Beyond compassion: The central role of accountability in applying a human rights framework to health

Health and Human Rights

Volumn 10, Issue 2, 2009, Pages 1-20

  Yamin, Alicia Ely ^a  

^a HARVARD LAW SCHOOL   (United States)

Author keywords

[No Author keywords available]

Indexed keywords

ACCOUNTABILITY; HEALTH SERVICES; HUMAN RIGHTS; INSTITUTIONAL FRAMEWORK; LAW ENFORCEMENT; PUBLIC HEALTH; SOCIAL POLICY; STATE ROLE;

ARTICLE; CULTURAL ANTHROPOLOGY; ETHICS; HEALTH; HEALTH CARE DISPARITY; HEALTH DISPARITY; HUMAN; HUMAN RIGHTS; LEGAL ASPECT; METHODOLOGY; POVERTY; PUBLIC HEALTH SERVICE; SOCIAL ENVIRONMENT; SOCIOLOGY; LEGISLATION AND JURISPRUDENCE; MEDICAL SOCIOLOGY; PROCEDURES;

CULTURE; HEALTH STATUS DISPARITIES; HEALTHCARE DISPARITIES; HUMAN RIGHTS; HUMANS; POVERTY; PUBLIC HEALTH ADMINISTRATION; SOCIAL ENVIRONMENT; SOCIOLOGY, MEDICAL; WORLD HEALTH; GLOBAL HEALTH;

EID: 70449574361     PISSN: 10790969     EISSN: None     Source Type: Journal    
DOI: None     Document Type: Article

References (134)

1. Uvin, Human Rights and Development (West Hartford, CT: Kumarian Press, 2004), p. 131;
2. K. De Feyter, World Development Law (Oxford: Intersentia, 2001)
3. United Nations Development Programme, Integrating Human Rights with Sustainable Development: UNDP Policy Document 2 (Geneva: UNDP, 1998)
4. M. Robinson, "What Rights Can Add to Good Development Practice," in P. Alston and M. Robinson (eds), Human Rights and Development: Towards Mutual Enforcement (Oxford: Oxford University Press, 2005), pp. 25-43
5. S. P. Marks, "Human Rights in Development: The Significance for Health," in S. Gruskin, M. A. Grodin, G. J. Annas, and S. P. Marks (eds), Perspectives on Health and Human Rights (NY and London: Routledge, 2005), pp. 95-116
6. A. E. Yamin, "Will We Take Suffering Seriously? Reflections on What Applying a Human Rights Framework to Health Means and Why We Should Care," Health and Human Rights 10 (2008), pp. 45-63.
7. M. Langford, Claiming the Millennium Development Goals: A Human Rights Approach (New York: United Nations, 2008), p. 15.
8. "Mission Statement," International Initiative on Maternal Mortality and Human Rights. Available at http://www.reproductiverights.org/pdf/MMHR%20brochure.pdf.
9. As a recent Office of the High Commissioner for Human Rights (OHCHR) meeting report on incorporating human rights into development practice concluded, "[t]he devil is undoubtedly in the details." Office of the High Commissioner for Human Rights, Monitoring Human Rights and the MDGs: The Quest for Coherence Synthesis Report from the Expert Consultation, (Geneva: OHCHR, 2008), para. 13.
10. A. E. Yamin, "The Future in the Mirror: Constructing and De-Constructing Strategies for the Defense and Promotion of Economic, Social and Cultural Rights," Human Rights Quarterly 27 (2005), p. 1200.
11. Yamin (see note 1). For a more general application of the need to compare performance of states across resource levels
12. S. Fukuda-Parr, T. Lawson-Remer, and S. Randolph, "Measuring the Progressive Realization of Human Rights Obligations: An Index of Economic and Social Rights Fulfillment," University of Connecticut Working Paper 8 (August 2008).
13. Moreover, the international community's engagement with the Millennium Development Goals (MDGs) - which have yet to incorporate meaningful human rights approaches to accountability - presents a strategic opportunity. Four of the eight MDGs that stand at the center of current international development efforts are directly related to the right to health: combat HIV/AIDS, malaria, and other diseases; improve child health; improve maternal health; and provide safe drinking water and sanitation (as part of sustainable development). Three others relate to social determinants of health: eradicate extreme poverty (and hunger); provide universal primary education; and promote gender equality. The eighth MDG commits donor states to a "global partnership for development" to assist states in the global South in reaching these targets. Yet, despite efforts by the OHCHR and some other groups, human rights principles and concerns -including accountability - have been largely absent from not only the development, but also monitoring of progress with respect to the MDGs thus far.
14. P. Alston, "Ships Passing in the Night: The Current State of the Human Rights and Development Debate Seen through the Lens of the Millennium Development Goals," Human Rights Quarterly, 27 (2005), p. 755;
15. Langford (see note 2). However, in the case of MDG 5, there are a number of promising signs of change in that regard, including the launch of the IIMMHR and fieldwork by some of the largest human rights nongovernmental organizations, including Amnesty International and Human Rights Watch, on maternal health.
16. H. Potts, Accountability and the Highest Attainable Standard of Health (Colchester, UK: University of Essex/Open Society Institute, 2008), p. 5. Available at http://www2.essex.ac.uk/human_rights_centre/rth/docs/HRC_Accountability_Mar08.pdf.
17. For example, in Spanish, one says rendición de cuentas to describe redress, while responsabilidad and control ciudadano refer to aspects of political and social accountability, respectively.
18. Langford (see note 2).
19. For an elaboration of states' obligations of conduct and result
20. V. Dankwa et al.,"Maastricht Guidelines on Violations of Economic, Social and Cultural Rights," Human Rights Quarterly 20 (1998), pp. 691-704.
21. P. Houtzager, A. Joshi, and A. Gurza-Lavalle, "State Reform and Social Accountability," IDS Bulletin 38/6 (2008).
22. Right to Food Campaign at http://www.righttofoodindia.org/campaign/campaign.html.
23. For a discussion of how this was the case in Peru,
24. C. Ewig, "Gender Equity and Neoliberal Social Policy: Health Sector Reform in Peru" (PhD dissertation, University of North Carolina at Chapel Hill, 2008).
25. See, for example, Houtzager, Joshi, and Gurza-Lavalle (see note 12).
26. S. Gloppen, "Public Interest Litigation, Social Rights, and Social Policy," in A. A. Dani and A. De Haan (eds), Inclusive States (Washington, DC: World Bank, 2008), pp. 343-368.
27. South African Minister of Health v. Treatment Action Campaign (No. 2), 2002 (5) SA 721.
28. PUCL v. Union of India and Others, Writ Petition [Civil] 196 of 2001.
29. Right to Food Campaign (see note 13).
30. D. Brinks and V. Gauri, "A New Policy Landscape: Legalizing Social and Economic Rights in the Developing World," in V. Gauri and D. Brinks (eds), Courting Social Justice: Judicial Enforcement of Social and Economic Rights in the Developing World (New York: Cambridge University Press, 2008), pp. 303-352.
31. K. Roth, "Defending Economic, Social and Cultural Rights: Practical Issues Faced by an International Human Rights Organization," Human Rights Quarterly 26/1 (2004), pp. 63-73.
32. A. E. Yamin, Deadly Delays: Maternal Mortality in Peru, A Rights-Based Approach to Safe Motherhood (Cambridge, MA: Physicians for Human Rights, 2007). Available at http://physiciansforhumanrights.org/library/documents/reports/maternal-mortality-in-peru.pdf.
33. L. London, "What is a Human-Rights Based Approach to Health and Does It Matter?" Health and Human Rights 10 (2008), pp. 63-77, at 72. Available at http://www.hhrjournal.org/index.php/hhr.
34. L. Freedman "Human Rights, Constructive Accountability and Maternal Mortality in the Dominican Republic," International Journal of Gynecology and Obstetrics 82 (2003), pp. 111-114.
35. L. Pautassi, "El Empleo en Salud en la Argentina. La Sinergia entre Calidad del Empleo y Calidad de la Atención," in M. Nieves Rico and F. Marco (eds), Mujer y Empleo: La Reforma de la Salud y La Salud de la Reforma en Argentina (Buenos Aires, Argentina: Siglo Veintiuno Editores, 2006), pp. 193-233.
36. Freedman (see note 25).
37. UN Human Rights Council, Report of the 7th special session of the Council on "The Negative Impact on the Realization of the Right to Food of the Worsening of the World Food Crisis, Caused Inter Alia by the Soaring Food Prices," Geneva, May 22, 2008, UN Doc. No. A/HRC/S-7/2 (July 2008).
38. International Covenant on Economic, Social and Cultural Rights, G.A. Res. 2200, (XXI), UN GAOR, 21st Sess., Supp. No. 16, at 49, UN Doc. No. A/6316 (1966), Article 2.
39. Development Assistance Research Associates (DARA) Humanitarian Response Index 2008. Available at http://www.hri.daraint.org/what_is_hri/hri_2008.
40. OECD, Paris Declaration on Aid Effectiveness (Paris: OECD, 2005). Available at http://www.oecd.org/document/36/0,2340,en_2649_3236398_34689188_1_1_1_1,00.html;
41. World Bank, "Accra Agenda for Action," 3rd High Level Forum on Aid Effectiveness, September 2-4, 2008 (Accra, Ghana: World Bank 2008).
42. Committee on Economic, Social and Cultural Rights (ESCR Committee), General Comment No. 14, The Right to the Highest Attainable Standard of Health, UN Doc. No. E/C.12/2000/4 (2000), para. 39. Paul Hunt, the first UN Special Rapporteur on the right of everyone to the enjoyment of the highest attainable standard of physical and mental health, repeatedly insisted that states possess such obligations independently and as members of international organizations: "In addition to obliga-tions at the domestic level, developed States have a responsibility to provide international assistance and cooperation to ensure the realization of economic, social, and cultural rights in low-income countries. This responsibility arises from recent world conferences, including the Millennium Summit, as well as provisions of international human rights law." UN Human Rights Council, 60th Session, Report of the Special Rapporteur on the Right of Everyone to the Enjoyment of the Highest Attainable Standard of Physical and Mental Health, prepared by Paul Hunt, UN Doc. No. E/CN.4/2004/49 (2004), para. 45.
43. A. M. Goetz and R. Jenkins, "Hybrid Forms of Accountability: Citizen Engagement in Institutions of Public-Sector Oversight," Public Management Review 3/3 (2001),
44. P. Newell and S. Bellaour, "Mapping Accountability: Orig ins, Contexts and Implications for Development," IDS Working Paper 168 (Brighton, England: IDS, 2001),
45. R. K. Murthy and B. Klugman, "Service Accountability and Community Participation in the Context of Health Sector Reforms in Asia: Implications for Sexual and Reproductive Health Services," Health and Policy Planning 19, Supplement 1 (2004)
46. "Casos Investigados por la Defensoría del Pueblo," Serie Informes Defensoriales 27 (Lima, Peru: Defensoría del Pueblo, 1999). Available at http://physiciansforhumanrights.org/library/documents/reports/maternal-mortality-in-peru.pdf;
47. Defensoría del Pueblo (Ombuds Office of Colombia), Supervisión a los Servicios de Planificación Familiar IV: Casos Investigados por la Defensoría del Pueblo (2005). Available at http://www.ombudsman.gob.pe/modules/Downloads/informes/defensoriales/informe_90.pdf.
48. For example, in 2004, The Indian National Human Rights Commission (NHRC) organized public hearings for a "National Action Plan to Operationalise the Right to Health Care within the Broader Framework of the Right to Health." In Argentina, the Human Rights Ombuds Office has been called upon by the Supreme Court for interventions and monitoring in various cases relating to public health issues (vaccine production) and environmental issues bearing on health (river pollution). In Colombia, the Human Rights Ombuds Office recently undertook a comprehensive review of monitoring and accountability mechanisms within Colombia's health system as well as the use of judicial remedies to secure accountability for violations. The scathing report that the Human Rights Ombuds Office issued in 2007 documented the tens of thousands of judicial cases (tutelas) that people were filing annually as a result of the lack of oversight and accountability within the system itself. It also called upon the Constitutional Court to exercise its authority and declare the entire health system in "an unconstitutional state of affairs." When, in July 2008, The Colombian Constitutional Court called for a dramatic restructuring of the health system, it, in turn, set up a process of reporting and stakeholder participation, which included the Human Rights Ombuds Office.
49. NHRC and JSA, "Recommendations of National Action Plan to Operationalize the Right to Health Care," National Public Hearing on Right to Health Care, December 16-17, 2004, New Delhi. Available at http://www.nhrc.nic.in/disparchive.as?Fno=874;
50. Defensoría del Pueblo (Ombuds Office of Colombia), La Tutela y el Derecho a la Salud. Período 2003-2005 (Bogotá: Defensoria del Pueblo, 2007).
51. Although NHRIs are potentially well-suited to monitor how development and health goals are being achieved (including "international assistance and cooperation," regarding MDGs or otherwise in donor countries), to date this potential has not been fulfilled. Their ability to play such roles requires not only an investment in capacity, but often dramatic reconfigurations of institutional missions and legal mandates.
52. V. Sripati, "India's National Human Rights Commission: A Shackled Commission?" Boston University International Law Journal 18 (2000), pp. 3-46.
53. R. Gargarella, P. Domingo, and T. Roux (eds), Courts and Social Transformation in New Democracies: An Institutional Voice for the Poor? (Burlington, VT: Ashgate, 2006).
54. Courts and the Legal Enforcement of Economic, Social and Cultural Rights: Comparative Experiences of Justiciability (Geneva: International Commission of Jurists; 2008);
55. Gauri and Brinks (see note 20). For an early review of these cases, which focused mostly on access to ARVs
56. B. C. A. Toebes, The Right to Health as a Human Right in International Law (Antwerp: Intersentia, 1999).
57. Much of the writing has been inaccurate, sug-gesting that there have only been a handful of cases. An exception is:
58. H. V. Hogerzeil, M. Samson, J. Vidal Casanovas, and L. Rahmani-Ocora, "Is Access to Essential Medicines as Part of the Fulfilment of the Right to Health Enforceable through the Courts?" Lancet 368 (2006), pp. 305-311.
59. Across these very different contexts, courts have required the political branches of government to provide access to information (a key element in the right to health), as well as special protections for vulnerable groups (for example, children) and public justification for the "reasonableness" of their policies and practices. Compare: South African Minister of Health v. Treatment Action Campaign (see note 17) and Soobramoney v. Minister of Health, KwaZulu-Natal 1998 (1) SA 765 (Constitutional Court, South Africa).
60. M. Cantero, "Antiretrovirales Reducen Mortalidad de Ticos con SIDA," La Nacion, San Jose, Costa Rica (November 16, 2005), cited in Gauri and Brinks, "Introduction" in Gauri and Brinks (see note 20), p. 2.
61. For example, it is traditionally asserted that there is something fundamentally distinct in the nature of ESC rights, as opposed to civil and political rights, which prevents their justiciability. Yet we find across contexts that procedural adaptations - for example, changes in standing to allow for collective relief - greatly increase the enforceability of health and other ESC rights claims. They similarly increase the enforceability of certain civil and political rights claims, such as those involving prisons or elections. In a recent empirical study, Varun Gauri and Daniel Brinks similarly noted that "the popular account of judicial and legislative logic needs to be corrected." That is, "courts are anchored in more deontological forms of reasoning and valuation but move to incorporate other logics," such as cost-utility and cost-effectiveness, in enforcing health and other ESC rights. Gauri and Brinks, "Introduction," (see note 20), p. 5.
62. International Commission of Jurists, Courts and the Legal Enforcement of Economic, Social and Cultural Rights: Comparative Experiences of Justiciability (Geneva: International Commission of Jurists, 2008), pp. 95-97.
63. See Hogerzeil, Samson, Vidal Casanovas, and Rahmani-Ocora (see note 39);
64. O. Ferraz and F. Vieira, "Direito a Saude, Politicas Publicas e Desigualdades Sociais no Brasil: Equidade como Principio Fundamental," Dados (forthcoming, 2009) [English abstract: The Right to Health, Public Policies and Inequalities in Brazil: Equity as the Fundamental Principle, SSRN. Available at http://ssrn.com/abstract=1137872].
65. For example, although "Scientific Technical Committees" of insurance companies are autho-rized to determine coverage for medications not included in the POS, they have not been authorized to make such determinations regarding any other services or treatments (for example, MRI of the spine). Corte Constitucional de Colombia, Sala Segunda de Revisión, Sentencia T-760. July 31, 2008. Magistrado Ponente: Manuel José Cepeda.
66. See Limburg Principles & Maastricht Guidelines on the role of courts in social issues and social/psychological spheres of power as much as legal. Dankwa et al. (see note 11).
67. Mendoza Beatriz Silvia y Otros C/Estado Nacional y Otros S/Daños y Perjuicios. Corte Suprema de Justicia de la Nacion. July, 2008. Available at http://www.farn.org.ar/docs/fallo_riachuelo080708.pdf.
68. Corte Constitucional de Colombia (see note 44).
69. R. Dixon, "Creating Dialogue about Socioeconomic Rights: Strong-form Versus Weak-form Judicial Review Revisited," International Journal of Constitutional Law 5 (2007), pp. 112-147;
70. C. Sabel and W. Simon, "Destabilization Rights: How Public Law Litigation Succeeds," Harvard Law Review 117 (2004), pp. 1015-1101.
71. S. Gruskin and N. Daniels, "Process Is the Point: Justice and Human Rights: Priority Setting and Fair Deliberative Process," American Journal of Public Health 98/9 (2008), pp. 1573-1577.
72. N. Daniels, "Accountability for Reasonableness," British Medical Journal 321 (2000), pp. 1300-1301;
73. N. Daniels, Just Health: Meeting Health Needs Fairly (New York: Cambridge University Press, 2007).
74. Critiques of Daniels' procedural justice have argued that it "fails to ensure the rightness of the rationales put forward" to decide on priorities, which is precisely the role that the courts are assuming, which, therefore, could suggest that these judicial processes enhance some aspects of procedural justice. For a critique of Daniels
75. J. Prah Ruger, "Ethics in American Health 1: Ethical Approaches to Health Policy," American Journal of Public Health 98 (2008), pp. 1751-1756, at 1753.
76. For example, implementation of the landmark Treatment Action Campaign decision has been remarkably patchy by district. Enforcement of the decisions of Colombian courts has been delayed by inordinately complex and inefficient reimburse-ment procedures, a fact noted by the Constitutional Court itself in its sweeping 2008 decision calling for modification in those procedures, among other aspects of the health system. Corte Constitucional de Colombia (see note 44).
77. Ferraz and Vieira (see note 43).
78. M. García Villegas and R. Uprimny, "The Constitutional Court and Social Emancipation in Colombia," in B. de Sousa Santos (ed), Democratizing Democracy: Beyond the Liberal Democratic Canon, Vol. 1. (London: Verso, 2006), pp. 66-102.
79. For example, each health-related MDG implies the protection of multiple rights. Such rights include both civil and political and ESC rights. For instance, it is possible to achieve MDG 5 - improving maternal health and reducing maternal mortality - only by implicating (directly and indirectly) the rights to life, health, bodily integrity, political participation, equality before the law, and education; as well as freedoms of information, association, movement, and to found a family.
80. R. J. Cook, "Advancing Safe Motherhood through Human Rights," in I. Merali and V. Oosterveld (eds), Giving Meaning to Economic, Social and Cultural Rights (Philadelphia: University of Pennsylvania Press, 2001), pp. 109-123;
81. S. Gruskin et al., "Using Human Rights to Improve Maternal and Neonatal Health: History, Connections and a Proposed Practical Approach," Bulletin of the World Health Organization 86 (2008), pp. 577-656. Available at http://www.who.int/pmnch/topics/maternal/usinghuman-rights/en/index.html.
82. For example, the "inherent right to life" enshrined in the International Covenant on Civil and Political Rights (ICCPR), among other treaties, cannot be interpreted restrictively or in isolation from the positive measures required to fulfill the right to health. Human Rights Committee, General Comment No. 6, The Right to Life, UN Doc. No. A/37/40 (1982), para. 5. See also, United Nations, World Conference on Human Rights: Vienna Declaration and Programme of Action, Vienna, June 14-25, 1993, UN Doc. No. A/CONF.157/24 (Part I) (1993), reprinted in 32 I.L.M. 1661.
83. For one of the first articulations of the three dimensions of state obligations to respect, protect, and fulfill rights
84. A. Eide, "Report on the Right to Food as a Human Right," UN Doc. No. E/CN.4/Sub.2/1987/23 (1987). For application of different dimensions of obligations to civil and political rights, see also, Human Rights Committee, General Comment No. 28, Equality of Rights between Men and Women (Article 3), UN Doc. No. CCPR/C/21/Rev.1/Add.10 (2000).
85. ESCR Committee (see note 32), para. 34.
86. ESCR Committee (see note 32), para. 35.
87. ESCR Committee (see note 32), para. 33.
88. The South African Constitutional Court has rejected a notion of a minimum core that is immedi-ately enforceable regardless of resources, while the Colombian Constitutional Court has taken the social insurance plan in Colombia to define a minimum core that should be immediately enforceable under the Colombian Constitution, as informed by inter-national law. Corte Constitucional de Colombia (see note 44). Minister of Health et al. v. Treatment Action Campaign (Constitutional Court of South Africa, July 5, 2002). Available at http://www.tac.org.za/ Documents. For an overview of the many interpre-tations and treatments of the minimum core
89. K. Young, "The Minimum Core of Economic and Social Rights: A Concept in Search of Content," Yale Journal of International Law 33/1 (2007), p. 113.
90. OECD (see note 31).
91. Each State party to the ICESCR "undertakes to take steps, individually and through international assistance and co-operation, especially economic and technical, to the maximum of its available esources, with a view to achieving progressively the full realization of the rights recognized in the present Covenant by all appropriate means." UN General Assembly, 21st Session, Official Records, Supplement 16, "Article 2," International Covenant on Economic, Social & Cultural Rights, G.A. Res. 2200, UN Doc A/6316 (1966), 993 UNTS 3 (adopted Dec. 16, 1966).
92. See UN Human Rights Council, 60th Session, Report of the Special Rapporteur on the Right of Everyone to the Enjoyment of the Highest Attainable Standard of Physical and Mental Health (see note 32). See also, ESCR Committee (see note 32).
93. UN Committee on the Elimination of Discrimination Against Women, General Recommendation No. 24, Women and Health, UN Doc. No. CEDAW/C/1999/I/WG.II/WP.2/Rev.1 (1999), para. 26.
94. Nor, as traditionally has been done in deter-mining public international law principles, can we merely look to the practices of "civilized nations."
95. D. Shelton, "Normative Hierarchy in International Law," American Journal of International Law 291 (2006), pp. 291-323, at 295.
96. P. Farmer and J. Kim, "Community Based Approaches to the Control of Multidrug Resistant Tuberculosis: Introducing 'DOTS-Plus,'" British Medical Journal 317 (1998), pp. 671-674.
97. UNAIDS/WHO Policy Statement on HIV Testing. Available at http://data.unaids.org/una-docs/hivtestingpolicy_en.pdf.
98. Sometimes the evidence is not clear, and in turn, normative obligations may be unclear.
99. T. McGinn, "Internally Displaced Persons in Colombia; A Public health Analysis," in A. E. Yamin (ed), Learning to Dance: Case Studies on Advancing Women's Reproductive Health and Well-Being from the Perspectives of Public Health and Human Rights, Francois-Xavier Bagnoud Center Series on Health and Human Rights (Cambridge: Harvard University Press, 2005), pp. 63-69, at 67.
100. UN Millenium Project Task Force on Child Health and Maternal Health, "Health Status and Key Interventions," Who's Got the Power? Transforming Health Systems for Women and Children (London: Earthscan, 2005), pp. 49-94. Available at http://www.unmillen-niumproject.org/reports/tf_health.htm.
101. D. Maine, Safe Motherhood Programs: Options and Issues (New York: Center for Population and Family Health, Columbia University, 1991).
102. Note by the Secretary-General Transmitting the Report of the Special Rapporteur on The Right of Everyone to the Enjoyment of the Highest Attainable Standard of Physical and Mental Health, UN Doc. No. A/61/338 (2006), para. 17.
103. It is worth noting that lack of access to justice also reflects this marginalization.
104. International Covenant on Economic, Social and Cultural Rights (see note 29).
105. UN Committee on Economic, Social and Cultural Rights, Optional Protocol to the Covenant. Available at http://www2.ohchr.org/english/law/docs/A.RES.63.117_en.pdf.
106. See, for example, Roth (see note 21).
107. Fukuda-Parr, Lawson-Remer, and Randolph (see note 6), p. 1.
108. R. Balakrishnan and D Elson, "Auditing Economic Policy in Light of Obligations of Economic and Social Rights," Essex Human Rights Review 5 (2008), pp. 1-19, at 8.
109. R. Balakrishnan and D Elson, "Auditing Economic Policy in Light of Obligations of Economic and Social Rights," Essex Human Rights Review 5 (2008), pp. 1-19, at 8.
110. UNDP, "Guatemala," Human Development Report 2007/2008. Available at http://hdrstats.undp.org/countries/country_fact_sheets/cty_fs_GTM.html.
111. P. Alston, Human Rights Council, Statement by Professor Philip Alston, Special Rapporteur on Extrajudicial, Summary or Arbitrary Executions, March 27, 2007. Available at http://ctuhr.org/files/Alston%27s%20Statement.pdf, page 5.
112. P. Heller, "Fiscal Space: What Is It and How to Get It?" Finance & Development: A Quarterly Magazine of the International Monetary Fund 2/2 (June 2005). Available at http://www.imf.org/external/pubs/ft/fandd/2005/06/basics.htm.
113. IDS, The Future State: Taxation, Aid and Accountability (Cambridge: Cambridge University Press, 2007);
114. P. Nanda, Health Sector Reforms in Zambia: Implications for Reproductive Health and Rights (Takoma Park, MD: Center for Health and Gender Equity, 2000).
115. D. Diaz Echeverria et al., Muerte Materna y Presupuesto Publico (Mexico, DF: Fundar, 2006).
116. ESCR Committee (see note 32).
117. C 251/97, Segunda Sala de Revisión, Constitutional Court of Colombia, 1997.
118. C 1165/2000, Segunda Sala de Revisión, Constitutional Court of Colombia, 2000; C 040/2004 Segunda Sala de Revisión, Constitutional Court of Colombia, 2004.
119. C 130/02, Segunda Sala de Revisión, Constitutional Court of Colombia, 2002. This principle was reaffirmed in Corte Constitucional de Colombia (see note 44).
120. Balakrishnan and Elson (see note 80), p. 1. 93. Contrast Roth (see note 21).
121. Compare Amartya Sen's capabilities theory relating to human development.
122. A. Sen, Development As Freedom (New York: Anchor Books, 2000).
123. When there is disagreement about the grounds for decisions regarding complex matters of health and social policy, human rights calls for what Daniels has termed in ethics "accountability for reasonableness"- a fair process that is: evidence-based, transparent, and public so that different interested persons can see and debate the reasoning for decisions; revisable in light of new evidence; and enforceable. Compare Paragraph 43(f) of General Comment 14 with Norman Daniels's accountability for reasonableness. ESCR Committee (see note 32), para. 43(f).
124. Universal Declaration of Human Rights (UDHR), G.A. Res. 217A (III), UN Doc. No. A/810 (1948), at 71.
125. P. Hunt and G. Backman, "Health Systems and the Right to the Highest Attainable Standard of Health," Health and Human Rights 10/1 (2008). Available at http://hhrjournal.org/index.php/hhr.
126. For a further elaborated model of right-to-health features of health systems
127. G. Backman, P. Hunt, R. Khosla et al.,"Health Systems and the Right to Health: An Assessment of 194 Countries, Lancet 372 (2008), pp. 2047-2085.
128. For this type of political analysis of health determinants and systems
129. V. Navarro, The Political and Social Contexts of Health (Amityville, NY: Baywood Publishing Co, 2004).
130. ESCR Committee (see note 32), para. 43. 100. ESCR Committee (see note 32), para. 17.
131. Daniels, "Accountability for Reasonableness" (see note 50);
132. Daniels, Just Health: Meeting Health Needs Fairly (see note 50).
133. J. Leland, "Sheriff in Chicago Ends Evictions in Foreclosures," New York Times, October 8, 2008. Available at http://www.nytimes.com/2008/10/09/us/09chicago.html?ref=business.
134. Note that rights - and even justice - need not be the only ground on which we rely to deter-mine the "right" course of action. Justice and mercy are deeply intertwined, as recognized in the common law through the provision of legal remedies (justice) and equitable remedies (mercy), as well as in Biblical texts.