American Journal of Law & Medicine

Making the World Health Organization work: a legal framework for universal access to the conditions for health.

Improving global health conditions has been one of the most important and difficult challenges for the world community. Despite concerted efforts by international organizations, like the World Health Organization, great disparities in health conditions remain between developed and developing countries, as well as within those countries. The World Health Organization has achieved some success through its Health for All strategy; however, it can and should encourage member nations to enact national and international laws to protect and promote the health status of their populations. A comparison to the lawmaking efforts in other areas by international organizations indicates that WHO may have the authority and the means to institutionalize efforts to improve global health conditions.

I. INTRODUCTION

Reforming national health systems to guarantee universal access to primary health care is an extraordinary global health challenge. Gross inequities in the distribution of health care resources and dramatic disparities in health standards exist both between and within many rich and poor nations. Access to primary health care services, although particularly problematic in developing nations, is also of concern in some developed countries, including the United States. Current global health challenges, including the pandemic of the human immunodeficiency virus ("HIV")/acquired immunodeficiency syndrome ("AIDS") and the international resurgence of cholera, tuberculosis, and malaria, have heightened public interest in basic health services by exposing and exacerbating the pre-existing weaknesses of many national health systems.

Despite growing public recognition of the importance of universal access to health care, little scholarly attention has been paid to the role that international organizations, like the World Health Organization ("WHO"), can play in encouraging and assisting national development of basic health services. WHO is the primary multilateral organization charged with addressing national and international disparities in health standards and health services through advancement of the international right to health. The international right to health represents an international legal obligation of nations to promote and protect the health of their populations progressively. WHO's role as international advocate of the right to health and member nations' corresponding legal duties can serve as a powerful command to nations to guarantee universal access to basic health services and resources for their populations.

WHO's principal undertaking to encourage member nations to comply with their legal obligation to implement the right to health progressively is the organization's "Health for All" strategy. In 1977, the World Health Assembly ("WHA")(1) initiated Health for All, declaring that WHO's and member nations' main social target for the coming decades "should be the attainment by all the citizens of the world by the year 2000 of a level of health that will permit them to lead a socially and economically productive life . . . ."(2)

WHO's basic needs-oriented design for global health has had a remarkable impact on the structure of health service delivery in some countries. WHO has been unable, however, to institutionalize the right to health in most member nations. Since WHO initiated the Health for All strategy, disparities in health standards between rich and poor nations have increased and health spending in most developing nations has declined.

WHO has had only limited success in stimulating national implementation of universal health service programs, in part because the organization has paid insufficient attention to the role that legislation can play in the Health for All strategy. WHO's advancement of national and international public health law and supervisory institutions is critical to furthering the realization of the right to health. Encouraging countries to develop specific, binding legal obligations with respect to the right to health, and publicizing their compliance and noncompliance with those obligations, can powerfully influence states to rethink priorities and redirect national resources to national health care sectors.

The ability of an international organization to effect national decision-making that impinges widely on economic and social life and necessitates economic redistribution at the national and international levels is, of course, inherently limited by a world order dominated by independent nations.(3) Notwithstanding this political circumstance, international organizations, including WHO, have a degree of institutional independence to promote and guide governmental action. This Article compares WHO's activities to the efforts of other international organizations, including the United Nations Environment Programme and the International Maritime Organization, which have achieved some success in serving as platforms for the creation of national and international law.

This comparison reveals that, among other things, the absence of regulatory and supervisory efforts by WHO is not solely the reflection of the policies and purposes of the organization's dominant coalitions or key financial members. Rather, WHO's traditional reluctance to utilize law and legal institutions to facilitate its health strategies is largely attributable to the internal dynamics and politics of the organization itself. In particular, this unwillingness stems, in large part, from the organizational culture established by the conservative medical professional community that dominates the institution. WHO's ability to develop a legal framework for Health for All, therefore, is critically dependent on its ability to transform its conservative organizational culture.

The changing world order, kindled by the end of the cold war, has raised many observers' hopes that the United Nations and its specialized agencies may now serve as effective forums for addressing global problems and advancing human rights. The time is ripe to reconsider how WHO can revise existing strategies, through the employment of a legal framework, to encourage and assist national development of basic health care services. As the international authority on world health matters, WHO can play an indispensable, albeit limited, role in influencing national health policies and promoting universal access to the basic conditions for health.

This Article examines how WHO can influence nations to ensure universal access to health services by advancing the right to health. Part II of this Article discusses the world health situation, the evolution of the right to health in United Nations legal materials, and the scope of member nations' legal obligations to protect that right. Part III examines WHO's responsibility to implement the right to health and the successes and limitations of the Health for All strategy. Part IV, which compares WHO's activities to those of other international organizations, addresses the contributions that WHO can make by encouraging expanded use of national and international law and institutions. Part V analyzes the organizational dynamics of WHO, while Part VI looks at the potential effectiveness of a legal framework for Health for All. Overall, this Article will endeavor to show that WHO's use of legislation can contribute to the practical implementation of Health for All and, thus, further the national development of basic health care services worldwide.

II. INTERNATIONAL HEALTH AND THE DUTY OF WHO

A. THE WORLD HEALTH SITUATION

Over the last three decades, WHO has assisted nations in making substantial progress in the improvement of the world health situation.(4) For example, since 1978, life expectancy has increased and infant, child, and maternal mortality have declined worldwide.(5) Global successes in increasing longevity, however, obscure the profound and appalling disparities in health standards and severe inequities in health services' allocation that exist among and within nations.(6)

As is well known, the gap in health standards between rich and poor nations is increasing.(7) For instance, between 1985 and 1990, estimated life expectancy at birth was 73.4 years in developed regions, but only 59.7 years in less developed ones.(8) High infant and child (below the age of five) mortality rates are the main factors contributing to low life expectancy rates in developing nations. Although child mortality rates in developing nations fell by half between 1960 and 1989,(9) the relative gap between rich and poor states in the deaths of children has been increasing. That is, "while child mortality was four times as high in the developing countries as in the developed countries in 1950-1955, it became seven times as high in 1980-1985."(10) Infant mortality in developing countries is still more than five times that in industrialized countries.(11) Further, in developing countries, 40% of deaths are estimated to occur among children under the age of fifteen, ten times the proportion in developed countries.(12) Of the forty-nine million people worldwide who died of all causes in 1985, 14.6 million were children under the age of five in developing countries.(13)

The structural causes of these dramatic infant and child mortality rates are the circumstances of poverty endemic to developing nations. An estimated one-third of the 126 million children born each year in developing nations are malnourished at birth and are, therefore, susceptible to illness and disease.(14) The main causes of death among children in developing countries are infectious and parasitic diseases, including diarrheal diseases, measles, whooping cough, diphtheria, and other acute respiratory diseases.(15) An estimated 4.6 million children die each year as a result of drinking water that contains parasites, viruses, and bacteria.(16)

Although poverty is the primary structural cause of premature death globally, the principal contributing factor is the insufficiency of funding for basic health services. The health sector is one of the most underfunded areas of national financing.(17) Globally, government spending on health averages less than ten dollars per year per person.(18) The result of this insufficient funding is that, worldwide, a growing number of people are dying from preventable diseases and treatable conditions, including diarrheal diseases, measles, and pneumonia.(19) Many of the premature deaths in developing and developed states could be prevented by shifting a small amount of national resources to the primary health care sector. For example, early diagnosis of and appropriate antibiotics for pneumonia, costing less than $1.00, could save the majority of the four million young children who succumb to the disease each year.(20)

High maternal mortality rates in developing nations are also a critical international health concern contributing to the catastrophic levels of infant and child mortality. Five hundred thousand women, 99% of them in developing nations, die each year from complications during pregnancy and delivery.(21) As with infant and child mortality, the primary determinants influencing the alarming number of maternal deaths in developing nations are the conditions of poverty and the lack of basic health services. Further in addition to inadequate prenatal care in developing nations, the lack of family planning services in many of these countries also contributes to high maternal mortality rates.(22) Insufficient family planning services lead to deaths resulting from, among other factors, crudely induced abortions.(23) In fact, unsafe abortion is a major cause of maternal mortality in poor nations, killing about 200,000 of the 500,000 women who die each year.(24)

The inadequacy of medical research into illnesses common to developing nations also contributes to the disparity in health conditions between developed and developing nations. The nature of morbidity varies enormously between developing and developed countries. For example, infectious and parasitic diseases, the most common cause of death in developing nations, kill only an estimated 4.6% in developed states.(25) Although these infectious diseases, whether viral, bacterial or parasitic, can best be combatted by the development of new vaccines,(26) developing countries still lag behind industrial nations in health research. In fact, developed countries spend nearly 100 times more than developing countries on health research per capita.(27)

The issue of inequitable distribution of health care resources is not, however, simply one that exists between rich and poor nations; it also exists within them. Inequitable and inefficient health systems, while a distinct problem in developing countries, are also of concern to some developed nations, particularly the former states of the Soviet Union and Eastern Europe, the United States, and South Africa.(28) In the United States alone, more than thirty-four million people are not covered by any health insurance and millions more are inadequately insured.(29)

The situation is even more alarming in developing nations. Developing countries have typically modelled their health care delivery systems on the high-technology, hospital-based services characteristic of developed nations.(30) Although these services provide access for the privileged, the majority of the population in these developing nations do not enjoy the basic conditions for good health or medical care.(31) In Asia, for example, only two-thirds of the population has any access to health services and clean water.(32) In sub-Saharan Africa, more than half of the population has no access to basic health services.(33) In Latin America, the disparity is exacerbated by the social security systems of many countries, which leave those outside the formal work sector, typically the poorest, with few or no health benefits.(34)

The inability of countries to thwart current global health challenges, including the brutal international resurgence of some of the world's oldest diseases, such as cholera, malaria, and tuberculosis, as well as new health concerns, particularly the HIV/AIDS pandemic, has highlighted the importance of access to basic health services. For example, cholera made a startling comeback in the beginning of 1991, when an outbreak in Peru rapidly swept throughout Latin America, afflicting 300,000 in the region by the end of the year.(35) New strains of malaria resistant to widely used drugs have also surfaced recently in some of the 103 nations in which the disease still occurs.(36) Malaria is now a major cause of death of children in much of Africa, killing an estimated one million African children each year.(37)

Tuberculosis has also made a violent reappearance in rich and poor countries. Worldwide, tuberculosis is now the single largest cause of death from an infectious agent, killing three million a year and infecting eight million more.(38) As in the case of malaria, new drug-resistant strains of tuberculosis have surfaced.(39) The resurgence of tuberculosis is also associated with the HIV/AIDS pandemic, as those infected with HIV are particularly vulnerable to disease.(40) WHO estimates that approximately thirteen million people had become infected with HIV by September 1992.(41)

HIV/AIDS and these other global health challenges have raised public awareness of the inequities and inefficiencies of national public health systems. The mounting HIV/AIDS crisis has, in particular, exposed the pre-existing limitations of national public health programs and brought the issue of universal access to health services to the forefront of public concern. In most nations, the demands for resources and infrastructure for AIDS prevention and care have rapidly overwhelmed national health sectors.(42)

Because cholera is so easily preventable and treatable,(43) the inability of many nations to halt its spread has also brought the pre-existing weakness of national public health systems to an embarrassing light. According to WHO, in 1991, 120 million people in Latin America were at risk of contracting the disease(44) because of poor sanitation, deterioration in maintenance of water systems,(45) and contaminated food.(46) The cholera epidemic has been described as the "visible symbol of the defeat of [Latin American] public health systems."(47)

These global health challenges have not only exposed the inadequacy of national public health systems but also evidenced the increasing interdependence of world health. Indigenous public health issues can no longer be regarded as purely a matter of domestic concern. Increasingly, public health challenges are recognized as transcending national boundaries.(48) Therefore, these contemporary health challenges are international in origin and have vividly demonstrated that universal access to basic health care services is a global concern that necessitates collaborative, multilateral action.

B. THE RIGHT TO HEALTH

The right to health represents an international legal obligation of states to promote and protect the health of their populations. The principal legal basis for the right to health is found in the core instrument of international human rights law, the International Bill of Human Rights.(49)

Article 25.1 of the Universal Declaration of Human Rights proclaims that "[e]veryone has the right to a standard of living adequate for the health and well-being of himself and his family, including food, clothing, housing and medical care and necessary social services. . . ."(50) The Universal Declaration does not guarantee a right to health per se, but a right to health incident to the right to an adequate standard of living. To evidence the legal obligation necessary to advance the international right to health, the United Nations created two treaties, the International Covenant on Civil and Political Rights(51) and the International Covenant on Economic, Social and Cultural Rights.(52) According to Professor Louis Henkin, these treaties "legislate essentially what the Universal Declaration had declared."(53)

The Universal Declaration provides the normative basis for the most significant United Nations instrument guaranteeing a right to health, the Covenant. Article 12.1 of the Covenant provides for "the right of everyone to the enjoyment of the highest attainable standard of physical and mental health."(54) The Covenant also provides, inter alia, that each nation, to the maximum extent of its available resources, "undertakes to take steps" to achieve "the highest attainable standards of physicl and mental health" for all individuals, without discrimination.(55)

Article 12.2 of the Covenant identifies measures to be undertaken by member nations "to achieve the full realization of this right," including those necessary for:

(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;

(d) The creation of conditions which would assure to all medical service and medical attention in the event of sickness.(56)

Although the Covenant does not specify the precise scope of each member nation's obligations, the broad content of the norm is relatively clear. The Covenant recognizes that the right to health is an essential element of human dignity. Article 12 reflects a fundamental concept of equality and non-discrimination in the promotion of each individual's health.

The right to health does not, however, constitute an entitlement to individual good health.(57) It is also not synonymous with the right to health care; indeed, health care is only a component of Article 12.(58) Further, the right to health does not necessarily encompass free access to health services, for the Covenant mandates only non-discriminatory provision of services to those who cannot provide for themselves. The right to health cannot be isolated conceptually or practically from other human rights articulated in the International Bill of Human Rights, including life,(59) food,(60) education,(61) and social security.(62) Individual health is basic to the enjoyment of all human rights, a pre-condition for participation in social, political, and economic life. Finally, the right to health is a dynamic concept; as society, technology, and the means to improve the human condition evolve, so does the scope of a nation's obligations pursuant to Article 12.

Although the Covenant imposes international obligations on states to aid other nations in the realization of the right to health,(63) the primary duty to guarantee this right lies with member nations to their own populations. According to Professor Henkin, apart from the provision of technical and economic assistance to other nations pursuant to Article 2 of the Covenant, "the international acceptance of human rights is seen in the context of the state system, with obligations only upon an individual's own society."(64)

The scope of the obligation to implement the right to health may, however, be expanding. Emerging international health challenges, including HIV/AIDS,(65) suggest that the world community cannot isolate the health concerns of one nation from those of other nations, conceptually or practically.(66) A nation's obligation to provide the conditions of health to its domestic population may entail some duty of multilateral assistance to the health secotors of other countries.(67)

C. THE WORLD HEALTH ORGANIZATION

WHO,(68) established in 1946,(69) is the primary multilateral organization charged with implementing the right to health. WHO's unique responsibility to implement the international right to health is based primarily on responsibilities assigned by relevant international instruments. Although WHO is not the only international agency involved in health matters,(70) its premier role is based on, among other things, the organization's Constitution, the United Nations Charter, and the Covenant. With six regional offices, more than 180 member nations,(71) and an annual budget exceeding eight hundred million dollars,(72) WHO is the largest international health organization and one of the largest specialized agencies of the United Nations.

Promoting the right to health is an explicit part of WHO's constitutional mandate.(73) The preamble to WHO's Constitution, the first expression of an international right to health, declares that "[t]he enjoyment of the highest attainable standard of health is one of the fundamental rights of every human being without distinction of race, religion, political belief, economic or social condition."(74) Article 1 of the Constitution further proclaims that the "attainment by all peoples of the highest possible level of health" is the fundamental objective of the organization.(75) Health is defined in the preamble to the Constitution as "a state of complete physical, mental and social well-being and not merely the absence of disease or infirmity."(76)

The foundation of WHO's unique responsibility to implement the right to health is the organization's affiliation with the United Nations system as a specialized agency. The structure of the relationship between the United Nations and WHO is grounded in the United Nations Charter(77) and, in particular, those sections that describe the objectives of the United Nations.(78) Article 55 of the Charter describes the goals that the United Nations has pledged to promote among its members: (a) higher standards of living, full employment, and conditions of economic and social progress and development; (b) solutions of international economic, social, health, and related problems; and international cultural and educational co-operation ....(79)

As the specialized agency with the primary constitutional directive to act as the "directing and co-ordinating authority on international health work,"(80) WHO has the cardinal responsibility to implement the aims of the Charter with respect to health.

The Convenant also "allocates a specific function to [WHO] at every stage of the implementation procedures. Allocation of such functions is entirely in accord with [WHO's] constitutional objectives ...."(81) The Covenant requires nations to submit reports on adopted measures and progress made in advancing all the rights recognized under the Covenant.(82) Pursuant to this reporting procedure, the specialized agencies have specific tasks within their areas of expertise, including reviewing the state reports and monitoring the progress achieved in national compliance with the terms of the Covenant.(83) Therefore, WHO is the specialized agency charged with realizing the aims of the Covenant with respect to health by supervising, assisting, and encouraging member nations to fulfill their international legal responsibility to guarantee the right to health to their populations.(84)

III. WHO'S HEALTH FOR ALL CAMPAIGN

A. DEVELOPMENT OF STRATEGY

WHO's principal undertaking to implement the right to health has been its Health for All strategy. In 1977, WHA(85) specified that the main social target of member nations and WHO in the coming decades "should be the attainment by all citizens of the world by the year 2000 of a level of health that will permit them to lead a socially and economically productive life . …

Log in to your account to read this article – and millions more.