2 (1) and 23 of the
Covenant, Article 56 of the Charter of the United Nations,
article 10 of the World Declaration on Education for All,
and Part I, paragraph 34 of the Vienna Declaration and Programme
of Action all reinforce the obligation of States parties
in relation to the provision of international assistance
and cooperation for the full realization of the right to
education. In relation to the negotiation and ratification
of international agreements, States parties should take
steps to ensure that these instruments do not adversely
impact upon the right to education. Similarly, States parties
have an obligation to ensure that their actions as members
of international organizations, including international
financial institutions, take due account of the right to
education.
57. In its General Comment 3, the Committee confirmed that
States parties have "a minimum core obligation to ensure
the satisfaction of, at the very least, minimum essential
levels" of each of the rights enunciated in the Covenant,
including "the most basic forms of education".
In the context of article 13, this core includes an obligation:
to ensure the right of access to public educational institutions
and programmes on a non-discriminatory basis; to ensure
that education conforms to the objectives set out in article
13 (1); to provide primary education for all in accordance
with article 13 (2) (a); to adopt and implement a national
educational strategy which includes provision for secondary,
higher and fundamental education; and to ensure free choice
of education without interference from the State or third
parties, subject to conformity with "minimum educational
standards" (art. 13 (3) and (4)).
Violations
58. When the normative content of article 13 (Part I) is
applied to the general and specific obligations of States
parties (Part II), a dynamic process is set in motion which
facilitates identification of violations of the right to
education. Violations of article 13 may occur through the
direct action of States parties (acts of commission) or
through their failure to take steps required by the Covenant
(acts of omission).
59. By way of illustration, violations of article 13 include:
the introduction or failure to repeal legislation which
discriminates against individuals or groups, on any of the
prohibited grounds, in the field of education; the failure
to take measures which address de facto educational discrimination;
the use of curricula inconsistent with the educational objectives
set out in article 13 (1); the failure to maintain a transparent
and effective system to monitor conformity with article
13 (1); the failure to introduce, as a matter of priority,
primary education which is compulsory and available free
to all; the failure to take "deliberate, concrete and
targeted" measures towards the progressive realization
of secondary, higher and fundamental education in accordance
with article 13 (2) (b)-(d); the prohibition of private
educational institutions; the failure to ensure private
educational institutions conform to the "minimum educational
standards" required by article 13 (3) and (4); the
denial of academic freedom of staff and students; the closure
of educational institutions in times of political tension
in non-conformity with article 4.
III. OBLIGATIONS OF ACTORS OTHER
THAN STATES PARTIES
60. Given article 22 of the Covenant, the role of the United
Nations agencies, including at the country level through
the United Nations Development Assistance Framework (UNDAF),
is of special importance in relation to the realization
of article 13. Coordinated efforts for the realization of
the right to education should be maintained to improve coherence
and interaction among all the actors concerned, including
the various components of civil society. UNESCO, the United
Nations Development Programme, UNICEF, ILO, the World Bank,
the regional development banks, the International Monetary
Fund and other relevant bodies within the United Nations
system should enhance their cooperation for the implementation
of the right to education at the national level, with due
respect to their specific mandates, and building on their
respective expertise. In particular, the international financial
institutions, notably the World Bank and IMF, should pay
greater attention to the protection of the right to education
in their lending policies, credit agreements, structural
adjustment programmes and measures taken in response to
the debt crisis. When examining the reports of States parties,
the Committee will consider the effects of the assistance
provided by all actors other than States parties on the
ability of States to meet their obligations under article
13. The adoption of a human rights-based approach by United
Nations specialized agencies, programmes and bodies will
greatly facilitate implementation of the right to education.
Notes
1. This approach corresponds with the Committee's analytical
framework adopted in relation to the rights to adequate housing
and food, as well as the work of the United Nations Special
Rapporteur on the right to education. In its General Comment
4, the Committee identified a number of factors which bear
upon the right to adequate housing, including "availability",
"affordability", "accessibility" and "cultural
adequacy". In its General Comment 12, the Committee identified
elements of the right to adequate food, such as "availability",
"acceptability" and "accessibility". In
her preliminary report to the Commission on Human Rights,
the Special Rapporteur on the right to education sets out
"four essential features that primary schools should
exhibit, namely availability, accessibility, acceptability
and adaptability", (E/CN.4/1999/49, para. 50).
2. See para. 6.
3. The Declaration defines "basic learning needs"
as: "essential learning tools (such as literacy, oral
expression, numeracy, and problem solving) and the basic learning
content (such as knowledge, skills, values, and attitudes)
required by human beings to be able to survive, to develop
their full capacities, to live and work in dignity, to participate
fully in development, to improve the quality of their lives,
to make informed decisions, and to continue learning"
(art. 1).
4. Advocacy Kit, Basic Education 1999 (UNICEF), section 1,
page 1.
5. See para. 6.
6. See International Standard Classification of Education
1997, UNESCO, para. 52.
7. A view also reflected in the Human Resources Development
Convention 1975 (Convention No. 142) and the Social Policy
(Basic Aims and Standards) Convention 1962 (Convention No.
117) of the International Labour Organization.
8. See note 8.
9. See para. 6.
10. See para. 15.
11. See para. 6.
12. See para. 9.
13. This replicates article 18 (4) of the International Covenant
on Civil and Political Rights (ICCPR) and also relates to
the freedom to teach a religion or belief as stated in article
18 (1) ICCPR. (See Human Rights Committee General Comment
22 on article 18 ICCPR, forty-eighth session, 1993.) The Human
Rights Committee notes that the fundamental character of article
18 ICCPR is reflected in the fact that this provision cannot
be derogated from, even in time of public emergency, as stated
in article 4 (2) of that Covenant.
14. According to article 2:
"When permitted in a State, the following situations
shall not be deemed to constitute discrimination, within the
meaning of article 1 of this Convention:
(a) The establishment or maintenance of separate educational
systems or institutions for pupils of the two sexes, if these
systems or institutions offer equivalent access to education,
provide a teaching staff with qualifications of the same standard
as well as school premises and equipment of the same quality,
and afford the opportunity to take the same or equivalent
courses of study;
(b) The establishment or maintenance, for religious or linguistic
reasons, of separate educational systems or institutions offering
an education which is in keeping with the wishes of the pupil's
parents or legal guardians, if participation in such systems
or attendance at such institutions is optional and if the
education provided conforms to such standards as may be laid
down or approved by the competent authorities, in particular
for education of the same level;
(c) The establishment or maintenance of private educational
institutions, if the object of the institutions is not to
secure the exclusion of any group but to provide educational
facilities in addition to those provided by the public authorities,
if the institutions are conducted in accordance with that
object, and if the education provided conforms with such standards
as may be laid down or approved by the competent authorities,
in particular for education of the same level."
15. See UNESCO Recommendation Concerning the Status of Higher-Education
Teaching Personnel (1997).
16. In formulating this paragraph, the Committee has taken
note of the practice evolving elsewhere in the international
human rights system, such as the interpretation given by the
Committee on the Rights of the Child to article 28 (2) of
the Convention on the Rights of the Child, as well as the
Human Rights Committee's interpretation of article 7 of ICCPR.
17. The Committee notes that, although it is absent from
article 26 (2) of the Declaration, the drafters of ICESCR
expressly included the dignity of the human personality as
one of the mandatory objectives to which all education is
to be directed (art. 13 (1)).
18. See the Committee's General Comment 3, para. 1.
19. See the Committee's General Comment 3, para. 2.
20. See the Committee's General Comment 3, para. 9.
21. See the Committee's General Comment 3, para. 9.
22. There are numerous resources to assist States parties
in this regard, such as UNESCO's Guidelines for Curriculum
and Textbook Development in International Education (ED/ECS/HCI).
One of the objectives of article 13 (1) is to "strengthen
the respect of human rights and fundamental freedoms";
in this particular context, States parties should examine
the initiatives developed within the framework of the United
Nations Decade for Human Rights Education - especially instructive
is the Plan of Action for the Decade, adopted by the General
Assembly in 1996, and the Guidelines for National Plans of
Action for Human Rights Education, developed by the Office
of the High Commissioner for Human Rights to assist States
in responding to the United Nations Decade for Human Rights
Education.
23. On the meaning of "compulsory" and "free",
see paragraphs 6 and 7 of General Comment 11 on article 14.
24. In appropriate cases, such a fellowship system would
be an especially appropriate target for the international
assistance and cooperation anticipated by article 2 (1).
25. In the context of basic education, UNICEF has observed:
"Only the State ... can pull together all the components
into a coherent but flexible education system". UNICEF,
The State of the World's Children, 1999, "The
education revolution", p. 77.
26. According to article 7 (2), "(e)ach Member shall,
taking into account the importance of education in eliminating
child labour, take effective and time-bound measures to: (c)
ensure access to free basic education, and, wherever possible
and appropriate, vocational training, for all children removed
from the worst forms of child labour" (ILO Convention
182, Worst Forms of Child Labour, 1999).
27. See the Committee's General Comment 3, paras. 13-14.
28. See the Committee's General Comment 2, para. 9.
The right to health (Art.12), General Comment 14
CESCR, General Comment 14, UN ESCOR, 2000, Doc.
No. E/C.12/2000/4
1. Health is a fundamental human right indispensable for
the exercise of other human rights. Every human being is
entitled to the enjoyment of the highest attainable standard
of health conducive to living a life in dignity. The realization
of the right to health may be pursued through numerous,
complementary approaches, such as the formulation of health
policies, or the implementation of health programmes developed
by the World Health Organization (WHO), or the adoption
of specific legal instruments. Moreover, the right to health
includes certain components which are legally enforceable.
(1)
2. The human right to health is recognized in numerous international
instruments. Article 25.1 of the Universal Declaration of
Human Rights affirms: "Everyone has the right to a
standard of living adequate for the health of himself and
of his family, including food, clothing, housing and medical
care and necessary social services". The International
Covenant on Economic, Social and Cultural Rights provides
the most comprehensive article on the right to health in
international human rights law. In accordance with article
12.1 of the Covenant, States parties recognize "the
right of everyone to the enjoyment of the highest attainable
standard of physical and mental health", while article
12.2 enumerates, by way of illustration, a number of "steps
to be taken by the States parties ... to achieve the full
realization of this right". Additionally, the right
to health is recognized, inter alia, in article
5 (e) (iv) of the International Convention on the Elimination
of All Forms of Racial Discrimination of 1965, in articles
11.1 (f) and 12 of the Convention on the Elimination of
All Forms of Discrimination against Women of 1979 and in
article 24 of the Convention on the Rights of the Child
of 1989. Several regional human rights instruments also
recognize the right to health, such as the European Social
Charter of 1961 as revised (art. 11), the African Charter
on Human and Peoples' Rights of 1981 (art. 16) and the Additional
Protocol to the American Convention on Human Rights in the
Area of Economic, Social and Cultural Rights of 1988 (art.
10). Similarly, the right to health has been proclaimed
by the Commission on Human Rights, (2) as well as
in the Vienna Declaration and Programme of Action of 1993
and other international instruments. (3)
3. The right to health is closely related to and dependent
upon the realization of other human rights, as contained
in the International Bill of Rights, including the rights
to food, housing, work, education, human dignity, life,
non-discrimination, equality, the prohibition against torture,
privacy, access to information, and the freedoms of association,
assembly and movement. These and other rights and freedoms
address integral components of the right to health.
4. In drafting article 12 of the Covenant, the Third Committee
of the United Nations General Assembly did not adopt the
definition of health contained in the preamble to the Constitution
of WHO, which conceptualizes health as "a state of
complete physical, mental and social well-being and not
merely the absence of disease or infirmity". However,
the reference in article 12.1 of the Covenant to "the
highest attainable standard of physical and mental health"
is not confined to the right to health care. On the contrary,
the drafting history and the express wording of article
12.2 acknowledge that the right to health embraces a wide
range of socio-economic factors that promote conditions
in which people can lead a healthy life, and extends to
the underlying determinants of health, such as food and
nutrition, housing, access to safe and potable water and
adequate sanitation, safe and healthy working conditions,
and a healthy environment.
5. The Committee is aware that, for millions of people throughout
the world, the full enjoyment of the right to health still
remains a distant goal. Moreover, in many cases, especially
for those living in poverty, this goal is becoming increasingly
remote. The Committee recognizes the formidable structural
and other obstacles resulting from international and other
factors beyond the control of States that impede the full
realization of article 12 in many States parties.
6. With a view to assisting States parties' implementation
of the Covenant and the fulfilment of their reporting obligations,
this General Comment focuses on the normative content of
article 12 (Part I), States parties' obligations (Part II),
violations (Part III) and implementation at the national
level (Part IV), while the obligations of actors other than
States parties are addressed in Part V. The General Comment
is based on the Committee's experience in examining States
parties' reports over many years.
I. NORMATIVE CONTENT OF ARTICLE 12
7. Article 12.1 provides a definition of the right to health,
while article 12.2 enumerates illustrative, non-exhaustive
examples of States parties' obligations.
8. The right to health is not to be understood as a right
to be healthy. The right to health contains both
freedoms and entitlements. The freedoms include the right
to control one's health and body, including sexual and reproductive
freedom, and the right to be free from interference, such
as the right to be free from torture, non-consensual medical
treatment and experimentation. By contrast, the entitlements
include the right to a system of health protection which
provides equality of opportunity for people to enjoy the
highest attainable level of health.
9. The notion of "the highest attainable standard of
health" in article 12.1 takes into account both the
individual's biological and socio-economic preconditions
and a State's available resources. There are a number of
aspects which cannot be addressed solely within the relationship
between States and individuals; in particular, good health
cannot be ensured by a State, nor can States provide protection
against every possible cause of human ill health. Thus,
genetic factors, individual susceptibility to ill health
and the adoption of unhealthy or risky lifestyles may play
an important role with respect to an individual's health.
Consequently, the right to health must be understood as
a right to the enjoyment of a variety of facilities, goods,
services and conditions necessary for the realization of
the highest attainable standard of health.
10. Since the adoption of the two International Covenants
in 1966 the world health situation has changed dramatically
and the notion of health has undergone substantial changes
and has also widened in scope. More determinants of health
are being taken into consideration, such as resource distribution
and gender differences. A wider definition of health also
takes into account such socially-related concerns as violence
and armed conflict. (4) Moreover, formerly unknown
diseases, such as Human Immunodeficiency Virus and Acquired
Immunodeficiency Syndrome (HIV/AIDS), and others that have
become more widespread, such as cancer, as well as the rapid
growth of the world population, have created new obstacles
for the realization of the right to health which need to
be taken into account when interpreting article 12.
11. The Committee interprets the right to health, as defined
in article 12.1, as an inclusive right extending not only
to timely and appropriate health care but also to the underlying
determinants of health, such as access to safe and potable
water and adequate sanitation, an adequate supply of safe
food, nutrition and housing, healthy occupational and environmental
conditions, and access to health-related education and information,
including on sexual and reproductive health. A further important
aspect is the participation of the population in all health-related
decision-making at the community, national and international
levels.
12. The right to health in all its forms and at all levels
contains the following interrelated and essential elements,
the precise application of which will depend on the conditions
prevailing in a particular State party:
(a) Availability. Functioning public health
and health-care facilities, goods and services, as well
as programmes, have to be available in sufficient quantity
within the State party. The precise nature of the facilities,
goods and services will vary depending on numerous factors,
including the State party's developmental level. They
will include, however, the underlying determinants of
health, such as safe and potable drinking water and adequate
sanitation facilities, hospitals, clinics and other health-related
buildings, trained medical and professional personnel
receiving domestically competitive salaries, and essential
drugs, as defined by the WHO Action Programme on Essential
Drugs. (5)
(b) Accessibility. Health facilities, goods and
services (6) have to be accessible to everyone
without
discrimination, within the jurisdiction of the State party.
Accessibility has four overlapping dimensions:
Non-discrimination: health facilities, goods and services
must be accessible to all, especially the most vulnerable
or marginalized sections of the population, in law and
in fact, without discrimination on any of the prohibited
grounds. (7)
Physical accessibility: health facilities, goods and
services must be within safe physical reach for all
sections of the population, especially vulnerable or
marginalized groups, such as ethnic minorities and indigenous
populations, women, children, adolescents, older persons,
persons with disabilities and persons with HIV/AIDS.
Accessibility also implies that medical services and
underlying determinants of health, such as safe and
potable water and adequate sanitation facilities, are
within safe physical reach, including in rural areas.
Accessibility further includes adequate access to buildings
for persons with disabilities.
Economic accessibility (affordability): health facilities,
goods and services must be affordable for all. Payment
for health-care services, as well as services related
to the underlying determinants of health, has to be
based on the principle of equity, ensuring that these
services, whether privately or publicly provided, are
affordable for all, including socially disadvantaged
groups. Equity demands that poorer households should
not be disproportionately burdened with health expenses
as compared to richer households.
Information accessibility: accessibility includes the
right to seek, receive and impart information and ideas
(8) concerning health issues. However, accessibility
of information should not impair the right to have personal
health data treated with confidentiality.
(c) Acceptability. All health facilities, goods
and services must be respectful of medical ethics and
culturally appropriate, i.e. respectful of the culture
of individuals, minorities, peoples and communities, sensitive
to gender and life-cycle requirements, as well as being
designed to respect confidentiality and improve the health
status of those concerned.
(d) Quality. As well as being culturally acceptable,
health facilities, goods and services must also be scientifically
and medically appropriate and of good quality. This requires,
inter alia, skilled medical personnel, scientifically
approved and unexpired drugs and hospital equipment, safe
and potable water, and adequate sanitation.
13. The non-exhaustive catalogue of examples in article
12.2 provides guidance in defining the action to be taken
by States. It gives specific generic examples of measures
arising from the broad definition of the right to health
contained in article 12.1, thereby illustrating the content
of that right, as exemplified in the following paragraphs.
(9)
Article 12.2 (a). The right to maternal, child and reproductive
health
14. "The provision for the reduction of the stillbirth
rate and of infant mortality and for the healthy development
of the child" (art. 12.2 (a)) (10) may be understood
as requiring measures to improve child and maternal health,
sexual and reproductive health services, including access
to family planning, pre- and post-natal care, (11)
emergency obstetric services and access to information,
as well as to resources necessary to act on that information.
(12)
Article 12.2 (b). The right to healthy natural and workplace
environments
15. "The improvement of all aspects of environmental
and industrial hygiene" (art. 12.2 (b)) comprises,
inter alia, preventive measures in respect of occupational
accidents and diseases; the requirement to ensure an adequate
supply of safe and potable water and basic sanitation; the
prevention and reduction of the population's exposure to
harmful substances such as radiation and harmful chemicals
or other detrimental environmental conditions that directly
or indirectly impact upon human health. (13) Furthermore,
industrial hygiene refers to the minimization, so far as
is reasonably practicable, of the causes of health hazards
inherent in the working environment. (14) Article
12.2 (b) also embraces adequate housing and safe and hygienic
working conditions, an adequate supply of food and proper
nutrition, and discourages the abuse of alcohol, and the
use of tobacco, drugs and other harmful substances.
Article 12.2 (c). The right to prevention, treatment and
control of diseases
16. "The prevention, treatment and control of epidemic,
endemic, occupational and other diseases" (art. 12.2
(c)) requires the establishment of prevention and education
programmes for behaviour-related health concerns such as
sexually transmitted diseases, in particular HIV/AIDS, and
those adversely affecting sexual and reproductive health,
and the promotion of social determinants of good health,
such as environmental safety, education, economic development
and gender equity. The right to treatment includes the creation
of a system of urgent medical care in cases of accidents,
epidemics and similar health hazards, and the provision
of disaster relief and humanitarian assistance in emergency
situations. The control of diseases refers to States' individual
and joint efforts to, inter alia, make available
relevant technologies, using and improving epidemiological
surveillance and data collection on a disaggregated basis,
the implementation or enhancement of immunization programmes
and other strategies of infectious disease control.
Article 12.2 (d). The right to health facilities, goods
and services (15)
17. "The creation of conditions which would assure
to all medical service and medical attention in the event
of sickness" (art. 12.2 (d)), both physical and mental,
includes the provision of equal and timely access to basic
preventive, curative, rehabilitative health services and
health education; regular screening programmes; appropriate
treatment of prevalent diseases, illnesses, injuries and
disabilities, preferably at community level; the provision
of essential drugs; and appropriate mental health treatment
and care. A further important aspect is the improvement
and furtherance of participation of the population in the
provision of preventive and curative health services, such
as the organization of the health sector, the insurance
system and, in particular, participation in political decisions
relating to the right to health taken at both the community
and national levels.
Article 12. Special topics of broad application
Non-discrimination and equal treatment
18. By virtue of article 2.2 and article 3, the Covenant
proscribes any discrimination in access to health care and
underlying determinants of health, as well as to means and
entitlements for their procurement, on the grounds of race,
colour, sex, language, religion, political or other opinion,
national or social origin, property, birth, physical or
mental disability, health status (including HIV/AIDS), sexual
orientation 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.
The Committee stresses that many measures, such as most
strategies and programmes designed to eliminate health-related
discrimination, can be pursued with minimum resource implications
through the adoption, modification or abrogation of legislation
or the dissemination of information. The Committee recalls
General Comment No. 3, paragraph 12, which states that even
in times of severe resource constraints, the vulnerable
members of society must be protected by the adoption of
relatively low-cost targeted programmes.
19. With respect to the right to health, equality of access
to health care and health services has to be emphasized.
States have a special obligation to provide those who do
not have sufficient means with the necessary health insurance
and health-care facilities, and to prevent any discrimination
on internationally prohibited grounds in the provision of
health care and health services, especially with respect
to the core obligations of the right to health. (16)
Inappropriate health resource allocation can lead to discrimination
that may not be overt. For example, investments should not
disproportionately favour expensive curative health services
which are often accessible only to a small, privileged fraction
of the population, rather than primary and preventive health
care benefiting a far larger part of the population.
Gender perspective
20. The Committee recommends that States integrate a gender
perspective in their health-related policies, planning,
programmes and research in order to promote better health
for both women and men. A gender-based approach recognizes
that biological and socio-cultural factors play a significant
role in influencing the health of men and women. The disaggregation
of health and socio-economic data according to sex is essential
for identifying and remedying inequalities in health.
Women and the right to health
21. To eliminate discrimination against women, there is
a need to develop and implement a comprehensive national
strategy for promoting women's right to health throughout
their life span. Such a strategy should include interventions
aimed at the prevention and treatment of diseases affecting
women, as well as policies to provide access to a full range
of high quality and affordable health care, including sexual
and reproductive services. A major goal should be reducing
women's health risks, particularly lowering rates of maternal
mortality and protecting women from domestic violence. The
realization of women's right to health requires the removal
of all barriers interfering with access to health services,
education and information, including in the area of sexual
and reproductive health. It is also important to undertake
preventive, promotive and remedial action to shield women
from the impact of harmful traditional cultural practices
and norms that deny them their full reproductive rights.
Children and adolescents
22. Article 12.2 (a) outlines the need to take measures
to reduce infant mortality and promote the healthy development
of infants and children. Subsequent international human
rights instruments recognize that children and adolescents
have the right to the enjoyment of the highest standard
of health and access to facilities for the treatment of
illness. (17)
The Convention on the Rights of the Child directs States
to ensure access to essential health services for the child
and his or her family, including pre- and post-natal care
for mothers. The Convention links these goals with ensuring
access to child-friendly information about preventive and
health-promoting behaviour and support to families and communities
in implementing these practices. Implementation of the principle
of non-discrimination requires that girls, as well as boys,
have equal access to adequate nutrition, safe environments,
and physical as well as mental health services. There is
a need to adopt effective and appropriate measures to abolish
harmful traditional practices affecting the health of children,
particularly girls, including early marriage, female genital
mutilation, preferential feeding and care of male children.
(18) Children with disabilities should be given the
opportunity to enjoy a fulfilling and decent life and to
participate within their community.
23. States parties should provide a safe and supportive
environment for adolescents, that ensures the opportunity
to participate in decisions affecting their health, to build
life-skills, to acquire appropriate information, to receive
counselling and to negotiate the health-behaviour choices
they make. The realization of the right to health of adolescents
is dependent on the development of youth-friendly health
care, which respects confidentiality and privacy and includes
appropriate sexual and reproductive health services.
24. In all policies and programmes aimed at guaranteeing
the right to health of children and adolescents their best
interests shall be a primary consideration.
Older persons
25. With regard to the realization of the right to health
of older persons, the Committee, in accordance with paragraphs
34 and 35 of General Comment No. 6 (1995), reaffirms the
importance of an integrated approach, combining elements
of preventive, curative and rehabilitative health treatment.
Such measures should be based on periodical check-ups for
both sexes; physical as well as psychological rehabilitative
measures aimed at maintaining the functionality and autonomy
of older persons; and attention and care for chronically
and terminally ill persons, sparing them avoidable pain
and enabling them to die with dignity.
Persons with disabilities
26. The Committee reaffirms paragraph 34 of its General
Comment No. 5, which addresses the issue of persons with
disabilities in the context of the right to physical and
mental health. Moreover, the Committee stresses the need
to ensure that not only the public health sector but also
private providers of health services and facilities comply
with the principle of non-discrimination in relation to
persons with disabilities.
Indigenous peoples
27. In the light of emerging international law and practice
and the recent measures taken by States in relation to indigenous
peoples, (19) the Committee deems it useful to identify
elements that would help to define indigenous peoples' right
to health in order better to enable States with indigenous
peoples to implement the provisions contained in article
12 of the Covenant. The Committee considers that indigenous
peoples have the right to specific measures to improve their
access to health services and care. These health services
should be culturally appropriate, taking into account traditional
preventive care, healing practices and medicines. States
should provide resources for indigenous peoples to design,
deliver and control such services so that they may enjoy
the highest attainable standard of physical and mental health.
The vital medicinal plants, animals and minerals necessary
to the full enjoyment of health of indigenous peoples should
also be protected. The Committee notes that, in indigenous
communities, the health of the individual is often linked
to the health of the society as a whole and has a collective
dimension. In this respect, the Committee considers that
development-related activities that lead to the displacement
of indigenous peoples against their will from their traditional
territories and environment, denying them their sources
of nutrition and breaking their symbiotic relationship with
their lands, has a deleterious effect on their health.
Limitations
28. Issues of public health are sometimes used by States
as grounds for limiting the exercise of other fundamental
rights. The Committee wishes to emphasize that the Covenant's
limitation clause, article 4, is primarily intended to protect
the rights of individuals rather than to permit the imposition
of limitations by States. Consequently a State party which,
for example, restricts the movement of, or incarcerates,
persons with transmissible diseases such as HIV/AIDS, refuses
to allow doctors to treat persons believed to be opposed
to a government, or fails to provide immunization against
the community's major infectious diseases, on grounds such
as national security or the preservation of public order,
has the burden of justifying such serious measures in relation
to each of the elements identified in article 4. Such restrictions
must be in accordance with the law, including international
human rights standards, compatible with the nature of the
rights protected by the Covenant, in the interest of legitimate
aims pursued, and strictly necessary for the promotion of
the general welfare in a democratic society.
29. In line with article 5.1, such limitations must be proportional,
i.e. the least restrictive alternative must be adopted where
several types of limitations are available. Even where such
limitations on grounds of protecting public health are basically
permitted, they should be of limited duration and subject
to review.
II. STATES PARTIES' OBLIGATIONS
General legal obligations
30. While the Covenant provides for progressive realization
and acknowledges the constraints due to the limits of available
resources, it also imposes on States parties various obligations
which are of immediate effect. States parties have immediate
obligations in relation to the right to health, such as
the guarantee that the right will be exercised without discrimination
of any kind (art. 2.2) and the obligation to take steps
(art. 2.1) towards the full realization of article 12. Such
steps must be deliberate, concrete and targeted towards
the full realization of the right to health. (20)
31. The progressive realization of the right to health over
a period of time should not be interpreted as depriving
States parties' obligations of all meaningful content. Rather,
progressive realization means that States parties have a
specific and continuing obligation to move as expeditiously
and effectively as possible towards the full realization
of article 12. (21)
32. As with all other rights in the Covenant, there is a
strong presumption that retrogressive measures taken in
relation to the right to health are not permissible. If
any deliberately retrogressive measures are taken, the State
party has the burden of proving that they have been introduced
after the most careful consideration of all alternatives
and that they are duly justified by reference to the totality
of the rights provided for in the Covenant in the context
of the full use of the State party's maximum available resources.
(22)
33. 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.
In turn, the obligation to fulfil contains obligations to
facilitate, provide and promote. (23) The obligation
to respect requires States to refrain from interfering
directly or indirectly with the enjoyment of the right to
health. The obligation to protect requires States
to take measures that prevent third parties from interfering
with article 12 guarantees. Finally, 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.
Specific legal obligations
34. In particular, States are under the obligation to respect
the right to health by, inter alia, refraining
from denying or limiting equal access for all persons, including
prisoners or detainees, minorities, asylum seekers and illegal
immigrants, to preventive, curative and palliative health
services; abstaining from enforcing discriminatory practices
as a State policy; and abstaining from imposing discriminatory
practices relating to women's health status and needs. Furthermore,
obligations to respect include a State's obligation to refrain
from prohibiting or impeding traditional preventive care,
healing practices and medicines, from marketing unsafe drugs
and from applying coercive medical treatments, unless on
an exceptional basis for the treatment of mental illness
or the prevention and control of communicable diseases.
Such exceptional cases should be subject to specific and
restrictive conditions, respecting best practices and applicable
international standards, including the Principles for the
Protection of Persons with Mental Illness and the Improvement
of Mental Health Care. (24)
In addition, States should refrain from limiting access
to contraceptives and other means of maintaining sexual
and reproductive health, from censoring, withholding or
intentionally misrepresenting health-related information,
including sexual education and information, as well as from
preventing people's participation in health-related matters.
States should also refrain from unlawfully polluting air,
water and soil, e.g. through industrial waste from State-owned
facilities, from using or testing nuclear, biological or
chemical weapons if such testing results in the release
of substances harmful to human health, and from limiting
access to health services as a punitive measure, e.g. during
armed conflicts in violation of international humanitarian
law.
35. Obligations to protect include, inter alia,
the duties of States to adopt legislation or to take other
measures ensuring equal access to health care and health-related
services provided by third parties; to ensure that privatization
of the health sector does not constitute a threat to the
availability, accessibility, acceptability and quality of
health facilities, goods and services; to control the marketing
of medical equipment and medicines by third parties; and
to ensure that medical practitioners and other health professionals
meet appropriate standards of education, skill and ethical
codes of conduct. States are also obliged to ensure that
harmful social or traditional practices do not interfere
with access to pre- and post-natal care and family-planning;
to prevent third parties from coercing women to undergo
traditional practices, e.g. female genital mutilation; and
to take measures to protect all vulnerable or marginalized
groups of society, in particular women, children, adolescents
and older persons, in the light of gender-based expressions
of violence. States should also ensure that third parties
do not limit people's access to health-related information
and services.
36. The obligation to fulfil requires States parties,
inter alia, to give sufficient recognition to the
right to health in the national political and legal systems,
preferably by way of legislative implementation, and to
adopt a national health policy with a detailed plan for
realizing the right to health. States must ensure provision
of health care, including immunization programmes against
the major infectious diseases, and ensure equal access for
all to the underlying determinants of health, such as nutritiously
safe food and potable drinking water, basic sanitation and
adequate housing and living conditions. Public health infrastructures
should provide for sexual and reproductive health services,
including safe motherhood, particularly in rural areas.
States have to ensure the appropriate training of doctors
and other medical personnel, the provision of a sufficient
number of hospitals, clinics and other health-related facilities,
and the promotion and support of the establishment of institutions
providing counselling and mental health services, with due
regard to equitable distribution throughout the country.
Further obligations include the provision of a public, private
or mixed health insurance system which is affordable for
all, the promotion of medical research and health education,
as well as information campaigns, in particular with respect
to HIV/AIDS, sexual and reproductive health, traditional
practices, domestic violence, the abuse of alcohol and the
use of cigarettes, drugs and other harmful substances. States
are also required to adopt measures against environmental
and occupational health hazards and against any other threat
as demonstrated by epidemiological data. For this purpose
they should formulate and implement national policies aimed
at reducing and eliminating pollution of air, water and
soil, including pollution by heavy metals such as lead from
gasoline. Furthermore, States parties are required to formulate,
implement and periodically review a coherent national policy
to minimize the risk of occupational accidents and diseases,
as well as to provide a coherent national policy on occupational
safety and health services. (25)
37. The obligation to fulfil (facilitate)
requires States inter alia to take positive measures
that enable and assist individuals and communities to enjoy
the right to health. States parties are also obliged to
fulfil (provide) a specific right contained
in the Covenant when individuals or a group are unable,
for reasons beyond their control, to realize that right
themselves by the means at their disposal. The obligation
to fulfil (promote) the right to health
requires States to undertake actions that create, maintain
and restore the health of the population. Such obligations
include: (i) fostering recognition of factors favouring
positive health results, e.g. research and provision of
information; (ii) ensuring that health services are culturally
appropriate and that health care staff are trained to recognize
and respond to the specific needs of vulnerable or marginalized
groups; (iii) ensuring that the State meets its obligations
in the dissemination of appropriate information relating
to healthy lifestyles and nutrition, harmful traditional
practices and the availability of services; (iv) supporting
people in making informed choices about their health.
International obligations
38. In its General Comment No. 3, the Committee drew attention
to the obligation of all States parties to take steps, individually
and through international assistance and cooperation, especially
economic and technical, towards the full realization of
the rights recognized in the Covenant, such as the right
to health. In the spirit of article 56 of the Charter of
the United Nations, the specific provisions of the Covenant
(articles 12, 2.1, 22 and 23) and the Alma-Ata Declaration
on primary health care, States parties should recognize
the essential role of international cooperation and comply
with their commitment to take joint and separate action
to achieve the full realization of the right to health.
In this regard, States parties are referred to the Alma-Ata
Declaration which proclaims that the existing gross inequality
in the health status of the people, particularly between
developed and developing countries, as well as within countries,
is politically, socially and economically unacceptable and
is, therefore, of common concern to all countries. (26)
39. To comply with their international obligations in relation
to article 12, States parties have to respect the enjoyment
of the right to health in other countries, and to prevent
third parties from violating the right in other countries,
if they are able to influence these third parties by way
of legal or political means, in accordance with the Charter
of the United Nations and applicable international law.
Depending on the availability of resources, States should
facilitate access to essential health facilities, goods
and services in other countries, wherever possible and provide
the necessary aid when required. (27) States parties
should ensure that the right to health is given due attention
in international agreements and, to that end, should consider
the development of further legal instruments. In relation
to the conclusion of other international agreements, States
parties should take steps to ensure that these instruments
do not adversely impact upon the right to health. Similarly,
States parties have an obligation to ensure that their actions
as members of international organizations take due account
of the right to health. Accordingly, States parties which
are members of international financial institutions, notably
the International Monetary Fund, the World Bank, and regional
development banks, should pay greater attention to the protection
of the right to health in influencing the lending policies,
credit agreements and international measures of these institutions.
40. States parties have a joint and individual responsibility,
in accordance with the Charter of the United Nations and
relevant resolutions of the United Nations General Assembly
and of the World Health Assembly, to cooperate in providing
disaster relief and humanitarian assistance in times of
emergency, including assistance to refugees and internally
displaced persons. Each State should contribute to this
task to the maximum of its capacities. Priority in the provision
of international medical aid, distribution and management
of resources, such as safe and potable water, food and medical
supplies, and financial aid should be given to the most
vulnerable or marginalized groups of the population. Moreover,
given that some diseases are easily transmissible beyond
the frontiers of a State, the international community has
a collective responsibility to address this problem. The
economically developed States parties have a special responsibility
and interest to assist the poorer developing States in this
regard.
41. States parties should refrain at all times from imposing
embargoes or similar measures restricting the supply of
another State with adequate medicines and medical equipment.
Restrictions on such goods should never be used as an instrument
of political and economic pressure. In this regard, the
Committee recalls its position, stated in General Comment
No. 8, on the relationship between economic sanctions and
respect for economic, social and cultural rights.
42. While only States are parties to the Covenant and thus
ultimately accountable for compliance with it, all members
of society - individuals, including health professionals,
families, local communities, intergovernmental and non-governmental
organizations, civil society organizations, as well as the
private business sector - have responsibilities regarding
the realization of the right to health. State parties should
therefore provide an environment which facilitates the discharge
of these responsibilities.
Core obligations
43. In General Comment No. 3, the Committee confirms that
States parties have a core obligation to ensure the satisfaction
of, at the very least, minimum essential levels of each
of the rights enunciated in the Covenant, including essential
primary health care. Read in conjunction with more contemporary
instruments, such as the Programme of Action of the International
Conference on Population and Development, (28) the
Alma-Ata Declaration provides compelling guidance on the
core obligations arising from article 12. Accordingly, in
the Committee's view, these core obligations include at
least the following obligations:
(a) To ensure the right of access to health facilities,
goods and services on a non-discriminatory basis, especially
for vulnerable or marginalized groups;
(b) To ensure access to the minimum essential food which
is nutritionally adequate and safe, to ensure freedom
from hunger to everyone;
(c) To ensure access to basic shelter, housing and sanitation,
and an adequate supply of safe and potable water;
(d) To provide essential drugs, as from time to time defined
under the WHO Action Programme on Essential Drugs;
(e) To ensure equitable distribution of all health facilities,
goods and services;
(f) To adopt and implement a national public health strategy
and plan of action, on the basis of epidemiological evidence,
addressing the health concerns of the whole population;
the strategy and plan of action shall be devised, and
periodically reviewed, on the basis of a participatory
and transparent process; they shall include methods, such
as right to health indicators and benchmarks, by which
progress can be closely monitored; the process by which
the strategy and plan of action are devised, as well as
their content, shall give particular attention to all
vulnerable or marginalized groups.
44. The Committee also confirms that the following are
obligations of comparable priority:
(a) To ensure reproductive, maternal (pre-natal as well
as post-natal) and child health care;
(b) To provide immunization against the major infectious
diseases occurring in the community;
(c) To take measures to prevent, treat and control epidemic
and endemic diseases;
(d) To provide education and access to information concerning
the main health problems in the community, including methods
of preventing and controlling them;
(e) To provide appropriate training for health personnel,
including education on health and human rights.
45. For the avoidance of any doubt, the Committee wishes
to emphasize that it is particularly incumbent on States
parties and other actors in a position to assist, to provide
"international assistance and cooperation, especially
economic and technical" (29) which enable developing
countries to fulfil their core and other obligations indicated
in paragraphs 43 and 44 above.
III. VIOLATIONS
46. When the normative content of article 12 (Part I) is
applied to the obligations of States parties (Part II),
a dynamic process is set in motion which facilitates identification
of violations of the right to health. The following paragraphs
provide illustrations of violations of article 12.
47. In determining which actions or omissions amount to
a violation of the right to health, it is important to distinguish
the inability from the unwillingness of a State party to
comply with its obligations under article 12. This follows
from article 12.1, which speaks of the highest attainable
standard of health, as well as from article 2.1 of the Covenant,
which obliges each State party to take the necessary steps
to the maximum of its available resources. A State which
is unwilling to use the maximum of its available resources
for the realization of the right to health is in violation
of its obligations under article 12. If resource constraints
render it impossible for a State to comply fully with its
Covenant obligations, it has the burden of justifying that
every effort has nevertheless been made to use all available
resources at its disposal in order to satisfy, as a matter
of priority, the obligations outlined above. It should be
stressed, however, that a State party cannot, under any
circumstances whatsoever, justify its non-compliance with
the core obligations set out in paragraph 43 above, which
are non-derogable.
48. Violations of the right to health can occur through
the direct action of States or other entities insufficiently
regulated by States. The adoption of any retrogressive measures
incompatible with the core obligations under the right to
health, outlined in paragraph 43 above, constitutes a violation
of the right to health. Violations through acts of commission
include the formal repeal or suspension of legislation necessary
for the continued enjoyment of the right to health or the
adoption of legislation or policies which are manifestly
incompatible with pre-existing domestic or international
legal obligations in relation to the right to health.
49. Violations of the right to health can also occur through
the omission or failure of States to take necessary measures
arising from legal obligations. Violations through acts
of omission include the failure to take appropriate
steps towards the full realization of everyone's right to
the enjoyment of the highest attainable standard of physical
and mental health, the failure to have a national policy
on occupational safety and health as well as occupational
health services, and the failure to enforce relevant laws.
Violations of the obligation to respect
50. Violations of the obligation to respect are those State
actions, policies or laws that contravene the standards
set out in article 12 of the Covenant and are likely to
result in bodily harm, unnecessary morbidity and preventable
mortality. Examples include the denial of access to health
facilities, goods and services to particular individuals
or groups as a result of de jure or de facto discrimination;
the deliberate withholding or misrepresentation of information
vital to health protection or treatment; the suspension
of legislation or the adoption of laws or policies that
interfere with the enjoyment of any of the components of
the right to health; and the failure of the State to take
into account its legal obligations regarding the right to
health when entering into bilateral or multilateral agreements
with other States, international organizations and other
entities, such as multinational corporations.
Violations of the obligation to protect
51. Violations of the obligation to protect follow from
the failure of a State to take all necessary measures to
safeguard persons within their jurisdiction from infringements
of the right to health by third parties. This category includes
such omissions as the failure to regulate the activities
of individuals, groups or corporations so as to prevent
them from violating the right to health of others; the failure
to protect consumers and workers from practices detrimental
to health, e.g. by employers and manufacturers of medicines
or food; the failure to discourage production, marketing
and consumption of tobacco, narcotics and other harmful
substances; the failure to protect women against violence
or to prosecute perpetrators; the failure to discourage
the continued observance of harmful traditional medical
or cultural practices; and the failure to enact or enforce
laws to prevent the pollution of water, air and soil by
extractive and manufacturing industries.
Violations of the obligation to fulfil
52. Violations of the obligation to fulfil occur through
the failure of States parties to take all necessary steps
to ensure the realization of the right to health. Examples
include the failure to adopt or implement a national health
policy designed to ensure the right to health for everyone;
insufficient expenditure or misallocation of public resources
which results in the non-enjoyment of the right to health
by individuals or groups, particularly the vulnerable or
marginalized; the failure to monitor the realization of
the right to health at the national level, for example by
identifying right to health indicators and benchmarks; the
failure to take measures to reduce the inequitable distribution
of health facilities, goods and services; the failure to
adopt a gender-sensitive approach to health; and the failure
to reduce infant and maternal mortality rates.
IV. IMPLEMENTATION AT THE NATIONAL
LEVEL
Framework legislation
53. The most appropriate feasible measures to implement
the right to health will vary significantly from one State
to another. Every State has a margin of discretion in assessing
which measures are most suitable to meet its specific circumstances.
The Covenant, however, clearly imposes a duty on each State
to take whatever steps are necessary to ensure that everyone
has access to health facilities, goods and services so that
they can enjoy, as soon as possible, the highest attainable
standard of physical and mental health. This requires the
adoption of a national strategy to ensure to all the enjoyment
of the right to health, based on human rights principles
which define the objectives of that strategy, and the formulation
of policies and corresponding right to health indicators
and benchmarks. The national health strategy should also
identify the resources available to attain defined objectives,
as well as the most cost-effective way of using those resources.
54. The formulation and implementation of national health
strategies and plans of action should respect, inter
alia, the principles of non-discrimination and people's
participation. In particular, the right of individuals and
groups to participate in decision-making processes, which
may affect their development, must be an integral component
of any policy, programme or strategy developed to discharge
governmental obligations under article 12. Promoting health
must involve effective community action in setting priorities,
making decisions, planning, implementing and evaluating
strategies to achieve better health. Effective provision
of health services can only be assured if people's participation
is secured by States.
55. The national health strategy and plan of action should
also be based on the principles of accountability, transparency
and independence of the judiciary, since good governance
is essential to the effective implementation of all human
rights, including the realization of the right to health.
In order to create a favourable climate for the realization
of the right, States parties should take appropriate steps
to ensure that the private business sector and civil society
are aware of, and consider the importance of, the right
to health in pursuing their activities.
56. States should consider adopting a framework law to operationalize
their right to health national strategy. The framework law
should establish national mechanisms for monitoring the
implementation of national health strategies and plans of
action. It should include provisions on the targets to be
achieved and the time-frame for their achievement; the means
by which right to health benchmarks could be achieved; the
intended collaboration with civil society, including health
experts, the private sector and international organizations;
institutional responsibility for the implementation of the
right to health national strategy and plan of action; and
possible recourse procedures. In monitoring progress towards
the realization of the right to health, States parties should
identify the factors and difficulties affecting implementation
of their obligations.
Right to health indicators and benchmarks
57. National health strategies should identify appropriate
right to health indicators and benchmarks. The indicators
should be designed to monitor, at the national and international
levels, the State party's obligations under article 12.
States may obtain guidance on appropriate right to health
indicators, which should address different aspects of the
right to health, from the ongoing work of WHO and the United
Nations Children's Fund (UNICEF) in this field. Right to
health indicators require disaggregation on the prohibited
grounds of discrimination.
58. Having identified appropriate right to health indicators,
States parties are invited to set appropriate national benchmarks
in relation to each indicator. During the periodic reporting
procedure the Committee will engage in a process of scoping
with the State party. Scoping involves the joint consideration
by the State party and the Committee of the indicators and
national benchmarks which will then provide the targets
to be achieved during the next reporting period. In the
following five years, the State party will use these national
benchmarks to help monitor its implementation of article
12. Thereafter, in the subsequent reporting process, the
State party and the Committee will consider whether or not
the benchmarks have been achieved, and the reasons for any
difficulties that may have been encountered.
Remedies and accountability
59. Any person or group victim of a violation of the right
to health should have access to effective judicial or other
appropriate remedies at both national and international
levels. (30) All victims of such violations should
be entitled to adequate reparation, which may take the form
of restitution, compensation, satisfaction or guarantees
of non-repetition. National ombudsmen, human rights commissions,
consumer forums, patients' rights associations or similar
institutions should address violations of the right to health.
60. The incorporation in the domestic legal order of international
instruments recognizing the right to health can significantly
enhance the scope and effectiveness of remedial measures
and should be encouraged in all cases. (31) Incorporation
enables courts to adjudicate violations of the right to
health, or at least its core obligations, by direct reference
to the Covenant.
61. Judges and members of the legal profession should be
encouraged by States parties to pay greater attention to
violations of the right to health in the exercise of their
functions.
62. States parties should respect, protect, facilitate and
promote the work of human rights advocates and other members
of civil society with a view to assisting vulnerable or
marginalized groups in the realization of their right to
health.
V. OBLIGATIONS OF ACTORS OTHER THAN
STATES PARTIES
63. The role of the United Nations agencies and programmes,
and in particular the key function assigned to WHO in realizing
the right to health at the international, regional and country
levels, is of particular importance, as is the function
of UNICEF in relation to the right to health of children.
When formulating and implementing their right to health
national strategies, States parties should avail themselves
of technical assistance and cooperation of WHO. Further,
when preparing their reports, States parties should utilize
the extensive information and advisory services of WHO with
regard to data collection, disaggregation, and the development
of right to health indicators and benchmarks.
64. Moreover, coordinated efforts for the realization of
the right to health should be maintained to enhance the
interaction among all the actors concerned, including the
various components of civil society. In conformity with
articles 22 and 23 of the Covenant, WHO, The International
Labour Organization, the United Nations Development Programme,
UNICEF, the United Nations Population Fund, the World Bank,
regional development banks, the International Monetary Fund,
the World Trade Organization and other relevant bodies within
the United Nations system, should cooperate effectively
with States parties, building on their respective expertise,
in relation to the implementation of the right to health
at the national level, with due respect to their individual
mandates. In particular, the international financial institutions,
notably the World Bank and the International Monetary Fund,
should pay greater attention to the protection of the right
to health in their lending policies, credit agreements and
structural adjustment programmes. When examining the reports
of States parties and their ability to meet the obligations
under article 12, the Committee will consider the effects
of the assistance provided by all other actors. The adoption
of a human rights-based approach by United Nations specialized
agencies, programmes and bodies will greatly facilitate
implementation of the right to health. In the course of
its examination of States parties' reports, the Committee
will also consider the role of health professional associations
and other non-governmental organizations in relation to
the States' obligations under article 12.
65. The role of WHO, the Office of the United Nations High
Commissioner for Refugees, the International Committee of
the Red Cross/Red Crescent and UNICEF, as well as non governmental
organizations and national medical associations, is of particular
importance in relation to disaster relief and humanitarian
assistance in times of emergencies, including assistance
to refugees and internally displaced persons. Priority in
the provision of international medical aid, distribution
and management of resources, such as safe and potable water,
food and medical supplies, and financial aid should be given
to the most vulnerable or marginalized groups of the population.
Notes
1. For example, the principle of non-discrimination in relation
to health facilities, goods and services is legally enforceable
in numerous national jurisdictions.
2. In its resolution 1989/11.
3. The Principles for the Protection of Persons with Mental
Illness and for the Improvement of Mental Health Care adopted
by the United Nations General Assembly in 1991 (resolution
46/119) and the Committee's General Comment No. 5 on persons
with disabilities apply to persons with mental illness; the
Programme of Action of the International Conference on Population
and Development held at Cairo in 1994, as well as the Declaration
and Programme for Action of the Fourth World Conference on
Women held in Beijing in 1995 contain definitions of reproductive
health and women's health, respectively.
4. Common article 3 of the Geneva Conventions for the protection
of war victims (1949); Additional Protocol I (1977) relating
to the Protection of Victims of International Armed Conflicts,
art. 75 (2) (a); Additional Protocol II (1977) relating to
the Protection of Victims of Non-International Armed Conflicts,
art. 4 (a).
5. See WHO Model List of Essential Drugs, revised December
1999, WHO Drug Information, vol. 13, No. 4, 1999.
6. Unless expressly provided otherwise, any reference in this
General Comment to health facilities, goods and services includes
the underlying determinants of health outlined in paras. 11
and 12 (a) of this General Comment.
7. See paras. 18 and 19 of this General Comment.
8. See article 19.2 of the International Covenant on Civil
and Political Rights. This General Comment gives particular
emphasis to access to information because of the special importance
of this issue in relation to health.
9. In the literature and practice concerning the right to
health, three levels of health care are frequently referred
to: primary health care typically deals with common
and relatively minor illnesses and is provided by health professionals
and/or generally trained doctors working within the community
at relatively low cost; secondary health care is
provided in centres, usually hospitals, and typically deals
with relatively common minor or serious illnesses that cannot
be managed at community level, using specialty-trained health
professionals and doctors, special equipment and sometimes
in-patient care at comparatively higher cost; tertiary
health care is provided in relatively few centres, typically
deals with small numbers of minor or serious illnesses requiring
specialty-trained health professionals and doctors and special
equipment, and is often relatively expensive. Since forms
of primary, secondary and tertiary health care frequently
overlap and often interact, the use of this typology does
not always provide sufficient distinguishing criteria to be
helpful for assessing which levels of health care States parties
must provide, and is therefore of limited assistance in relation
to the normative understanding of article 12.
10. According to WHO, the stillbirth rate is no longer commonly
used, infant and under-five mortality rates being measured
instead.
11. Prenatal denotes existing or occurring before
birth; perinatal refers to the period shortly before
and after birth (in medical statistics the period begins with
the completion of 28 weeks of gestation and is variously defined
as ending one to four weeks after birth); neonatal,
by contrast, covers the period pertaining to the first four
weeks after birth; while post-natal denotes occurrence
after birth. In this General Comment, the more generic terms
pre- and post-natal are exclusively employed.
12. Reproductive health means that women and men have the
freedom to decide if and when to reproduce and the right to
be informed and to have access to safe, effective, affordable
and acceptable methods of family planning of their choice
as well as the right of access to appropriate health-care
services that will, for example, enable women to go safely
through pregnancy and childbirth.
13. The Committee takes note, in this regard, of Principle
1 of the Stockholm Declaration of 1972 which states: "Man
has the fundamental right to freedom, equality and adequate
conditions of life, in an environment of a quality that permits
a life of dignity and well-being", as well as of recent
developments in international law, including General Assembly
resolution 45/94 on the need to ensure a healthy environment
for the well-being of individuals; Principle 1 of the Rio
Declaration; and regional human rights instruments such as
article 10 of the San Salvador Protocol to the American Convention
on Human Rights.
14. ILO Convention No. 155, art. 4.2.
15. See para. 12 (b) and note 8 above.
16. For the core obligations, see paras. 43 and 44 of the
present General Comments.
17. Article 24.1 of the Convention on the Rights of the Child.
18. See World Health Assembly resolution WHA47.10, 1994, entitled
"Maternal and child health and family planning: traditional
practices harmful to the health of women and children".
19. Recent emerging international norms relevant to indigenous
peoples include the ILO Convention No. 169 concerning Indigenous
and Tribal Peoples in Independent Countries (1989); articles
29 (c) and (d) and 30 of the Convention on the Rights of the
Child (1989); article 8 (j) of the Convention on Biological
Diversity (1992), recommending that States respect, preserve
and maintain knowledge, innovation and practices of indigenous
communities; Agenda 21 of the United Nations Conference on
Environment and Development (1992), in particular chapter
26; and Part I, paragraph 20, of the Vienna Declaration and
Programme of Action (1993), stating that States should take
concerted positive steps to ensure respect for all human rights
of indigenous people, on the basis of non-discrimination.
See also the preamble and article 3 of the United Nations
Framework Convention on Climate Change (1992); and article
10 (2) (e) of the United Nations Convention to Combat Desertification
in Countries Experiencing Serious Drought and/or Desertification,
Particularly in Africa (1994). During recent years an increasing
number of States have changed their constitutions and introduced
legislation recognizing specific rights of indigenous peoples.
20. See General Comment No. 13, para. 43.
21. See General Comment No. 3, para. 9; General Comment No.
13, para. 44.
22. See General Comment No. 3, para. 9; General Comment No.
13, para. 45.
23. According to General Comments Nos. 12 and 13, the obligation
to fulfil incorporates an obligation to facilitate
and an obligation to provide. In the present General
Comment, the obligation to fulfil also incorporates an obligation
to promote because of the critical importance of
health promotion in the work of WHO and elsewhere.
24. General Assembly resolution 46/119 (1991).
25. Elements of such a policy are the identification, determination,
authorization and control of dangerous materials, equipment,
substances, agents and work processes; the provision of health
information to workers and the provision, if needed, of adequate
protective clothing and equipment; the enforcement of laws
and regulations through adequate inspection; the requirement
of notification of occupational accidents and diseases, the
conduct of inquiries into serious accidents and diseases,
and the production of annual statistics; the protection of
workers and their representatives from disciplinary measures
for actions properly taken by them in conformity with such
a policy; and the provision of occupational health services
with essentially preventive functions. See ILO Occupational
Safety and Health Convention, 1981 (No. 155) and Occupational
Health Services Convention, 1985 (No. 161).
26. Article II, Alma-Ata Declaration, Report of the International
Conference on Primary Health Care, Alma-Ata, 6-12 September
1978, in: World Health Organization, "Health for All"
Series, No. 1, WHO, Geneva, 1978.
27. See para. 45 of this General Comment.
28. Report of the International Conference on Population
and Development, Cairo, 5-13 September 1994
(United Nations publication, Sales No. E.95.XIII.18), chap.
I, resolution 1, annex, chaps. VII and VIII.
29. Covenant, art. 2.1.
30. Regardless of whether groups as such can seek remedies
as distinct holders of rights, States parties are bound by
both the collective and individual dimensions of article 12.
Collective rights are critical in the field of health; modern
public health policy relies heavily on prevention and promotion
which are approaches directed primarily to groups.
31. See General Comment No. 2, para. 9.
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