Anniversaries are useful occasions for taking stock. The fiftieth anniversary of the adoption of the two implementing covenants of the Universal Declaration of Human Rights--the International Covenant on Civil and Political Rights (ICCPR) and the International Covenant on Economic, Social and Cultural Rights (ICESCR), both adopted by the United Nations General Assembly in 1966--is one such occasion. Whereas the Universal Declaration was aspirational, a statement of collective intent to build a better world after the devastation wreaked by "barbarous acts [that] ... outraged the conscience of mankind", (1) the Covenants were intended to serve as tools to promote the implementation of the rights they articulated.
This ambitious, transformative goal explains the delay in moving from the Declaration to the Covenants: eighteen years were needed to garner sufficient agreement to proceed and to devise a framework that catered to the bipolar world order that had taken shape. Instead of a unitary implementing document following the structure of the Declaration, two instruments were needed, reflecting the split between a liberal, capitalist block focused on upholding civil and political rights, and a socialist block committed to the primacy of realizing social and economic rights. This implementing architecture developed unevenly, with much greater investment dedicated to building capacity to enforce civil and political rights than to advancing economic and social rights.
Treaties and Rights
It took decades to evolve effective strategies for implementing the International Covenant on Economic, Social and Cultural Rights to improve the performance of States parties. Indeed, the extent to which ratification of the Covenant (or of any other human rights instrument) impinges on rights realization remains a controversial topic. Some suggest that States only ratify human rights conventions to court the approval of other States rather than because they intend to implement their provisions; they point to the widespread violation of human rights obligations by States parties as evidence. Others argue that States ratify human rights treaties when they transition from authoritarian to democratic rule to lock in rights obligations as a guarantee against future backsliding; they point to rapid treaty ratification by South Africa and former socialist States in Eastern Europe as cases in point.
A recent systematic, empirical study by Beth A. Simmons on the impact of human rights treaty ratification on subsequent state conduct paints a more complex and nuanced picture. The study suggests that treaty ratification does in some but not all cases clearly correlate with improved human rights implementation. The Convention on the Rights of the Child (CRC), for example, the most rapidly and widely ratified United Nations human rights treaty, sets out state obligations in respect of the recruitment of child soldiers and the promotion of health, prohibiting the former and mandating the latter. How effective has it been? According to the study, CRC had a statistically significant impact on the rate of recruitment of child soldiers but not on the rate of anti-measles vaccinations. (2) Treaty ratification thus cannot be assumed to produce rights enforcement; whether it does or not depends on implementation strategies and on a complex set of other, interconnected factors.
THE RIGHT TO HEALTH
The right to health is a cardinal social and economic right. According to article 12 of ICESCR, "The States Parties to the present Covenant recognize the right of everyone to the enjoyment of the highest attainable standard of physical and mental health".
A few preliminary observations are in order. First, like most other human rights obligations, this right applies to "everyone", without regard to legal or other status. Undocumented migrants, prisoners and homeless populations are all covered. Second, like other social and economic rights, the right to health is one of progressive realization. Ratifying States must "take steps", "by all appropriate means, including particularly the adoption of legislative measures", to achieve the many aspects of this right progressively, "to the maximum of its available resources". (3)
These phrases are complex terms, susceptible to a range of interpretations. At minimum, they commit States to monitoring the progress of their policies and taking steps to improve their service provision. (4) ICESCR takes note of the fact that implementation of social and economic rights may presuppose complex and sophisticated delivery systems, endowed with skilled personnel; extensive infrastructure; in the case of health, specialist products including pharmaceutical drugs; and operating and investigative machinery. Such systems cannot be built by legislative fiat alone, but require cumulative investment, expertise, research and finance. Accordingly, the core obligation is to progressively improve on the service provided in specified areas, expanding its reach, deepening its quality and strengthening its impact in proportion to the State's own fiscal and technical capabilities. In the case of the right to health, ICESCR identifies both physical...