Jurisprudence of human rights treaty bodies
(Draft Article 21)

Accronyms:
CESCR: Committee on Economic, Social and Cultural Rights
HRC (ICCPR): Human Rights Committee
CERD: Committee on the Elimination of Racial Discrimination
CEDAW: Committee on the Elimination of All Forms of Discrimination against Women
CAT: Committee Against Torture
CRC: Committee on the Rights of the Child

Related to Draft Article 21

See also CEDAW, General Recommendation No. 24 (Women and health), para. 13: The duty of States parties to ensure, on a basis of equality of men and women, access to health care services, information and education implies an obligation to respect, protect and fulfil women’s rights to health care. States parties have the responsibility to ensure that legislation and executive action and policy comply with these three obligations. They must also put in place a system that ensures effective judicial action. Failure to do so will constitute a violation of article 12.

Related to Draft Article 21, paragraph (a)

CESCR, General Comment no. 5 (Persons with disabilities), para. 34: According to the Standard Rules, "States should ensure that persons with disabilities, particularly infants and children, are provided with the same level of medical care within the same system as other members of society". The right to physical and mental health also implies the right to have access to, and to benefit from, those medical and social services - including orthopaedic devices - which enable persons with disabilities to become independent, prevent further disabilities and support their social integration. Similarly, such persons should be provided with rehabilitation services which would enable them "to reach and sustain their optimum level of independence and functioning". All such services should be provided in such a way that the persons concerned are able to maintain full respect for their rights and dignity.

CEDAW, General Recommendation No. 24 (Women and health), para. 25: Women with disabilities, of all ages, often have difficulty with physical access to health services. Women with mental disabilities are particularly vulnerable, while there is limited understanding, in general, of the broad range of risks to mental health to which women are disproportionately susceptible as a result of gender discrimination, violence, poverty, armed conflict, dislocation and other forms of social deprivation. States parties should take appropriate measures to ensure that health services are sensitive to the needs of women with disabilities and are respectful of their human rights and dignity.

Related to Draft Article 21, paragraph (c)

CESCR, General Comment no. 14 (The right to the highest attainable standard of health), para. 12: …Health facilities, goods and services have to be accessible to everyone without discrimination, within the jurisdiction of the State party. Accessibility has four overlapping dimensions: (…) Physical accessibility: health facilities, goods and services must be within safe physical reach for all sections of the population, especially vulnerable or marginalized groups, such as ethnic minorities and indigenous populations, women, children, adolescents, older persons, persons with disabilities and persons with HIV/AIDS. Accessibility also implies that medical services and underlying determinants of health, such as safe and potable water and adequate sanitation facilities, are within safe physical reach, including in rural areas. Accessibility further includes adequate access to buildings for persons with disabilities.

CEDAW, General Recommendation No. 24 (Women and health), para. 21: States parties should report on measures taken to eliminate barriers that women face in access to health care services and what measures they have taken to ensure women timely and affordable access to such services. Barriers include requirements or conditions that prejudice women’s access, such as high fees for health care services, the requirement for preliminary authorization by spouse, parent or hospital authorities, distance from health facilities and the absence of convenient and affordable public transport.

Related to Draft Article 21, paragraph (j)

CESCR, General Comment no. 14 (The right to the highest attainable standard of health), para. 8: …The right to health contains both freedoms and entitlements. The freedoms include the right to control one's health and body, including sexual and reproductive freedom, and the right to be free from interference, such as the right to be free from torture, non-consensual medical treatment and experimentation.

CEDAW, General Recommendation No. 24 (Women and health), para. 20: Women have the right to be fully informed, by properly trained personnel, of their options in agreeing to treatment or research, including likely benefits and potential adverse effects of proposed procedures and available alternatives.

CEDAW, General Recommendation No. 24 (Women and health), para. 22: …Acceptable services are those that are delivered in a way that ensures that a woman gives her fully informed consent, respects her dignity, guarantees her confidentiality and is sensitive to her needs and perspectives. States parties should not permit forms of coercion, such as non consensual sterilization, mandatory testing for sexually transmitted diseases or mandatory pregnancy testing as a condition of employment that violate women’s rights to informed consent and dignity.

Related to Draft Article 21, paragraph (m)

CESCR, General Comment no. 14 (The right to the highest attainable standard of health), para. 54: The formulation and implementation of national health strategies and plans of action should respect, inter alia, the principles of non-discrimination and people's participation. In particular, the right of individuals and groups to participate in decision-making processes, which may affect their development, must be an integral component of any policy, programme or strategy developed to discharge governmental obligations under article 12. Promoting health must involve effective community action in setting priorities, making decisions, planning, implementing and evaluating strategies to achieve better health. Effective provision of health services can only be assured if people's participation is secured by States.

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