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The Harriet and Robert Heilbrunn Department of Population and Family Health

intro | relationship to health | key standards, actors & venues | forms of work | role of the US | conclusion

Key Actors, Standards and Venues

This section focuses on the formal, legal frameworks of the international and national system of rights protection.

Key Actors

Key actors include

• Inter-governmental organizations
• national and local governments
• non-governmental organizations
• civil society movements and actors such as trade unions, religious institutions, corporations

Inter-governmental organizations (IGO)

An IGO is an organization established by three or more national governments through a treaty to pursue common aims. An international organization can be universal in scope (such as the United Nations, the International Organization for Migration) or regional (the Organization of American States, Organization of African Unity, Organization for Security and Cooperation in Europe, South Asian Association for Regional Cooperation). Other IGOs whose work may have an impact on rights include the World Health Organization and the World Trade Organization (WTO). Some IGOs have human rights treaties at the center of their work; some have no references to human rights what so ever.

The United Nations: A Universal IGO
The United Nations was formed in 1945, after World War II, to promote peace and security among nations. Promotion of human rights and fundamental freedoms also became part of the organization’s main purposes, in part in response to the atrocities of the Holocaust. The UN Charter established human rights obligations for member states; over the last 50 years the UN has developed a wide range of bodies and programs that address human rights and has adopted many treaties that address human rights.

Regional IGOs

Different regions of the world have developed specific human rights standards, which are established and enforced through regional Inter-governmental Organizations (IGOs).

• The Americas: The Organization of American States (OAS) has several rights related standards, including the American Declaration of the Rights and Duties of Man and the American Convention of Human Rights, and protocols (subsidiary treaties) which address Economic and Social Rights and Violence against women.
• Africa: The African Charter for Human and People’s Rights sets standards for members of the African Union; the AU has also has set specific standards for children’s rights and women’s rights.
• Europe: has three different rights related systems. The two with binding legal rights standards are the Council of Europe, whose Convention on the Protection of Human Rights provides for binding decisions and the European Union, whose Charters and directives set standards for workers rights. The Organization for Security and Cooperation (OSCE) in Europe has political declarations on rights. Not every European nation is a member of all three systems.
• Asia: Asia does not have a regional IGO with a binding rights treaty, but it does have two IGOs, ASEAN and SAARC which increasingly address rights issues.

Non-governmental organizations (NGOs)

An NGO is an organization that is independent from governments in its initiation and determination of its mandate and activities, although some NGOs receive governmental funding. In general, NGOs do not operate for a profit. NGOs can play a role in national and international affairs by virtue of their activities, but they do not necessarily possess any official status.

Where an organization's membership or activity is limited to a specific country, it's considered a national NGO; if its activities cross borders, it becomes an international NGO. Some of the best-known international NGOs include Médécins Sans Frontières, Amnesty International, Human Rights Watch, CARE, and Oxfam.

Since the founding of the UN, there has been a worldwide proliferation of NGOs. Some advocate states for law or policy change; other NGOs provide services. Some try to do both.

Name some local or national NGOs that do health and human rights work? Are they always explicit about doing ‘human rights’? What are their mandates and activities?

B. Standards

Human rights standards can be created

• By drafting laws at the local or national or international level
• By wide-ranging, explicit and established practice of states (when standards are created this way, they are called customary law .) International customary law has been accepted to bar things such as slavery, piracy and torture.

EXAMPLE: Torture is established as a customary international law violation and is a legally drafted treaty standard. That doesn’t mean that every government agrees on what actions make up torture OR agrees that evidence shows that they have committed torture, as in the case of Abu Ghraib.

• By incorporation in documents of political commitment, such as the final documents of World Conferences [see venues, below].
• By vote in an international or national venue, explicitly creating a standard that is not in the form of a law, but has the weight of being agreed to and voted on formally such as Declarations adopted by the UN General Assembly.

International human rights standards

Key elements of international rights standards are that they

1. Create three kinds of obligations on states (to respect, protect and fulfill rights)
2. Define the scope and content of the human rights claim
3. Require non-discrimination in application
4. Set up remedies for failures
5. Are publically known and available to all

Some of the most important international human rights standards are:

Universal Declaration of Human Rights (UDHR) (1948) http://www.un.org/Overview/rights.html

The UDHR is the formal basis of all rights work in the UN system – it promises a range of rights to everyone, without discrimination. These rights include civil and political rights and economic, social and cultural rights (including freedom from torture and slavery, rights to information, an adequate standard of living, and to education).

During the work to draft binding legal standards, derived from the UDHR, the politics of the Cold War and the specific ideologies of nation states, led to a polarization of rights claims. The ideological opposition between the USSR and the USA at that time resulted in a drafting of standards which divided rights into two different categories –

• negative obligations, requiring only that the state refrain from harming. The two categories of rights associated with this position are civil and political rights (for the most part, this is what the US Constitution is structured as)
• affirmative or positive obligations, requiring that states take steps to fulfill rights, including setting up systems to provide the service necessary to enjoy the right, such as schools for the right to education or health services for the right to health. These obligations were associated with economic and social rights. This model includes some US state Constitutional obligations (public health obligations, education, etc.) and Soviet socialism.

Two major human rights treaties were drafted as a result of this polarization of ideology:

International Covenant on Civil and Political Rights (1966) – This Covenant affirms some key rights such as non-discrimination on the basis of race, sex and religion, among other grounds, equality before the law, freedom from arbitrary detention, liberty and security of the body, freedom of information, etc.
http://www.unhchr.ch/html/menu3/b/a_ccpr.htm

International Covenant on Economic, Social and Cultural Rights (1966) – this Covenant sets out basic economic, social and cultural rights. In notes that while states can progress to fulfill these rights, according to their level of development, they cannot at any time discriminate in their steps. The right to health is covered in this treaty.
http://www.unhchr.ch/html/menu3/b/a_cescr.htm

In the lead up to the World Conference on Human Rights in Vienna in 1993, the post-Cold war politics allowed advocates to overcome this dichotomy, pointing out that almost all rights had aspects of positive and negative obligations and most national governments accept a hybrid of obligations.

Several other major human rights treaties are of significant importance to public health practitioners. Below are treaties which are particularly relevant to work in reproductive, adolescent and child health, and public health work in situations of forced migration.

Convention on the Elimination of All Forms of Racial Discrimination (1965) – This Convention bans discrimination on the basis of race and ethnicity and makes the state responsible for ensuring that non-state actors do not discriminate (in health care, in housing, in employment etc). It also accepts that states may need to take temporary special measures to remedy the barriers from racist histories.
http://www.unhchr.ch/html/menu3/b/d_icerd.htm

• Article 1: 1. In this Convention, the term "racial discrimination" shall mean any distinction, exclusion, restriction or preference based on race, colour, descent, or national or ethnic origin which has the purpose or effect of nullifying or impairing the recognition, enjoyment or exercise, on an equal footing, of human rights and fundamental freedoms in the political, economic, social, cultural or any other field of public life.

Convention on the Elimination of All Forms of Discrimination against Women (CEDAW) (1979) – This Convention bans discrimination against women, including on marital status. It says that States must use all appropriate measures to eliminate inequality in public and private life. CEDAW’s understanding of descrimination is broad, not limited to intentional descrimination and reaches economic and social rights, as well as private life. Thus, this treaty helps set the framework for reproductive and other health rights. http://www.unhchr.ch/html/menu3/b/e1cedaw.htm

• Article 1: For the purposes of the present Convention, the term "discrimination against women" shall mean any distinction, exclusion or restriction made on the basis of sex which has the effect or purpose of impairing or nullifying the recognition, enjoyment or exercise by women, irrespective of their marital status, on a basis of equality of men and women, of human rights and fundamental freedoms in the political, economic, social, cultural, civil or any other field.

Evolving Standards in Human Rights: The Case of Violence Against Women

Human rights standards are dynamic, constantly evolving in response to advocacy efforts and changing norms.

Violence against women (VAW) is not addressed in the text of the Convention on the Elimination of All Forms of Discrimination Against Women of 1965. However, in the years since CEDAW was enacted, advocacy campaigns led to recognition of VAW as a human rights violation under the treaty, through interpretation by the committee of experts that monitors it. For example, in 1992 General Comment 19 was adopted to affirm that VAW functions as a form of discrimination against women and therefore falls within the treaty. It also established that the Convention holds states accountable for acts by non state actors, if it does nothing to protect against them.

Convention on the Rights of the Child ( 1989) – this Convention promotes the rights of all persons under 18, and establishes that the principles that govern a child’s rights include their best interest, their ability to thrive, their equality, and their ability to increasingly participate in the decisions affecting them. It balances special protection and rights for minors with their rights and freedoms.
http://www.unhchr.ch/html/menu3/b/k2crc.htm

Convention on the Protection of the Rights of All Migrant Workers and Members of Their Families (1990) – this Convention’s primary objective is to protect migrant workers, both legal and irregular from exploitation and other rights violation. It has been signed thus far by (primarily) sending countries.
http://www.unhchr.ch/html/menu3/b/m_mwctoc.htm

Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (1984) – this Convention establishes that torture is an abuse attributable to the state, it defines its scope and that it can be prosecuted anywhere a torturer is found, among other obligations.
http://www.unhchr.ch/html/menu3/b/h_cat39.htm

Convention on the Prevention and Punishment of the Crime of Genocide (1948) This early Convention defines the crime of genocide and states that all nations must intervene to stop genocide.
http://www.unhchr.ch/html/menu3/b/p_genoci.htm

National human rights standards

On the national level, a Constitution or other nation-wide legislation sets the standards for human rights claims.

In the US, it is the US Constitution (1787), and federal law alongside a network of state and local laws and constitutions that set government obligations and rights. The US system is dense and complex. However, the guarantees of the US Constitution are relatively limited in scope compared with the guarantees of international law, especially in the realm of economic and social rights. Key US Constitutional rights have been added over the last 200+ years and are contained in the Bill of Rights.

• Amendment 1: Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the government for a redress of grievances.
  
• Amendment 4: The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.

• Amendment 13: Neither slavery nor involuntary servitude, except as a punishment for crime whereof the party shall have been duly convicted, shall exist within the United States , or any place subject to their jurisdiction.

• Amendment 14, section 1: All persons born or naturalized in the United States and subject to the jurisdiction thereof are citizens of the United States and of the State wherein they reside. No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States ; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.

Reproductive health rights in national Constitutions : evolving and contested standards

In early 2004, both houses of the Bolivian Congress unanimously passed a Framework Law on Reproductive and Sexual Rights that would have consolidated and given force to already existing norms in Bolivian law, and those to which the Bolivian government has committed itself through international agreements including the ICPD Programme of Action. Under pressure from the Catholic and evangelical churches in Bolivia, however, President Carlos Mesa refused to sign the bill on May 21, 2004 and returned it to the Congress for further review and discussion. Congress is expected to renew consideration of the issue in September, 2004.

Local/State standards
Each state of the United States has a constitution that establishes rights standards and protections for residents of that state. While the US Constitution has no standards with regard to the health and well-being of the population, the New York State Constitution does:

• Article XVII, S1. The aid, care and support of the needy are public concerns and shall be provided by the state and by such of its subdivisions, and in such manner and by such means, as the legislature may from time to time determine.
• Article XVII, S 3. The protection and promotion of the health of the inhabitants of the state are matters of public concern and provision therefore shall be made by the state and by such of its subdivisions and in such manner, and by such means as the legislature shall from time to time determine.

Evolving Rights Work in the United States : The Case of Poverty

The Women’s Economic Agenda Project has worked on the issue of poverty in the United States for more than 20 years with the mission of empowering poor women and families. WEAP organizes poor women to learn about and confront violations like lack of healthcare, living wages, affordable housing, and adequate education, covered under the Universal Declaration of Human Rights (articles 23, 25 and 26). While economic and social rights are not recognized under US law, by organizing and training women to be advocates for the recognition of these rights in the US, they are changing the dialogue around issues of poverty in the United States and making the case, using international human rights standards, that the state has a responsibility not only to respect and protect, but also to fulfill.

Along side of international standards, different sets of mechanisms, methods and strategies that can be used for their enforcement. In the formal side, these mechanisms include treaty bodies (committees of experts that are supposed to fairly monitor the conventions). In the political/activist world, these mechanisms include human rights education, advocacy, documentation and scholarly work.

Venues

where human rights standards and policies get made and their practice evaluated

In the UN, there are numerous and different venues for rights work

The Role of Human Rights in the United Nations

1. UN General Assembly: the authoritative parliamentary like body of the UN – all national governments are members and can vote, and the body can draft and adopt human rights standards.

2. UN Security Council: a 15 member body that with special powers, authorized by the UN Charter, including such powers affecting rights, as the power to intervene with military force in countries where situations threaten peace and stability.

3. Other political bodies where human rights are debated

• UN Commission on Human Rights
• UN Commission on the Status of Women
• UN Crime Commission

4. Agencies and Funds that have incorporated human rights into their work

• UNAIDS – The Joint United Nations Program on HIV/AIDS
• UNICEF – The United Nations Children’s’ Fund
• UNFPA – United Nations Population Fund
• UNDP – United Nations Development Programme
• WHO – World Health Organization
• UNIFEM – United Nations Development Fund for Women
• UNOCHA – United Nations Office of the Coordination of Humanitarian Assistance

5.Independent Experts

• Treaty bodies: committees of experts elected by states but then charged with independent monitoring of the implementation of the treaties
• Special Rapporteurs: individuals charged with reporting as independent experts on themes in human rights, like the right to health or on specific countries

6. UN World Conferences (discussed below in detail)

Over the last decade or so, many developments have been made in rights, especially health as a right, in various United Nations World Conferences. World Conferences of the 1990’s were instrumental in making these changes happen, in large part due to the advocacy of local groups around the world.

The UN has used World Conferences to bring nations together at regular time periods to address critical global issues and use the politics of debate to move global commitments, and in some cases to call for new rights. Key issues addressed in World Conferences over the last decade are:

• Rio Conference on the environment and development (1992) which addressed environmental restoration, preservation and social development and aimed to meet the challenges of global warming, pollution, biodiversity and the inter-related social problems of poverty, health and population.
• Vienna Conference on Human Rights (1993) which addressed inter-related rights, women’s rights as human rights, rights of indigenous people, etc. in the post-Cold War.
• The Cairo Conference on Population and Development (also known as the ICPD) (1994) which changed the paradigm of intervention from population control to reproductive rights.
• The Beijing Fourth World Conference on Women (also known as the FWCW) (1995) which addressed the global equality and development for women, increasingly integrating rights-oriented actions in counter-acting violence, poverty, inequality in education and health and addressing women’s participation on politics, the environment and peace.
• The Durban World Conference Against Racism (also known as the WCAR) (2001) probably the last of the big theme conferences, attempted to address the global causes and impacts of racism in all spheres of life, especially in economic, political and legal action; and committed nations to eradicating both intentional and de-facto racism in all its forms, including as it intersects with gender and citizenship.

**Although NGOs do not participate in the decision making process or participate in writing the policy that comes out of the Conferences in the Programme of Action, their advocacy and lobbying efforts leading up to and during the Conferences, have proved to be very influential. The standards agreed to in the final Programme of Action of a World Conference are non-binding.

The International Conference on Population and Development Cairo , Egypt (1994).

The Programme of Action that came out of the ICPD signaled a paradigm shift in the way that population and development were thought about and thus, the way policies were created and carried out. The focus of family planning and reproductive health programs shifted from a means to achieving demographic targets to a means empowering women and men with choice, access to information, education and health services, and skill development.

• Paragraph 7.2: Reproductive health is a state of complete physical, mental and social well-being and not merely the absence of disease or infirmity, in all matters relating to the reproductive system and to its functions and processes. Reproductive health therefore implies that people are able to have a satisfying and safe sex life and that they have the capability to reproduce and the freedom to decide if, when and how often to do so. Implicit in... (READ MORE of Paragraph 7.2 )

The World Conference on Human Rights Vienna , Austria (1993) Vienna re affirmed the universality, indivisibility and inter-relatedness of all human rights and affirmed that women’s human rights were part of universal human rights claims, including bringing attention to violence against women, as well as paying attention to migrants, children and indigenous peoples.

• Paragraph 18: The human rights of women and of the girl-child are an inalienable, integral and indivisible part of universal human rights. The full and equal participation of women in political, civil, economic, social and cultural life, at the national, regional and international levels, and the eradication of all forms of discrimination on grounds of sex are priority objectives of the international community...(READ Paragraphs 18 & 24 )

The Fourth World Conference on Women (FWCW) Beijing , China (1995) Beijing tied together many of the evolutions of the previous world conferences, and attempted to make health rights of women more enforceble and realizable.

• Paragraph 9: The objective of the Platform for Action, which is in full conformity with the purposes and principles of the Charter of the United Nations and international law, is the empowerment of all women. The full realization of all human rights and fundamental freedoms of all women is essential for the empowerment of women...
  (READ Paragraphs 9, 11 & 97)

continue to... Forms of Human Rights Work