It has taken several decades to develop effective implementation strategies that might enhance States parties’ compliance with the International Covenant on Economic, Social and Cultural Rights. The extent to which ratification of the Covenant (or any other human rights instrument) affects the implementation of rights in a country remains controversial. Some believe that states ratify human rights conventions only to gain the approval of other states; proponents cite numerous cases of states parties violating their human rights obligations as evidence. Others argue that states ratify human rights treaties in the transition from authoritarian to democratic regimes to cement human rights obligations and prevent a reversion to the old system; South Africa and the former socialist countries of Eastern Europe are cited as examples of the rapid ratification of such treaties.
A recent work by Beth A. Simmons, which undertakes a systematic empirical study of the impact of human rights treaty ratification on subsequent state behavior, presents a more complex and detailed picture. The author concludes that in some cases-but not all-there is a clear correlation between treaty ratification and fuller enjoyment of human rights. For example, the Convention on the Rights of the Child, the most rapidly and widely ratified international human rights treaty of the United Nations, establishes state obligations with respect to conscripting children into the armed forces and promoting the healthy development of children: the former is prohibited and the latter is mandated. How effective has the Convention been? According to the study, ratification had a statistically significant impact on the number of children recruited as soldiers, but no impact on the number of measles vaccinations.2 2 Therefore, it cannot be assumed that ratification of a treaty on its own leads to greater respect for rights; its success in this regard depends on the implementation strategies used and a complex set of other interrelated factors.
The right to health
The right to health is a fundamental social and economic right. Article 12 of the ICESCR states, “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 remarks should be made. First, as with most other human rights obligations, the right applies to all persons, regardless of their legal or any other status. Irregular migrants, prisoners, and the homeless also fall under this obligation. Second, like other social and economic rights, the right to health is realized progressively. Covenant ratifying states must “take measures” by “all appropriate means, including in particular the adoption of legislative measures” to progressively secure the right in all its many dimensions “to the maximum extent of available resources.
3 The language used is rather complex and allows for a certain latitude of interpretation. At a minimum, they require states parties to monitor the implementation of their policies and to take steps to improve the services they provide. In drafting the ICESCR, consideration has been given to the fact that implementing social and cultural rights may require complex and elaborate systems with qualified personnel; extensive infrastructure; in the case of the right to health, specialized products, including medicines; and operational and investigative mechanisms. The establishment of such systems is not sufficiently legislative: it requires the engagement of all stakeholders, adequate expertise, research and funding. Accordingly, the main obligation is to progressively improve the services provided in these areas, increase their coverage, improve their quality and strengthen their outcome in proportion to the financial and technical capacity of the State. In the case of the right to health, the ICESCR prescribes the protection of both physical and mental health, and specifies various areas of primary importance, such as the healthy development of the newborn and child, public health measures to improve environmental sanitation, and the prevention of “epidemic, endemic, occupational, and other diseases. This article will focus on the evidence regarding the realization of the right to health for one of the most vulnerable target populations, children; children will be understood to mean all persons under 18 years of age.