Interactive Dialogue with the Special Rapporteur on the Right of Everyone to the Enjoyment of the Highest Attainable Standard of Physical and Mental Health (23rd and 24th of June)
47th Session of the Human Rights Council, 21 June to 15th July 2021.
ITEM 3 – Promotion and protection of all human rights civil, political, economic, social and cultural rights, including the right to development.
By: Alicia Louise and Joy El Hajaly
Executive Summary
During the 5th and 7th meeting of the 47th Session of the Human Rights Council, the Special Rapporteur on the Right of Everyone to the Highest Attainable Standard of Physical and Mental Health, Dr. Tlaleng Mofokeng, presented her report during an interactive dialogue. The SR is responsible for addressing health-related human rights issues, with a special focus on vulnerable and/or marginalised groups. In particular, a gender perspective must be applied by the SR, and she must address the requirements of children for the realisation of the right to health. The SR is guided by the relevant international human rights provisions, especially Article 12 of the International Covenant of Economic, Social and Cultural Rights (ICESCR). Dr. Mofokeng assumed her position at the Council’s forty-fourth session, in July 2020.
Report of the Special Rapporteur
In her report, A/HRC/47/28, the SR made clear her focus on substantive equality, anti-racism, gender equality and intersectionality, concerning the realisation of the right to health. Key priorities during the SR’s tenure are;
- dissecting coloniality and racism, and its implications for the realisation of the right to health of certain groups of individuals worldwide;
- the dismantling of legislation and policies that affect how individuals enjoy their sexual and reproductive health rights and mainstreaming of a gender perspective instead;
- protection of health-rights in the COVID-19 pandemic, and access to related treatments and healthcare;
- health equity in relation to other socio-economic determinants of health and its dependence on the enjoyment of other rights, such as, the right to life, non-discrimination and non-persecution, equality, privacy, freedoms of information, association, assembly and movement;
- the prevention of gender-based violence, exploitation and femicide, with special concern placed on eradicating the discrimination faced by women with disabilities, migrant women and lesbian, bisexual and transgender women when receiving medical and legal assistance;
- the prevention of sexuality-based violence, independently of gender-based violence;
- the de-criminalisation of consensual sex between adolescents of similar ages, with policies that align with related human rights standards;
- the investigation of conservative morality in relation to sex work, and the protection and promotion of the right-to-health for sex workers;
- digital interventions and tele-health that can improve the quality of life for all, which requires bridging the digital divide in the global south and other developing countries;
- the health impacts of living in areas with high levels of air, water and land pollution as a consequence of industrial activities and high-density residencies which lead to poor ventilation and disproportionately higher rates of chronic illness and;
- the eradication of non-communicable diseases and reproductive cancers, such as cervical cancer.
In relation to the COVID-19 pandemic, the SR states that “Combating pandemics effectively requires stronger commitment from States to scientific international cooperation, as national solutions are insufficient.”
In this light, the SR has reminded States that, “health policies and procurement procedures that are isolationist in nature are inconsistent with international human rights standards.”. Another concern has been raised, and it deals with countries who have an advantage in financial resources, and who have been signing deals for preferential access to COVID-19 vaccines, which might leave other, less advantageous countries, behind.
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“The benefit of industry and private companies cannot be prioritized over the rights to life and health of billions, in particular with such far-reaching consequences”
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Interactive Dialogue with the Special Rapporteur
Opening Statements of the Special Rapporteur
The SR offered her condolences to the many who have passed during the COVID-19 crisis and praised the resiliency of countries, and their frontline workers, in responding to the pandemic. The SR first addressed her country visit to Fiji, followed by an outline of the strategic priorities and vision contained in her report.
The SR attests to the strong political will in Fiji to realise the right to healthcare for all. Notable improvements are the modernisation of outpatient and hospital care, greater investment in infrastructure, increased doctors’ salaries and the forming of public-private partnerships in the health sector. The SR reminds the Fijian representative that mental healthcare should adhere to the requirements of the Convention on the Rights of Persons with Disabilities, and investment in community-based rehabilitation, fully addressing care and support needs, must be guaranteed for all. The SR appreciates efforts made to increase national capacity for maternal health - as unsafe abortion remains Fiji’s primary cause of mortality and morbidity in women, followed by breast and cervical cancer. The SR remains concerned that violence against women, girls and other persons is high, and notes that attempts to de-criminalise sex work in Fiji have been unavailing thus far. The SR encouraged Fiji to continue progressively working towards this. Lastly, the SR states that more effort is required to combat diabetes and relevant treatments, as a staggering 1 in 3 Fijians are sufferers.
Introducing her main report, the SR discussed the mode of thought surrounding her thematic priorities. She stated that in order to address persistent global inequality and promote accountability, she will adopt a substantive equality approach, through an intersectional framework, addressing how multiple oppressions and discrimination intersect and impede the right to health. Moreover, she mentioned that health equity will only be achieved if barriers to access to health services, goods and facilities are eliminated. Moreover, she addressed the urgent need for States to address corruption and poor management of resources in the health sector to this end. The SR spoke to the insidiousness of coloniality and its presence in social orders and knowledge systems today. She illustrated how racial hierarchies have enabled a social discrimination that has outlived formal colonialism to this day. As such, anti-racism, anti-coloniality, and non-discrimination principles will be applied to her approach. She argues that systematic racism reinforces other systems of oppression, which manifest in differential access to healthcare.
Concerning the current pandemic, the SR relayed the importance of taking stock of its profound impacts on health systems and intensified visibility of global inequalities, wherein countries with less developed healthcare services have seen a greater burden of COVID-19 victims. The SR states that wealthier countries have gained preferential access to vaccine rollouts, and as such, echoes calls for vaccine equity, urging all stakeholders in global health to support temporary waivers of intellectual property for low and middle-income countries to access scientific knowledge. In this vein, the report dedicates thought to innovation and digital technologies, and how access to telehealth must be widespread and equitable, particularly for sexual and reproductive health rights. The SR declares that technology should not perpetuate sexism, racism, or ableism, or gender identity and sexual discrimination.
Dr. Mofokeng’s report also addressed the issue of violence and how it must be addressed proactively and comprehensively, focusing on the right of individuals and families, discrimination and violence, and the right to sexual and reproductive health. The SR assures Members that her next report will focus extensively on these rights.
Participating Countries’ Statements
Fiji: The representative thanked the SR for her visit and confirmed they are progressively addressing the issues raised in the SR’s report.
Paraguay, also on behalf of Argentina, Brazil, Chile, Colombia, Costa Rica, Ecuador, Guatemala, Mexico, Panama, Peru, and Uruguay: Considering that violence against women is a global epidemic itself, and the closure of schools has led to the confinement of children in the home or community, the representative asks for the SR to make the physical and mental health of children a priority in her mandate. In addition, the representative for Costa Rica asked the SR to provide information on digital resources that can be used to ensure non-discrimination in healthcare delivery.
Estonia, also on behalf of Denmark, Norway, Sweden, Finland, Latvia and Lithuania: The representative asks the SR if she foresees any collaboration with the previous SR, especially in connection to sexual and reproductive health rights.
European Union: The representative accords with the SR that a human rights-based approach to the pandemic is crucial, and asked the SR how she plans to partner with international co-operations working on health, such as the World Health Organisation (WHO), to this end.
Brazil also on behalf of a group of countries: The representative anticipates the SR’s recommendations on how to ensure access to medicines and vaccines, diagnostics and therapeutics as an essential component to the human right to health. They expressed an interest in collaborating with the SR on the issue of racism and systematic discrimination, as an obstacle to realising the right to health for all.
Indonesia: The representative shared that the adoption of telemedicine has significantly addressed some of the structural challenges that Indonesians face, such as living in a dispersed and remote geographical area and having access to a limited number of health and care workers.
Portugal: The representative prompts the SR to devote adequate attention to mental health care which is half of the mandate. They reminded Members that COVID-19 brought additional mental health challenges to people worldwide. Moreover, the representative informed the SR that Portugal will present a Resolution with a core group of countries in the context of HIV and Aids during this 47th Session. They asked the SR to outline the main elements at stake in this context; for instance, the empowerment of key populations, prevention services and combatting stigma.
Sovereign Order of Malta: The representative expressed concern that a focus on substantive equality may contradict the nature of diversity itself. With regard to sexual and reproductive health, the representative asked if the SR will incorporate relational autonomy and family-oriented approaches. They further enquired if the SR will consider recognising the right to conscience and religion of healthcare providers and organisations on ethical issues relating to sexual and reproductive health, and education. They also asked if the SR could outline the necessary conditions to promote the physical and mental health of individuals and relational wellbeing of parents and children, which are manifest in part through healthy sexual and reproductive behaviours.
China and the Republic of Korea: Both representatives complained of the unilateral decision taken by the Japanese government to release contaminated water from the Fukushima nuclear plant into the ocean, despite opposition at home and abroad. They claim that possible safe disposal methods were not attempted first, and neither neighbouring countries or the international community were fully consulted. They call on the Japan to act responsibly by disclosing information about proposed actions that will impact the health of human beings and the environment, with transparency and open dialogue between nearby States. Meanwhile, the representative of Korea shared that the Korean government has developed healthcare technology to help achieve universal health coverage, while placing more emphasis on addressing privacy issues.
Senegal: The representative shared their nation’s efforts to more effectively address sexual violence in Senegal; a law was enacted in 2020 which fully criminalises rape and paedophilia, and a national programme is underway for the full eradication of FGM.
Bahrain: The representative asked the SR for her views on ensuring the right to health in the context of tackling the issue of racial discrimination, and the pandemic.
Iraq: The representative expressed concern that previous SRs use terminology that does not enjoy consensus.
Armenia: The representative claims that Azerbaijan continues to discriminate against the right of people of Nagorno-Karabo to receive international humanitarian aid. They believe this is a relentless policy of ethnic cleansing of this people group, which last autumn saw a devastating aggression from Azerbaijan. The representative reports that Azerbaijan has deliberately targeted civilian hospitals, including child and maternity wards and uses ammunition and incendiary weapons against civilians. They state that ambulances, cars and medical personnel have also been attacked, while the people of Nagorno-Karobo continue to suffer from numerous unexploded ordinances of war. Of concern to the representative are the Armenian prisoners of war and captives who have died in Azerbaijani custody due to torture, lack of medical aid and unbearable conditions of detention.
Togo: The representative stressed that genuine health equity can only be guaranteed for poor households if the costs of accessing healthcare services are reduced. They asked the SR if she foresees assisting developing countries to make progress in improving access to universal healthcare coverage.
Syrian Arab Republic, Iran (Islamic Republic of), Venezuela, Cuba and the Organisation for Defending Victims of Violence: Representatives remind the SR that while it is important to guarantee the right to health, this right has been used to threaten reprisals on certain countries through the imposition of unlawful unilateral coercive measures (UCM), in spite of the pandemic. They questioned if the SR understood the impact of UCMs on the enjoyment of the right to health to be a colonial measure and enquire whether she will measure the phenomenon. The representative for Venezuela said sanctioned countries face scarcity of medicines, medical supplies and vaccines, and exacerbates the gap between the rich and poor. All five representatives request that sanctions are lifted or eased, including those in Cuba, Sudan and Yemen, to preserve human life. The representative for Iran agrees with the SR that access to safe drinking water is a vital step to be taken in the realisation of the right to health for all. The representative of Cuba shared progress in its local biotech industry, which has seen 85% of products to treat COVID-19 being manufactured domestically, despite the 60-year blockade imposed by the US. The representative also shared that Cuba have supplied medical specialists to 40 countries during the pandemic.
India: The representative urges States not to neglect routine immunisation programmes as well as the treatment of non-communicable diseases.
Morocco: The representative shared legislative progress in improving the social determinants of health for its population, and migrants and asylum seekers, through the adoption of a framework law for family benefits, pensions and compensation for loss of employment. The representative suggested developing a database with the WHO to pool offers of assistance and the needs identified.
USA: The representative announced that the USA will be providing 500 million vaccine doses to the Gavi alliance from August 2021, and has already begun donating 80 million more doses from their domestic supply. They also report contributing US$2 billion to COVAX; more than any other country. The representative sought the SR’s suggestions for the best method of expanding the support for global health-security activities to tackle such threats in future.
Nepal: The representative appeals to the international community for immediate support in accessing a greater supply of life-saving medical equipment and vaccines for their population.
Malaysia: The representative used the occasion to highlight their present nationwide campaign to help under-screened and under-privileged populations fight cervical cancer.
Azerbaijan: The representative exercised their right to reply, denying Armenia’s claim that they block(ed) humanitarian aid and such organisations. Rather, the representative reports that Azerbaijan became victim of another act of aggression by Armenia in September 2020, where densely populated areas were attacked with intensive fire, and numerous war crimes and crimes against humanity were committed. They further claim that landmines planted by Armenia in Azerbaijan’s territory are the deadliest threat to life, as well as the physical and mental health of our citizens. The representative calls for the international community to place appropriate pressure on Armenia to remove the landmines.
Bangladesh, Sri Lanka, Pakistan, the Maldives and Timor-Leste: Representatives expressed serious concern about vaccine nationalism and hoarding by some advanced countries, contrary to the principle of the right to health for all. The representative for the Maldives stated the importance of removing barriers to accessing affordable medical products, including vaccines and therapeutics for all. Representatives asked the SR what measures the Council can implement to advance the fair and equitable access to vaccines, which are a global public good.
The representative for Bangladesh further underscored that the digital divide between developed and developing countries is impeding access to advanced digital health technologies. They call for robust international co-operation to bridge this gap and achieve SDG 3, which seeks to ensure health and well-being for all, at every stage of life. They agree with the SR’s analysis that systemic racism can lead to severe health disparities, as evidenced by the fact that the racially persecuted Rohingya’s in Myanmar, have been disproportionately affected by the pandemic. In light of this, the representative further enquires how the right to health can be realised for the Rohingya.
Belgium: The representative asked the SR how she will fortify the participation of persons experiencing discrimination on several grounds during her mandate.
Georgia: The representative reported grave human rights violations in the Russian occupied territories of Georgia, claiming infringement of the rights to health and freedom of movement, through the closure of ‘so-called’ crossing points amid the pandemic.
U.K. and Northern Ireland: The representative enquired how Member States can best support the SR’s work on sexual and reproduction health, and the rights of adolescents?
UN Women: The representative expressed deep frustration that women are the majority of persons facing multiple levels of discrimination, yet are the minority in global health leadership positions. They assert that the lack of meaningful participation lowers the impact of health policies and women’s ability to claim their rights to health services, particularly in the context of the global pandemic, and inhibits the review of health sector plans and systems of delivery and accountability that would ensure gender responsiveness and freedom from discrimination. The representative asked the SR to recommend positive actions to increase women’s decision-making power in the exercise of their right to health.
Djibouti: The representative asked what plans the SR has to address the multiple and intersectional forms of discrimination faced by women and girls in receipt of primary healthcare.
Russian Federation: The representative raised a point of order, accusing the SR of ultra vires conduct by encompassing the plight of persons of African descent, the right to water and sanitation, food, nutrition, work and education in her mandate. Instead, they believe these matters fall under other Council special procedures. The representative doesn’t agree that healthcare provisions should be inclusive, nor do they support the decriminalisation of sexual activity between adolescents of similar age.
Ukraine: The representative used the opportunity to highlight the daily hardship of thousands of Ukrainian children suffering PTSD, as a result of living in areas affected by the conflict instigated by the Russian Federation. However, they expressed appreciation for UNICEF’s psychological training of professionals to help children. The representative also asked the SR to address the limited access to essential opioid substitution therapy in the temporarily occupied territories of Ukraine in Crimea, where poor medical supervision results in persons relapsing or dying prematurely.
International Development Law Organisation: The representative advocates for a rule of law-based approach to significantly improve the social determinants of health and achieve the right to health for all.
Panama: The representative implores the SR to consider the matter of human rights and menstrual health, as well as the relationship between zoonotic diseases and the environment.
Cambodia: The representative asked the SR to elaborate on best practice for the delivery of quality mental healthcare in the context of COVID-19 in developing economies. They also request the possible dissemination of resources for States seeking to improve the quality of mental health services.
Bulgaria: The representative questioned how the SR would encourage the unification of human rights-based approaches into medical emergency response efforts, so that domestic post COVID-19 recovery programmes are more inclusive and effective for persons in vulnerable circumstances.
Responses of the Special Rapporteur
Addressing representatives from Estonia and the EU, the SR stated that her office sought co-operation and collaboration from several stakeholders; sending 134 communications to 61 States, 10 private entities and 6 communications to other actors including the Secretary General and the European Commission, between 1st March 2020 and 25th February 2021.
Turning to Malta, the SR reiterated that the elimination of racism and colonialism in practice, will indeed require addressing the historical and current prejudice faced by groups of individuals; not the mere comparison of formal treatments between people with similar health needs. She further explained that looking through the lens of substantive equality and intersectionality enables accountability from healthcare professionals, for the realisation of the right to health for all. The SR also emphasised the integral part community, national and international participation plays in these decision-making processes. The SR further asserted that the right to health contains freedoms and entitlements including control of one’s health and the right to be free from non-consensual medical intervention and experimentation.
The SR does acknowledge that ages of consent for medical, surgical and mental healthcare vary among countries. However, she reminds States of its obligations outlined in the Committee on Economic, Social and Cultural Rights’ General Comment no. 14 to ensure: third parties do not hinder people’s access to health-related information and services, and ensure the availability of trained medical professionals and providers who can perform the full range of sexual and reproductive health services. The SR further expects healthcare workers to be guided by ethical and medical standards in the execution of their duties. Therefore, the SR sees no conflict between practising medicine ethically and one’s own spirituality and conscience. The SR believes the practice of medicine is an act of human rights defence, and so urges all Member States to integrate human rights law and standards into the undergraduate curriculum training for healthcare professionals.
Acknowledging Bahrain, the SR will build on the work of the SR on Contemporary Forms of Racism, Racial Discrimination, Xenophobia and Related Intolerance, as well as, the Committee on the Elimination of Racial Discrimination to identify actionable recommendations for addressing the root causes of racism and how it manifests in public health systems, especially at the national level. The SR envisages that employing transparency, trust, remedies and reparation and the use of intersectional frameworks, will ensure the realisation of the right to health for all.
Responding to Costa Rica, Senegal and Togo, the SR assures States that she will work closely with UN agencies to promote universal healthcare coverage, which includes preventative, curative and palliative care for prisoners or detainees, minorities, asylum seekers and ‘illegal’ immigrants.
Turning to Venezuela, Cuba and Syria, the SR confirmed personal awareness of the impact of sanctions and how it makes States dependent on humanitarian aid, impeding economic recovery and the implementation of national response plans, resulting in breaches of existing regional and bi-lateral co-operation. The SR affirmed the importance of ending UCM and sanctions, and referenced the report to the UNGA in 2020, where the SR’s predecessor, Mr Pūras, concluded that we must all embrace human rights fully.
Responding to the representative of Portugal, the SR advised that a sustainable response to the pandemic requires governments to remove punitive legislation and policies, including but not limited to, the widespread criminalisation of HIV transmission, third party notification requirements and mandatory testing, which prevent affected populations accessing health services and information. Moreover, the SR stressed that pre-exposure prophylaxis must be made available for anyone who needs it.
Participating NGOs’ Statements
UNICEF: The representative calls on Member States and global partners to confront root causes of humiliating and violent inequalities that deny the rights of women, children and adolescents to thrive. They further petition States to increase efforts to achieve universal health coverage by 2030, and make bold investment in primary healthcare for all women, children and adolescents to access services where they live.
Global Initiative for Economic, Social and Cultural Rights: The representative expressed concern that the latest report from the WHO’s Technical Advisory Group appears to promote commercialisation of healthcare, which puts lives at risk and would appreciate the SR’s attention on the privatization of healthcare.
Action Canada for Population and Development (also on behalf of Sexual Rights Initiative): The representative deplores the systemic underfunding of the UN Human Rights System, including the cancellation of general debates in June and call for the reinstatement of general debates, with the option of civil society participation through video statements.
Al Mezan Centre For Human Rights: The representative reports that Palestinians in occupied areas are being denied vaccines, and in the Gaza Strip severe movement restrictions imposed by Israel prevent people accessing medical care. The representative requests the SR investigate Israeli attacks on health facilities, including on Gaza’s only COVID-19 testing lab.
Swedish Federation of Lesbian, Gay, Bisexual and Transgender Rights: The representative expressed deep concern for the lack of trans-competent healthcare, growth in transphobic bias and financially inaccessible gender affirming surgeries.
IDCP Consortium: The representative requests for the SR to include in upcoming reports and State visits, assessments of how drug policies impact the realisation of the right to health of substance users, paying particular attention to women, gender non-conforming persons, native and racial and ethnic minorities. They call the SR to stand in solidarity with the overwhelming majority in the UN system who are advocating for the decriminalisation of substances. They hope this will reduce the fear of incarceration which deters individuals from engaging with health services and harm reduction and treatment services, increasing their susceptibility to contract (and spread) blood-borne diseases, and overdose deaths.
Minority Rights Group: The representative stressed the importance of addressing misinformation about the COVID-19 vaccine and mistrust in health systems for minority and indigenous people groups.
Associazione Comunità Papa Giovanni XXIII (APG23): The representative expressed concern that the right to life of the unborn child is not being considered as part of the SR’s mandate.
Concluding Remarks of the Special Rapporteur:
The SR confirmed that she will continue to examine and monitor the progress of the key priorities presented today in future reports. Dr. Mofokeng urges States to adopt inclusive gender sensitive and non-discriminatory sexual and reproductive health policies for all adolescents and the population in general; recognising that unequal access for adolescents is discrimination. Finally, Dr. Mofokeng expressed her expectation that States will stand in solidarity and ensure the equitable distribution of essential medicines, including the COVID-19 vaccine. Not as an act of philanthropy or charity, but in basic recognition of the universal human right to the best attainable standard of physical and mental healthcare for all persons.
Position of Geneva International Centre for Justice
Geneva International Centre for Justice (GICJ) urges the international community, and particularly more developed countries, to immediately support developing countries by provision of much-needed medical supplies and vaccines. In accordance with the SR’s report, we encourage the prioritisation of the protection of health-rights for historically and presently persecuted groups during the COVID-19 pandemic, and improved access to related healthcare and treatments for all.
Moreover, the GICJ remains concerned for the diminished enjoyment of the right to health for internally displaced persons and civilians in armed conflict. Women and girls are vulnerable to sexual violence and inadequate maternal healthcare. We urge countries who have not fully criminalised rape and paedophilia in legislation to do so, in addition to the full eradication of FGM which continues to be widespread.
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“The enjoyment of the highest attainable standard of health is one of the fundamental rights of every human being without distinction of race, religion, political belief, economic or social condition”
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(Source of Quote: World Health Organization Dec 10, 2017).
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