How Might Rights-Based Approaches Enhance Accountability?

1. How Might Rights-Based Approaches Enhance Accountability? Alicia Ely Yamin, JD MPH Harvard University Chr. Michelsen Institute (Norway)

2. Under International law, donor countries assume human rights obligations: • directly; • as host countries for transnational corporations; and • as members of international organizations, such as the World Bank, International Monetary Fund and the World Trade Organization “States parties which are members of international financial institutions, notably the International Monetary Fund, the World Bank, and regional development banks, should pay greater attention to the protection of the right to health in influencing the lending policies, credit agreements and international measures of these institutions.” (CESCR General Comment 14, para 39)

3. Article 12(1) of ICESCR sets out a right to the “highest attainable standard of physical and mental health.” Article 12(2) sets out steps States should take: a)The provision for the reduction of the stillbirth-rate and of infant mortality and for the healthy development of the child; b)The improvement of all aspects of environmental and industrial hygiene; c)The prevention, treatment and control of epidemic, endemic, occupational and other diseases; and d)The creation of conditions which would assure to all medical service and medical attention in the event of sickness.

4. Tripartite Obligations • Respect: refrain from direct interference • Protect from interference by others, including non-state actors • Fulfill: take proactive measures to realize progressively (including Available, Accessible, Acceptable and Quality care)

5. Circle of Accountability for Obligations to Fulfill the Right to Health • Plan of Action • Budget • Monitoring • Remedies

6. Plan of Action • “To adopt and implement a national public health strategy and plan of action, on the basis of epidemiological evidence, addressing the health concerns of the whole population; the strategy and plan of action shall be devised, and periodically reviewed, on the basis of a participatory and transparent process; they shall include methods, such as right to health indicators and benchmarks, by which progress can be closely monitored; the process by which the strategy and plan of action are devised, as well as their content, shall give particular attention to all vulnerable or marginalized groups.” (CESCR General Comment 14, Para 43(f)) • Importance of public deliberation and justification

7. Budgets • “Maximum Extent of Available Resources” (ICESCR, article 2) • Leakage, procurement practices, lack of capacity and oversight • Transparency and Participation in Design and Implementation • Who is money being spent on?

8. Monitoring “Violations through acts of omission include the failure to take appropriate steps towards the full realization of everyone's right to the enjoyment of the highest attainable standard of physical and mental health …” (CESCR General Comment 14, para 49) Importance of Appropriate Indicators, Disaggregation

9. Remedies • Enforcement of Existing Laws and Policies (e.g. Viceconte; Paulina v. Mexico) • Reforming Discriminatory or Arbitrary Laws and Policies (e.g. TAC; T 760/08) Questions about Waves of Individual Cases.

10. Conclusions • Health systems as core social institutions