We have strong technical guidance on healthy diets from WHO in one hand, and an international legal framework which obliges evidence-based State action on health in the other. Together they can reduce diet-related NCDs and promote global health. What are we waiting for?

By David Patterson

Health, Law and Development Consultants

 dpatterson@healthlawdc.com

Disclosure: From 2009 – 2018 David Patterson was senior legal expert, health, for the International Development Law Organization (IDLO). He is now a consultant with IDLO and other health, law and development organizations

Why Some Global Health Experts Didn’t Sign the Call on the United Nations for Human Rights Guidelines on Healthy Diets and Sustainable Food Systems

 

In October 2019 I and three colleagues (Dr Kent Buse, Prof Roger Magnussen and Prof Brigit Toebes) wrote a short article in the British Medical Journal.

We called on the Director-General of the World Health Organization, Dr Tedros, and the United Nations High Commissioner for Human Rights, Dr Bachelet, to lead the development of guidelines for States on human rights, healthy diets, and sustainable food systems. We also provided possible areas of focus, a proposed process, and draft principles to guide the development of the guidelines.

We shared the draft call with a wide range of experts in global health, nutrition, governance, law and human rights for comment and endorsement. There was strong interest, and within a couple of months 180 experts had signed on.

However, some people also told us that they did not agree with our approach and hence could not sign the call. Below are some of the reasons they gave.

First of all, we need to acknowledge that part of the global health community remains sceptical about the United Nations human rights framework. They question how international human rights law can be effective when there is no ‘international police force.’ In the same breath they mention the WTO and international trade law as an example of an international system ‘with teeth.’

Human rights lawyers and advocates know that the answers lie in the multiple ways in which international human rights law influences the behaviour of States and non-state actors.

Most important is the normative role, and here the detailed guidance from the human rights treaty committees is crucial. Pressure to comply then comes from multiple mechanisms, including the periodic reviews of State action under each treaty, and the State-led Universal Periodic Review process. In serious cases, State actions are scrutinized by UN Special Rapporteurs, the UN Human Rights Council, the UN Security Council and the UN General Assembly. Political processes can lead to sanctions and other international pressure. A good example is the October 2019 joint statement by 23 countries in the Human Rights Council on China’s mistreatment of Muslims in Xinjiang province. Without the norms established by human rights treaties, such criticism and action would likely be far weaker.

Human rights norms also inform positive political processes. For example, the UN General Assembly’s 2016 resolution on child, early and forced marriage is firmly grounded in international human rights law.

The international human rights legal framework also influences national judicial decisions and serves as a basis and model for national laws. In some countries international human rights obligations are incorporated directly into national law.

In July 2019, Brigit, Kent, Roger and I suggested in an article in Obesity Reviews that the value of the human rights-based approach to health had been demonstrated over several decades by its application to HIV and AIDS. This included the drafting by a diverse group of experts in 1996 of the United Nations ‘International Guidelines on HIV/AIDS and Human Rights.’

The HIV Guidelines review the application of the UN human rights treaties to the global HIV epidemic. They proved powerful in mobilizing State and non-state actors to strengthen action on HIV, notably on access to treatment and in addressing discrimination and counter-productive criminal sanctions against people living with HIV and other marginalized and vulnerable groups.

Some health experts maintain that the human rights-based approach to HIV was successful because the HIV epidemic affects mostly younger, socially and politically active populations. They question whether applying the same approach to noncommunicable diseases would be as successful. However, they miss the point that a wide range of stakeholders – civil society organizations, including faith communities and labour organizations, women’s and children’s rights organizations, public health advocates, UN system agencies and the UN General Assembly – have all embraced the human rights-based approach to HIV.

The human rights-based approach can mobilize broad community action on NCDs and other global health challenges. For example, in South Africa, the AIDS Law Project evolved into Section 27, a broad health rights organization. Section 27 and the Rural Doctors Association of Southern Africa now partner to support the Rural Health Advocacy Project.

Some global health experts questioned whether the draft call was sufficiently rigorous in its references to the private sector. However, the human rights-based approach requires States to hold the private sector accountable, and in turn makes States accountable for doing so. We referenced the UN Guiding Principles on Business and Human Rights which make this clear. We had to keep the call short – it was not intended to cover all areas of possible action. These will be explored through the development of the guidelines themselves.

There is one further, perhaps uncomfortable, reason why some global health folks don’t want to admit that international human rights law has a central role in global health. It is about hegemony and control of the global health discourse, and the global health dollar. Yet global health challenges will never be solved with bio-medical approaches alone. Conversely, the human rights-based approach is essentially democratic. It demands that affected communities are part of the solution to global health problems, not just the occasional lucky beneficiaries of laboratory-driven largesse.

Recall the 2014 case of the journalist in Sierra Leone imprisoned for questioning his government’s handling of the Ebola response, as reported by the Committee to Protect Journalists. It is a reminder that even the best technical solutions, such as a vaccine against Ebola, will never reach all those in need without strong human rights protections.

We have strong technical guidance on healthy diets from WHO in one hand, and an international legal framework which obliges evidence-based State action on health in the other. Together they can reduce diet-related NCDs and promote global health. What are we waiting for?