Assessing the impact of parallel reporting on
the right of everyone to the enjoyment of the highest attainable
standard of physical and mental health
Report by Desislava Stoitchkova
Commissioned by the International federation of Health and Human rights Organisations (IFHHRO)
2004General Introduction
The purpose of this review study has been two-fold: to assess the impact of parallel reporting - on health issues in particular - on national and international level, and to suggest possible improvements to the health reporting process so as to optimise its efficacy potential. The subsequent exposition focuses on four UN bodies, which deal with the right to health and NGO reports related thereto: the Committee on the Rights of the Child (CRC); the Committee on the Elimination of All Forms of Discrimination against Women (CEDAW); the Committee on Economic, Social and Cultural Rights (CESCR) and the Special Rapporteur on the Right to Health (SRRH). Although other UN bodies may also deal with health issues, the aforementioned ones were selected for their most extensive involvement in the monitoring of states’ compliance with treaty obligations to ensure the realisation of the right to health.
The substantive analysis, on which the conclusions of this study are based, has been accomplished through the compilation and review of a wide array of views and documents. These include accounts of NGOs, involved in the parallel reporting process in the past four years before the UN bodies mentioned above; interviews with Committees’ members and with the staff of the Special Rapporteur on the Right to Health; reviews of NGO parallel reports and Committees’ corresponding concluding observations; and digests of Committees’ practice and NGOs’ work and experiences on part of academics, various research institutes, think-tanks and staff members of the UN system. The guiding inquest has been to determine whether any discrepancies exist between the potential and actual benefits accruing through the reporting process on health issues and if so, whether, and how, NGOs could lessen this disparity.
Overally, gathering the necessary and relevant information for the following exposition has been a rather challenging task. This study summarises in a systematic manner the views of NGOs from a wide geographical range and a variety of political and socio-economic contexts. A request to share their experiences and opinions regarding parallel reporting on health issues was extended to more than 250 NGOs (and other organisations) worldwide, which have participated in the reporting process in the past four years. Less than half, however, expressed an interest in contributing to the present study. Identifying those NGOs, which have submitted a parallel report to one or more of the Committees that form the focus of this exposition, has been quite problematic in itself. Except for the CRC, none of the other treaty-monitoring bodies (CEDAW and CESCR) maintains an (electronic) easily accessible database recording the NGO submissions made for each Committee session. Therefore, neither the parallel reports nor the details of NGOs/NGO coalitions, which have submitted such reports for a given session are readily available on-line in the case of CEDAW and CESCR. The difficulty of locating such basic information and some Committees’ incapacity to compile and maintain an updated list of NGO submissions that can be made easily accessible (on-line) to health and human rights practitioners following or contributing to the reporting process, call for greater pressure and/or initiative to have such information made more readily available. Assuming that the Committees do not have sufficient human or financial resources to effectuate this necessity, it might be a task well suited to NGOs to carry out – for their own benefit and for the benefit of their partners around the world. Without the availability and accessibility of such basic information it would be immensely difficult to monitor consistently the reporting process on the right to health and to identify health-oriented NGOs worldwide for the purpose of pursuing working partnerships.
The Right to Health
The right to health is guaranteed in several international human rights instruments, although the precise scope of its content and application has been a matter of notorious ambiguousness. The Preamble to the Constitution of the World Health Organisation[1] offers the most comprehensive definition of the right to health, which has served as the basic point of departure for the formulation and interpretation of the provisions in most of the remaining instruments. The preamble formulates “the highest attainable standard of health” as a universal fundamental right and conceptualises its content as a “state of complete physical, mental and social well-being and not merely the absence of disease or infirmity”. Along similar lines, most treaty provisions stipulating on the right to health, including the instruments of particular interest for the purposes of the present study, frame the right as “the highest attainable level of physical and mental health”, although avoid equating it with complete human well-being. Thus, while upholding the fundamental character of the right to health, existing, and justiciable, international instruments, such as the CESCR, CEDAW and CRC, relate the realisation of this right to matters of available resources, levels of development as well as other state-to-state variations.
Generally, the right to health is considered to encompass both elements related to health care and factors characterised as “underlying preconditions for health”. The first category pertains to the availability, quality, accessibility and equality of both restorative and preventive medical care, including issues of primary[2] and child care[3], family planning services[4], mental services[5] as well as pre- and post-natal care[6]. The latter cluster, on the other hand, addresses the various circumstances in the natural or man-made surroundings, which do exert impact on human health. Among the underlying preconditions for health are generally considered to be the availability and adequacy of drinking water[7], sanitation[8], nutritious foods[9], environmental[10] and occupational[11] hygiene, and health-related information[12], as well as the abolishment of harmful traditional practices[13].
The broad scope of the right to health as well as its general characterisation as a “second-generation” right have resulted, as in the case of other economic, social and cultural rights, in the formal permissibility of states phasing out its full realisation in accordance with their available resources and other national circumstances. However, despite the overall programmic duty for “progressive” fulfilment of state responsibilities in the health domain, a core content of the right to health has been delineated subjecting states to some immediate and unconditional obligations. ‘Core content’ is generally understood to designate the minimum essential threshold of state obligations to give effect of the particular right so that the right does not lose its essence. On the basis of this definition, the core content of the right to health is considered to encompass a number of basic health services, which states are under an obligation to provide immediately and unconditionally, irrespective of their available resources. These services encompass: maternal and child health care, immunisation against major infectious diseases, appropriate treatment of common ailments and injuries, essential drugs, and an adequate access to safe water and basic sanitation[14].
State Obligations with Regard to the Right to Health
States are under a tripartite duty to respect, protect and fulfil the right to health as any other human right. This duty gives rise to both positive and negative state obligations[15] – to fully, albeit progressively, realise the right to health (with the exception of core responsibilities, which are of immediate effect) and to refrain from health-harming activities as well as the implementation of retrogressive policies. The fact that the right to health imposes upon states both positive and negative obligations underlies its interrelatedness and interdependence with ‘first-generation’ human rights and may serve as a starting point for the effective development and implementation of the concept of ‘justiciability’ on domestic levels[16]. However, until justiciability has become firmly grounded in the national legal systems of state parties to the relevant human rights instruments, supervisory mechanisms, domestic and international, aimed at awareness-raising, advocacy and reputational loss for violating states remain the only existing alternative. As such, what do these mechanisms precisely entail?
UN Mechanisms for Monitoring the Realisation of the Right to Health
Committee on the Rights of the Child[17]
The Committee on the Rights of the Child, monitoring the implementation of the Convention on the Rights of the Child by State Parties, is composed of 10 independent experts, elected by State Parties to serve for terms of 4 years. The Committee meets three times per year in Geneva and is serviced by the Office of the High Commissioner for Human Rights.
Monitoring the fulfilment of obligations under the Convention consists of periodic reviews of State Parties’ laws and policies related to children’s rights, based on information provided by governments, NGOs, IGOs and other agencies. Each State Party is required to submit an initial report of the actions taken with view to implementing the Convention 2 years after ratification of the Convention. Thereafter, reports are required every 5 years, with the Committee reserving itself the right to request complementary reports or additional information at any time.
While initial reports should provide a comprehensive overview of the actions initiated by State Parties to fulfil all their obligations under the Convention, subsequent periodic reports are to be focused on those areas, identified as problematic by the Committee during previous report examinations. In order to assist states in fulfilling their reporting obligations under the Convention, the Committee has issued specific guidelines for states to follow when preparing their reports[18].
In general, the Committee attempts to examine state reports within a year of their receipt but due to the increasing backlog of reports, this is becoming increasingly impossible. Once the report has been assigned to a session, however, its examination takes place in two stages – during a pre-session working group and subsequently, at a public plenary session. NGOs may participate on both occasions.
Pending the examination of a state report, NGOs – international, national and local, are invited to submit parallel reports. Such reports may be all-encompassing, dealing with the totality of state obligations under the Convention, or issue-specific. The parallel reports may be prepared and submitted either by individual NGOs or in coalition with national and international partners. To assist NGOs in their endeavours to contribute to the implementation of the Convention through the mechanism of state monitoring, the Committee has issued guidelines regarding the form and content of both initial and periodic NGO reports[19].
The process of preparing, submitting and monitoring issue specific reports, e.g. on the right to health, is essentially the same as for general NGO parallel reports, dealing with the Convention in its entirety. The same guidelines apply to both types of reports and the Committee makes no differentiation at the review stage as to whether it is a general or an issue-specific report. Issue-specific parallel reports, therefore, such as reports targeting specifically the right to health, do not trigger any different preparatory or review procedures.
In order for parallel reports to be taken into account by the Committee’s pre-session working group, they should be submitted within one year of the receipt of the corresponding state report by the Office of the High Commissioner for Human Rights in Geneva. The pre-session working group meets three times a year to identify in advance the main issues to be discussed with State Parties appearing at the subsequent public session. The working group’s meetings are confidential, thus closed to governmental representatives. However, NGOs and relevant international organisations (UNICEF, WHO, ILO, etc.) may be invited to attend. NGOs wishing to participate must request to be admitted to a working group meeting when submitting their parallel reports. However, only those NGOs, which are deemed to be able to provide the most relevant and factual information pertinent to the examination of state reports, will receive an invitation for participation. Upon receipt of such invitation, NGOs may submit additional written statements to the Committee for consideration before the working group meeting and give a 15-minute oral presentation at the meeting itself.
The working meetings result in the preparation of lists of issues, usually based on the input of attending NGOs, which then the State Parties to participate in the next plenary session are requested to respond to. The lists of issues are also made available to NGOs with the possibility for NGOs to prepare their own written replies, if they so wish.
Since the year 2004, the CRC has also initiated, in co-operation with UNICEF, an additional method of evaluating specific country situations[20]. Committee members are being dispatched as rapporteurs on country missions, where they can collect first-hand information from a variety of sources, including civil society. This innovative approach has so far been well received and presents an excellent opportunity for NGOs, which cannot be present in Geneva, to still engage in active dialogue with the Committee[21].
The Committee plenary sessions are public. Although NGOs cannot intervene during the sessions, they may participate as observers with the possibility to informally meet with Committee members in order to present additional information, provide updates, or suggest questions to governmental representatives.
Following discussions with State Parties during the plenary sessions and on basis of all information made available and accordingly considered, through reports and working group findings, the Committee adopts concluding observations specific to each State Party. These concluding observations contain subjects of concern and recommendations for future action and are made public through the United Nations system.
Committee on the Elimination of All Forms of Discrimination against Women[22]
The enforcement mechanism of the Convention on the Elimination of All Forms of Discrimination against Women is based also on a reporting system. State Parties are required to submit an initial report on the implementation of the Convention within one year of ratification. Thereafter they are required to submit periodic reports every four years on the progress made since the prior report.
The CEDAW Committee consists of 23 independent experts, elected by State Parties with regard to equitable geographical distribution and representation of the different legal systems in the world. The Committee holds two sessions each year (January and June) in New York and is being serviced by the United Nations Department on the Advancement of Women.