Thursday, January 15, 2009

International organizations and mandate issues: controversy over the WHO's Right to Health "fact sheet"

One of the key roles of "global administrative bodies" - one of the clearest ways in which, we argue, they are exercising identifiably public power - is in the contribution that they make to normative development, most often through the drafting and promulgation of "soft" law standards that harden either through becoming accepted practice over time, or by being relied upon as authoritative by a different treaty regimes or tribunals. Another method - perhaps less common, but certainly not unimportant - is when certain international organizations issue putatively authoritative interpretations (for example, the General Comments of the old Human Rights Committee) or statements of what current international law on a given right or subject actually is.

In June 2008, the World Health Organization, in conjunction with the Office for the High Commission for Human Rights, published its "Fact Sheet 31" on the Right to Health, which purports

... to shed light on the right to health in international human rights law as it currently stands, amidst the plethora of initiatives and proposals as to what the right to health may or should be. Consequently, it does not purport to provide an exhaustive list of relevant issues or toidentify specific standards in relation to them.

Emphatically not, then, to be read as a hopeful expression of de lege ferenda, the document in question is the official position of the WHO and the OHCHR on the lex lata of the human right to health, binding on all States as a matter of general international law. This, of course, is suggested strongly by the title - somewhat odd, in my view - of "fact sheet" for an overtly normative endeavour. The document makes a number of strikingly strong claims for what the current status and content of this right actually currently is:

The right to health contains entitlements. These entitlements include:

- The right to a system of health protection providing equality of opportunity for everyone to enjoy the highest attainable level of health;
- The right to prevention, treatment and control of diseases;
- Access to essential medicines;
- Maternal, child and reproductive health;
- Equal and timely access to basic health services;
- The provision of health-related education and information;
- Participation of the population in health-related decision-making at the national and community levels.

(Eagle-eyed readers will, of course, have spotted the "distributed administration" GAL provision in the above excerpt - the suggested requirement that governments allow public participation in health-related decision-making domestically...).

A further important indicator of the public nature of the action taken here by the WHO/OHCHR is in their view of the role of the treaty monitoring bodies established to oversee the implementation of the various international human rights treaties. Consider the following passage:

...the treaty bodies that monitor the International Covenant on Economic, Social and Cultural Rights, the Convention on the Elimination of All Forms of Discrimination against Women and the Convention on the Rights of the Child have adopted general comments or general recommendations on the right to health and health-related issues. These provide an authoritative and detailed interpretation of the provisions found in the treaties.

This claim is particularly significant in this context because many of the assertions of the Fact Sheet are based to a large degree on General Comment 14 of the Committee on Economic, Social and Cultural Rights. The WHO/OHCHR have thus, with this document, sought to issue a putatively authoritative account of the current status and content of the - notoriously hard to pin down - international human right to health.

From the Global Governance Watch site we learn that - perhaps unsurprisingly, given its continuing reluctance to become a party to the ICESCR, one of the three major pillars of the so-called International Bill of Rights - the US has recently (October 15, 2008) issued a set of official Observations on Fact Sheet 31, and called for the document to be rescinded. Despite what Gobal Governance Watch suggests, however, the US Observations are not explicitly formulated as an allegation that the WHO has acted ultra vires, beyond its mandate in purporting to issue an authoritative statement of "fact" on the right to health (incidentally, here is an earlier critical piece at the same site criticising the Fact sheet on precisely those grounds - not surprising, then, that they chose to read it in this manner); perhaps to do so would have risked suggesting that the document is of greater potential significance than the US at present wants to acknowledge. It contents itself, therefore, with the accusation that the fact sheet is misleading and wrong, with the occasional hint at mala fides on the part of the WHO/OHCHR:

3. As a general matter, the United States observes that the "Fact Sheet" is, in spite of its name, replete with unwarranted legal conclusions and opinions. The United States considers it misleading to sryle such a document as a "fact sheet", which conveys an impression to readers that the document contains factual information not reasonably open to doubt. Instead, the document contains sweeping and far reaching conclusions relating to the "right to health" and the associated obligations of States.
16. General comments and other documents issued by treaty monitoring bodies express the opinions of individuals acting in their expert capacities; such documents are not the results of deliberations among States. While the views of treaty monitoring bodies are entitled to respect and should be considered carefully by States Parties, they do not create legal obligations or "requirements".
18. Furthermore, the pronouncements of treaty monitoring bodies are directed only to the
States Parties of the relevant treaty. The authors of the "fact sheet", perhaps inadvertently, repeatedly characterize the statements of the treaty bodies as applying to "States", regardless of whether a particular State has ratified the relevant treaty.

Although the claim that WHP/OHCHR have acted beyond their mandates is not explicitly formulated (the claim here rather seems to be "they have got it wrong"), it does seem to be implied throughout the US observations - that the WHO/OHCHR have no right to issue a document presenting controversial claims as settled fact (although it is certainly worth noting that the US does not assert that the Organizations have no right to issue such documents in general). The key question from a GAL perspective is, of course, What can the US do to ensure that these Organizations are held accountable for remaining within their mandates? To whom can their grievance be addressed? Thus far, all we know is that they have requested that the fact sheet be rescinded. I had a look on the websites of both the WHO and the OHCHR, but there was nothing I could find on either that shed light on what, if any, procedures were currently underway. I was unable to find the Fact Sheet on the WHO site (although I did find an earlier, shorter version from August 2007, helpfully filed under "T" for "The Right to Health"). Fact Sheet 31 is, however, available at the OHCHR's site, along with the interesting information that Fact Sheets Nos. 1, 8 and 15 are "no longer issued". It will be interesting to see whether No. 31 is similarly disappeared at some point in the next few months...


Anonymous said...

Another example, not precisly with the right to health, could be found in this investigations of the Interamerican Comission on Human Rights and OAS, regarding the Social, Economic, & Cultural Rights and the resolution approved by these organs on this issues.

In a document relased awhile ago, on sept. 2007, the Interamerican Comission on Human Rights and OAS develop a research on the principles on why is it important to count with a Judicial effective Protection when it comes to this rights and how the states parties to the interamerican human rights system could reform their national legal system and what is the current practice on those system regarding these rights.

Neverthless, this reports and along with the OHCHR reveals what you just said "they are exercising identifiably public power is in the contribution that they make to normative development, most often through the drafting and promulgation of "soft" law standards that harden either through becoming accepted practice over time, or by being relied upon as authoritative by a different treaty regimes or tribunal".

Per se might not be GAL, but however, analyzing the structure of the Inetramerican System and the Role of the Comission, it is easy to identify its administrative rol on the supervision and constant devolpment on norms or resolution regardign the implemantion of the convention.

Euan MacDonald said...

Thanks Amaury, this is interesting. It seems to me that you're right that the Commission exercises a public function within the Inter-American system. This, as you say, may not make it GAL, but it does make it "administration" - i.e., the activity that administrative law seeks to regulate. Identifying public function in effect helps us identify what are the subjects and objects of GAL.

Of course, the Inter-American context raises a further interesting question - to what extent can a regional body be said to be an example of an (emerging) "global" administrative law. Taken in isolation, the term "global" applied to the inter-American system (or to the European one) seems to be thoroughly inappropriate; yet there is also a real sense in which these institutions and their activities are precisely the kinds of players that GAL must account for.

It is for this reason that I have suggested thinking of the emergence of GAL as the dialectic interplay between two co-ordinates - the domestic (where national and local administrative actors are bound by global norms or regimes), and the "extranational" - which include all trans-, supra- and international administrative bodies, including those that do not have a discernibly public formal character. (For a brief outline of this idea, see