The Framework Convention on Global Health: An empowering International Instrument to Advance the Right to Health

by Eric A. Friedman. A version of this blog first appeared on the blog of the O’Neill Institute for National and Global Health Law.

We often look to how the Framework Convention on Global Health (FCGH) would empower people, enhancing meaningful participation and government accountability to the right to health, with an emphasis on people who now have the least voice and to whom governments are least accountable. Such empowerment is central to the FCGH. Here, I focus on the advantages of this proposed treaty from the perspective of governments, especially ministries of health.

Over 70 years after the WHO Constitution and the Universal Declaration of Human Rights, the right to health still bears no relation to the reality of billions of people. Take, for instance, the chasm in health care quality and safety globally. Poor quality of care takes at least five to eight million lives yearly, leading to incalculable suffering and wasted resources. Marginalized populations are least likely to receive quality care. Closing this chasm requires participation, accountability, resources, and people to understanding their right to health.

The lack of access to quality health care is emblematic of the range of failings of the right to health to have yet been translated into the lived reality for large swaths of the world’s people, and the vast inequalities in health and quality health care that persist. Huge portions of the world’s population are also unable to access the underlying determinants of health, meaningfully participate in policymaking affecting their health, or hold governments, or anyone else, accountable for progress in health or quality health care. Health ministries lack the power and resources to provide quality universal health coverage.

Closing health inequities and gaps in access to quality health care, as well as to the underlying determinants of health, while addressing social and other determinants, demands raising accountability to the right to health in all of its dimensions – including its commitment to equality, meaningful participation, and adequate resources – to the highest possible level of commitment. A Framework Convention on Global Health (FCGH) would do just that. This global treaty would advance the right to health and health accountability, aiming to vastly reduce cavernous health inequities, including the quality chasm, and empower people and governments to better realize the right to health.

Why a treaty on the right to health?

The right to health is codified in international law through the International Covenant on Economic, Social and Cultural Rights and other treaties, but this has been deeply insufficient for realizing the right. And the right to health focuses on government responsibilities to their own populations, which remain central, yet also inadequate in our globalized world, where actions in one country can significantly contribute to or harm health elsewhere, and corporate action and power increasingly affect the right to health. What, then, would the FCGH add? How could it empower governments and societies to better realize this right?

By clarifying currently binding but presently vague human rights norms…

Presently human rights norms applicable to the right to health are vague, such as requirements on international assistance and cooperation, progressive realization, participation, non-discrimination, and respecting the right to health in all government actions. These requirements are ill-defined, or – like access to quality care – developed through treaty bodies or other mechanisms. Negotiated and agreed to by states, a treaty would create government ownership and buy-in around clarified right to health-related norms – for instance, that progressive realization requires continuous quality improvement. The Framework Convention on Tobacco Control (FCTC), which has stimulated many states to take far-reaching tobacco control measures, demonstrates that the power of treaty norms can far exceed the force of norms in non-binding instruments. The FCGH could do the same for the right to health.

…the FCGH would empower ministries of health:

  • To promote equity and participation: Ministries of health aim to maximizing the health of their people, and to do so equitably. They have signed onto WHO’s Framework on Integrated People-Centered Health Services, yet demands for quick results and fast progress on national indicators may impede their ability to promote participatory processes, to direct resources to hard-to-reach communities, or to ensure that expanded access to health care is expanded access to quality health care. This undermines efforts to create sustained, equitable, high-quality, safe, and effective health systems. Clear standards on participation and equity may be able to create the political space to direct more resources and attention to these priorities.

    The FCGH would also empower ministers of health when engaging other ministries and the legislature. It would provide them legal backing in arguing for laws and policies that provide non-discriminatory care to all – a public health necessity – and help health ministers push back against policies that may drive people in marginalized groups underground. Similarly, where lack of political and economic power lead populations to receive fewer resources to access quality health care and benefit from other determinants of health, clear FCGH equity requirements could add to ministers’ arguments for equitable distribution.

  • To enable Health in All Policies: FCGH guidelines on respecting the right to health throughout government policies will require a Health in All Policies approach, for all sectors need to avoid harming health and contribute to healthier populations. The FCGH could enhance the authority of health ministers to engage with other ministries for joint policymaking, and may include measures, like health impact assessments, to facilitate this approach, helping meet health goals.

  • To protect against commercial determinants of health in international agreements and domestically: The unambiguous obligation to respect the right to health in all interactions, with the right elevated above commercial interests, combined with health impact assessments, will make the FCGH a powerful tool for governments to resist pressure to agree to terms that may harm health as they negotiate international agreements. And the FCGH could make it more likely that dispute resolutions bodies developed through trade and investment treaties will protect health in their rulings. Meanwhile, the FCGH would act as a shield against industry lawsuits against government regulations protecting and promoting health, and could empower health ministers in negotiations within the government on regulating companies, such as the food, beverages, and alcohol industries. And like the Pandemic Influenza Preparedness Framework, the FCGH could include creative mechanisms to bind private actors, opening up further pathways for protecting against harmful practices.

By establishing a framework for domestic health spending and international assistance…

No agreed norms on domestic and international health spending currently exist globally, while concerns about government accountability may lead states to limit international health financing or avoid direct support to the government, impeding national ownership and leaving national priorities unaddressed. The FCGH could establish a domestic and international health financing framework, creating the powerful norms necessary for truly universal access to quality health care, along with assurances on the accountable use of funding that a treaty is uniquely positioned to create.

…the FCGH would empower health ministries to secure increased domestic health resources and increased international assistance.

Domestic health financing targets will make the treaty a valuable ally to health ministers in negotiating for robust health budgets. And the treaty’s health financing framework should lead to increased international assistance to lower-income states. With the FCGH emphasis on national ownership, combined with accountability, this assistance will be more likely to directly support national strategies.

By promoting specific strategies to implement the right to health…

Particular pathways for implementing the right to health are largely absent from international law today. The FCGH would fill this gap, containing specific strategies to implement the right, such as health impact assessments, health equity programs of action, quality improvement policies, and specific avenues for inclusive participation and accountability. Including them in the FCGH would create strong norms and accountability, promoting their widespread adoption.

…the FCGH would provide health-enhancing guidance.

The FCGH would draw on lessons of the FCTC, where the best scientific evidence underlay the treaty’s comprehensive approach to effective tobacco control. Specific strategies in the FCGH would similarly provide governments a comprehensive roadmap, based on the best evidence and thinking on public health and human rights, on how states can effectively implement the right to health, improving their population’s health.

By enhancing human rights mechanisms for health…

States recognize the importance for accountability, including through participatory approaches, but there are currently few right to health accountability mechanisms. The FCGH could establish additional mechanisms to promote right to health accountability, such as regional special rapporteurs charged with monitoring FCGH implementation and engaging all stakeholders on how to improve implementation.

…the FCGH could catalyze empowering national dialogue.

Much as now happens through the UN Special Rapporteur on the right to health, regional special rapporteurs could lead to valuable convenings within countries, and potentially within regions, where governments, civil society organizations, community members, and health workers, among others, honestly discuss FCGH implementation, and jointly strategize on how to address obstacles. Other possible mechanisms (like joint external evaluations, an approach that WHO effectively spearheaded for the International Health Regulations [2005]) could similarly create productive, empowering dialogue.

Ensuring national ownership

While FCGH stipulations would require certain government actions, they could do so in ways that maximize national ownership and involve joint and inclusive governance. Drawing on the approach of the Paris Agreement on climate change, at the heart of which is national target-setting within the scope of the overall shared commitment on greenhouse gas reduction, the FCGH could itself feature national target-setting, plus other flexibilities. For example, the FCGH could provide guidance and parameters in areas such as financing, equity, quality, health coverage, and participation and accountability mechanisms, with inclusive national processes then establishing national targets and timelines, selecting among a menu of options, or otherwise tailoring FCGH stipulations to national circumstances.

Thus, with a carefully calibrated mix of binding stipulations and national flexibility, the FCGH has the potential to be a create a powerful, innovative, 21st-century approach to the right to health, achieving under its auspices a healthy world, ones in which quality health care is universal, everyone benefits from the underlying and social determinants of health, and equity, participation, and accountability are at the center of national and global efforts to protect the public’s health.

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