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Who monitors human rights in health?
Posted on February 5, 2016	by Meg Davis, Ph.D.
The launch last year of the new Sustainable Development Goals was followed, right before the holidays, by a flurry of new global health strategies from WHO, UNAIDS, UNDP and the Global Fund to Fight AIDS, TB and Malaria.
Human rights objectives featured in each strategy. So how will we know if we reach these goals?
Here's a quick, quirky overview of who at the UN currently monitors what, when it comes to human rights and health.
The Committee on Economic, Social and Cultural Rights – The mother of them all: this committee, or treaty body, reviews the performance of 164 countries in upholding the right to health and other economic and social rights. The treaty body's standards are set out in the International Covenant on Economic, Social and Cultural Rights. The Covenant (calling it that always makes me feel like it's something Charlton Heston would wave at roaring crowds) was ratified by the UN General Assembly in 1966, and article 12 upholds the right to the highest attainable standard of health. General Comment 14 explains what this means in practice. This map shows which 164 countries have ratified the covenant.
When the parliament of a country ratifies the covenant, that country commits to upholding the treaty and to reporting to the UN every four years on progress. Since governments almost always report only good news, the Committee also accepts shadow reports from civil society and uses these to ask questions of government representatives. Finally it issues concluding observations: noting progress, concerns, and recommendations for action by the country. The process is described in more detail here and you can even watch it online. All the concluding observations are online, too, making it a cinch to monitor progress.
The system has all the elements of a strong human rights system:
• Based on a law
• Includes input from government AND civil society
• Routine and systematized, with periodic reporting
• Makes recommendations for action
• Transparent
So why don't the UN agencies with health-related human rights commitments just use this system to monitor progress?
There are several answers. The easiest one is that the long list of issues and countries reviewed by the CESCR means the committee can't go into real depth on any given human rights issue. CESCR monitors all the rights in the Covenant, including labor rights, education, social security and more (and last year, they added the right to sanitation). It's a happy day when HIV, TB or hepatitis get a passing mention.
For this and other reasons, UNAIDS, UNDP and WHO have created their own monitoring systems. And when it comes to health-related human rights monitoring, there are a few:
Global Commission on HIV and the Law – UNDP launched the Global Commission on HIV and the Law in 2010. Based on research and a series of regional dialogues, the Global Commission produced a summary report in 2012, HIV and the Law: Risks, Rights and Health. The report is an encyclopedic overview with global recommendations. The Global Commission website also has working papers on specific issues, which are a helpful resource. (Just on HIV, though – not TB, hepatitis, Ebola, or other epidemics.)
However, this is not an ongoing system for monitoring and ensuring accountability by specific countries. The Commission disbanded after the report launched. To follow up in individual countries, UNDP created a different tool…
The Legal Environment Assessment – The Legal Environment Assessment (LEA) tool was created by UNDP, based on the work of the Global Commission, to follow up on countries' commitments in the 2011 Political Declaration on HIV and AIDS that they would review and strengthen laws that affect the HIV response.
The idea is that countries use the Legal Environment Assessment tool to assess HIV-relevant laws and policies against the best-practice recommendations from the Global Commission. As part of the LEA, the government must convene national stakeholders, including civil society, to review the laws and reach consensus on what actions should be taken, such as law reforms. Happily, UNDP has now begun posting the resulting national Legal Environment Assessment reports on line – Jamaica, DR Congo, Seychelles, Malawi, Pakistan, Malaysia, Myanmar, China, and Indonesia. (It would be interesting to compare the recommendations in these reports against whatever the CESCR has recommended to the same country on HIV, just to check if they are aligned.)
Like the Global Commission, the LEA is focused on HIV – there's not much on hepatitis, TB, malaria, Ebola or other health issues. The LEA also only touches lightly on gender. So to do a gender analysis of the HIV response, we have a totally separate UNAIDS Gender Assessment Tool. The Gender Assessment uses a process almost exactly like the LEA: reviews policies and data, convenes national stakeholders to review the data, and make recommendations. It also now looks at TB as well as HIV. (Full disclosure – I work sometimes as a consultant for UNAIDS on related projects).
The LEA and Gender Assessment reports provide a detailed, in-depth analysis of the legal or gender environment. Both are projects that take 6-9 months to complete, and produce lengthy and detailed reports. Unfortunately, they cover overlapping areas, making it unlikely that countries will do both; the few that have tried to do both complained about the workload.
There's another down side: in a government-led analysis of anything related to human rights, there's always a risk that more critical views on sensitive issues will get swallowed up in the "national consensus" endorsed by the state. That's where the LEA process is weaker than the CESCR treaty body review process, which is more neutral.
But at least the LEA includes consultation with civil society…Which brings us to the NCPIs.
UNAIDS National Commitments and Policies Index (NCPI) – I once mentioned the NCPI to a former UN Special Rapporteur on the Right to Health, and he responded, "You mean the British National Car Parks?"
I have to admit that despite my love and admiration for friends and mentors who worked hard to develop it, the NCPI is my least favorite human rights tool in global health. It is part of regular reporting to UNAIDS that UN member states are asked to do about their national HIV response. States are asked to submit regular reports on HIV data, and to complete this survey questionnaire every two years on laws and policies that relate to HIV.
The survey is answered by government officials — they can invite civil society to help, but they don't have to. The results are published on the UNAIDS website – here are the NCPIs for 2012.
Setting aside the fact that the answers are all on a PDF, making a search for data a royal pain in the index, there are other problems: Many of the questions are yes-or-no. Nothing is cited to a source, so it can't be fact-checked. And then there's the problem that after searing budget cuts, UNAIDS just does not have the human power to check everything claimed in these long surveys.
Thus, we get occasional howlers: like Uganda answering a question about which populations are targeted for HIV services by listing, basically, everyone in the country who is not a gay man. Or China's report, which waxes on about its wonderful laws on non-discrimination, without mentioning that when great groups like Yirenping attempt to file lawsuits on HIV-related discrimination, they get raided and publicly denounced.
My favorite NCPI, though, is the one filed by North Korea, which efficiently saved itself time on the long questionnaire by answering the first question,
1. Has the country developed a national multisectoral strategy to respond to HIV?
with a simple
That's because there is no HIV in North Korea, although the government still claims to have discovered a cure. (Good news, Bill Maher – Kim Jong-un is available for booking.)
UNAIDS is currently in the process of reviewing the NCPI and health-related human rights reporting and making improvements in 2016, as are many of the above agencies. — Stay tuned.
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2 Responses to Who monitors human rights in health?
Alexandrina says:
Dear Meg, while NCPI has many shortcomings, it does have a part B filled by civil society. It's still the Govt focal point for GARPR that submits it though, robbing it of any real power to dissent…
megontheinternet says:
Thanks for the note – and great points!