10.31.16

The Disabilities Rights Convention’s 7 Lessons for the FCGH

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The proposal for a global treaty on the right to health, a Framework Convention on Global Health (FCGH), may reach another milestone in the next two days, with its most prominent appearance yet. For the first time, WHO will hold a forum for the six candidates for next May’s election to be its Director-General. Any WHO member state may ask candidates questions during the November 1-2 forum, which will be streamed live on WHO’s website and available for viewing afterwards. One question may be on the FCGH.

The candidates forum comes on the heels of a commentary in the Lancet Global Health — with a top representative of the health ministry of South Africa, Precious Matsoso, the Director-General of the National Department of Health among the authors — calling for the next WHO Director-General to make the right to health their top priority, with the FCGH as the “centerpiece” of that endeavor. The commentary captures how the FCGH could respond to major failings in national and global governance for health, which collectively bear much responsibility for the overwhelming level of health inequalities that persist today. The FCGH could bring us nearer a world of substantive health equality.

The 2003 WHO Framework Convention on Tobacco Control is often cited as a precedent for the FCGH, and with good reason, as the only other health treaty of its kind. The Paris Agreement on climate change has also been pointed to as a possible model, with its innovative form, including a mix of binding and non-binding aspects, iteratively strengthening nationally established targets within the context of a shared target (“holding the increase in the global average temperature to well below 2°C…and pursuing efforts to limit the temperature increase to 1.5 °C”), and a strong, mandatory accountability framework.

But in a way, another treaty might be an even more pertinent precedent, the Convention on the Rights of Persons with Disabilities (CRPD). Here are seven ways:

  1. Participation in developing the treaty

As FCGH advocates have recognized, one way in which the CRPD must serve as a model for the FCGH is in the participatory process by which it was developed. People with disabilities and their organizations were full participants in the working group that drafted the disabilities rights treaty. The United Nations even established a voluntary fund (para. 14) to facilitate their participation. Other civil society organizations and national human rights institutions participated too. The FCGH should replicate what was an unprecedented level of civil society involvement in developing a UN treaty – including ensuring involvement of the marginalized communities whom the treaty would most affect.

  1. An uncompromising, transformative commitment to equality

The CRPD is widely recognized for its absolute commitment to equality and its progressive nature. It insists upon the measures required to enable people with disabilities to be thoroughly included in all aspects of society, to make their own choices, and to be full participants in the decisions that affect their lives. Contrary to tragically common practice and law, it guarantees the right to live in the communities (rather than institutions) and recognizes the legal capacity of people with disabilities.

The right to health may be interpreted in a more or less transformative manner. How far do extraterritorial obligations extend, as well as obligations to integrate the right to health into other sectors? In what ways must the right be realized immediately, and what aspects are subject to progressive realization? How should the maximum available resources requirement be interpreted? What level of health services must be afforded all people? Perhaps most importantly, what participatory and accountability processes does the right to health demand that would empower people who traditionally hold the least power in society?

Like the CRPD, the FCGH should be progressive in how it answers these questions. These answers should be based on an abiding commitment to the human rights demand of substantive equality, the longstanding commitment of governments to the universal observance of all human rights, the recognition that human rights are their first responsibility, and the recognition that to meet its full potential, the right to health needs to transform traditional power dynamics.

  1. Specific human rights requirements that unveil what has been required all along

As indicated in the previous point, the CPRD is progressive, breaking new ground such as in unambiguously establishing the universal human right of people with disabilities to live in the community. Yet the entire treaty is grounded in long-standing human rights law and the bedrock human rights principle of non-discrimination. The CRPD is an elaboration on that principle, with even its most formative provisions firmly grounded in existing human rights law and principles.

The FCGH, too, would combine transformation with continuity. Specific mechanisms, standards, and processes may be new – what will enable the transformation – yet all would be based in the right to health, part of international law for decades. The FCGH would uncover what may have been required by the right to health all along, and is increasingly found in recent elaborations of this and related rights, such as the Maastricht Principles on Extraterritorial Obligations and the UN Technical Guidance on human rights and maternal mortality.

  1. Equality throughout

As noted, the inviolable principle of equality runs throughout the CRPD. It should similarly permeate all aspects of the FCGH, constantly ensuring the ability of even the most marginalized populations to participate, to have their concerns heeded, for the government to be accountable to them. At the same time, the FCGH will need to respond to the spectrum of inequality, addressing the many dimensions of inequality and reaching throughout the socioeconomic gradient.

  1. Multi-sectoral

The CRPD is inherently multi-sectoral, for its basic command is non-discrimination against and inclusion of people with disabilities in all walks of life. If the FCGH is to meet its potential in advancing the right to health, it cannot be limited to the health sector. In part, this is because the right to health incorporates such underlying determinants as safe water and nutritious food. Beyond these, the social determinants of health extend to virtually all sectors, which may either contribute to good or ill health, advance or impede the right to health. The FCGH will need to promulgate the standards, processes, and mechanisms, such as right to health impact assessments, that ensure that actions in no sector, whether through domestic or international actions, violates a state’s obligation to respect and protect the right to health. And actions in all sectors should, to the maximum extent possible, contribute to further advancing this right. Health needs to be the responsibility of all sectors.

  1. Empowering function

In its specific standards that went beyond the practice of many countries, its requirements on the full participation of people with disabilities, and in the very process of welcoming people with disabilities into the treaty drafting process, the CRPD has had an important empowering function for people with disabilities. It even had an important role in the creation of an international disabilities rights movement that cut across disabilities.

The FCGH should have a similar effect, perhaps particularly through its standards and mechanisms on participation and accountability. It should provide added tools to right to health advocates, and enhance legal standards on everyone’s right to participate in health-related decisions and on ensuring accountability. And the process towards developing the treaty should itself help empower civil society and marginalized communities. It will force issues into the open, surface ground level realities, open opportunities to engage government officials, and catalyze global networking opportunities.

  1. Movement needed for implementation

The disabilities rights movement is vital to the successful implementation of the CRPD, particularly empowered organizations of people with disabilities at national level. And that movement has grown. The International Disability Alliance, for example is comprised of global and regional alliances that themselves collectively include more than 1,100 organizations of people with disabilities and their families. The full implementation of the CRPD is at the core of its work.

The successful implementation of the FCGH will similarly require communities and civil society organizations in every country to understand the FCGH and their rights under the treaty, and to advocate for their rights, including in regional and global alliances. One key to enabling this to happen is to better engage national and grassroots civil society organizations, and the communities they work with, at the beginning of the FCGH process.

Perhaps the next two days, and the election of the next WHO Director-General more generally, will bring us one step closer to moving that process into full throttle. Then, to borrow from the conclusion of the Lancet Global Health commentary, the “new Director-General [should] seize the potential of the FCGH, incorporating it into a bold vision for WHO. The next Director-General should launch a historic effort to align national and global governance for health with human rights, bringing the world closer to global health with justice.”

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The views reflected in this blog are those of the individual authors and do not necessarily represent those of the O’Neill Institute for National and Global Health Law or Georgetown University. This blog is solely informational in nature, and not intended as a substitute for competent legal advice from a licensed and retained attorney in your state or country. See the full disclaimer and terms of use.