Substantive obligations arising from that to report under Article 12

States’ obligation to report on the implementation of the rights enshrined in the ICESCR is procedural in nature, and is recognised in Articles 16 and 17 of the Covenant.²⁵⁸ However, substantive obligations arise from the obligation to report, as witnessed in the documents and practice of the UN Committee. Since these contribute to clarifying the legal content of the right to health, and more particularly the nature of states’ obligations to realise it, it is worth studying them. One substantive requirement in particular emerges from the UN Committee’s 1993 Rules of Procedure,²⁵⁹ GC14,²⁶⁰ and its 2009 reporting guidelines:²⁶¹ i.e. states’ obligation to collect (specific) data. Similar observations can be drawn from the reporting procedure on Article 12 ICESCR, in which the UN Committee often expresses its concern over the absence of information on certain health issues, and asks states to provide data in the next reporting cycle. When discussing how the UN Committee substantively interpreted the obligation to report under Article 12, I will thus, first (2.3.3.1), demonstrate the existence of an obligation to collect data; and second (2.3.3.2), explore the specificity of the data that states must submit and, thus, collect.

2.3.3.1 The obligation to collect data

The obligation upon States parties to the ICESCR to submit data on their performance in the field of healthcare clearly aims at achieving two goals. The first goal is the most explicit: the submission of data enables the UN Committee to monitor how states implement the right to health. The UN Committee can then evaluate states’ efforts to fulfil the highest standard of health attainable, and the timeframe in which such progress is achieved (progressively, immediately).

However, the focus remains on the monitoring role of the UN Committee.

258 ICESCR (n 4), Art 16 and 17.

259 UNCESCR, ‘Rules of Procedure’ (n 98), rules 58 to 64.

260 UNCESCR, ‘GC14’ (n 21).

261 UNCESCR, ‘Guidelines on Treaty-Specific Documents to Be Submitted by States Parties under Articles 16 and 17 of the ICESCR’ (2009) UN Doc. E/C.12/2008/2, paras 55–57 on Article 12.

The second goal is more implicit and yet crucial: the obligation to submit data forces States parties to collect it in the first place. Such a goal gives a substantive meaning to the obligation, as it focuses on what states ought to do at the domestic level to realise the right to health. It suggests, as argued by Alston, that states are primarily accountable for devising adequate means to implement the right to health.²⁶² This has been implicitly recognised by the UN Committee. In its Concluding Observations on Moldova, for instance, it expressed concern over the absence of disaggregated data regarding certain vulnerable groups, urging the state to establish an appropriate system of data collection.²⁶³

Data collection is essential to build and maintain appropriate health systems, as it is the only way for states to detect inadequacies and to thus address them. This is especially relevant in the context of disaggregated data, as it facilitates the identification of health discrimination perpetuated against disadvantaged groups. The obligation to collect data – rather than to submit data – therefore contributes significantly in defining the legal content of the right to health in that respect. A state cannot be complying with Article 12 without knowing whether the number and repartition of hospitals across its territory is sufficient, for example. Finally, while it is fundamental that states carry out data collection, it is equally fundamental that this process leads to accurate and reliable results. The UN Committee has expressed its dissatisfaction when this was not the case.²⁶⁴

2.3.3.2 The obligation to collect specific data

Analysing the 2008-2012 sample of Concluding Observations enabled me to observe that the UN Committee clearly expects states to submit and, thus, collect specific

262 Alston 1987 (n 152) 357.

263 UNCESCR, ‘Concluding Observations on Republic of Moldova’s Second Periodic Report’ (2011) UN Doc E/C12/MDA/CO/2, para 6: ‘The Committee recommends that the State party take urgent measures to establish a system for the collection and monitoring of annual data on Covenant rights, disaggregated by disadvantaged and marginalized individuals and groups, including (although not exclusively) Roma, persons with disabilities, persons living with HIV/AIDS and non-citizens’.

264 E.g. UNCESCR, ‘Concluding Observations on Turkmenistan’s First Periodic Report’

(2011) UN Doc E/C12/TKM/CO/1, para 23: ‘The Committee urges the State party to review the collection of statistical information with regard to health issues’.

information when reporting on the implementation of Article 12. It repeatedly expresses its concern over lack of qualitative, quantitative, and disaggregated data.

Such data is informative of how the UN Committee expects states to perform and thus, the nature of their obligations under the right to health.

Firstly, the UN Committee requires that states provide both qualitative and quantitative data to demonstrate their efforts in the field of healthcare.

The UN Committee often requests that states provide and thus collect quantitative information. It regularly requires ‘statistical’ and ‘comparative’ data, in order to evaluate states’ performance in healthcare through figures and over periods of time.²⁶⁵ Finally, it may ask states to use indicators and benchmarks,²⁶⁶ or to report on the percentage of their gross domestic product allocated for healthcare.²⁶⁷

The UN Committee also frequently requires that states provide qualitative data, and thus collect it in the first place. It may request that they submit ‘updated and detailed information’²⁶⁸ describing measures taken in the field of healthcare. It often asks states to provide information on measures such as strategies,²⁶⁹ programmes,²⁷⁰ or legislation.²⁷¹

265 E.g. UNCESCR, ‘Concluding Observations on New Zealand’s Third Periodic Report’

(2012) UN Doc E/C12/NZL/CO/3, para 28; UNCESCR, ‘Concluding Observations on Brazil’s Second Periodic Report’ (2009) UN Doc E/C12/BRA/CO/2, para 29.

266 E.g. UNCESCR, ‘Concluding Observations Sri Lanka 2010’ (n 187), para 30.

267 E.g. UNCESCR, ‘Concluding Observations on India‘s Second to Fifth Periodic Reports’

(2008) UN Doc E/C12/IND/CO/5, paras 33 and 73 (however, such requests are rare).

268 E.g. UNCESCR, ‘Concluding Observations on Turkey’s First Periodic Report’ (2011) UN Doc E/C12/TUR/CO/1, para 33.

269 E.g. UNCESCR, ‘Concluding Observations on Mauritius’ Combined Second to Fourth Periodic Reports’ (2010) UN Doc E/C12/MUS/CO/4, para 29: request for further information on strategies implemented to combat chronic diseases, especially diabetes, tobacco use, and obesity.

270 E.g. UNCESCR, ‘Concluding Observations on Angola’s Combined First to Third Periodic Report’ (2008) UN Doc E/C12/AGO/CO/3, para 36: request for further information on programmes implemented to provide universal access to healthcare.

271 E.g. UNCESCR, ‘Concluding Observations on Poland’s Fifth Periodic Report’ (2009) UN Doc E/C12/POL/CO/5, para 28: request for further information on legislation implemented to address unsafe abortions.

This approach is implicitly recognised by the reporting guidelines of the UN Committee, when reading the list of data that it requests states to provide.²⁷² Using both qualitative and quantitative data enables the UN Committee to carry out an in-depth analysis, by evaluating the implementation of the right to health in figures, and understand failures or successes in words. However, requests to provide quantitative and qualitative data are irregularly formulated in the reporting procedure.

Secondly, the UN Committee often asks for disaggregated data in order to identify potential health discrimination.

The UN Committee evaluates data on a wide range of disaggregated grounds in its Concluding Observations. It often requests data disaggregated by geographic area (per regions or per urban/rural areas),²⁷³ by sex,²⁷⁴ age,²⁷⁵ ethnicity,²⁷⁶ religion,²⁷⁷ or

‘any prohibited ground of non-discrimination’.²⁷⁸ It has also requested that states provide disaggregated data regarding Roma people, persons living with HIV/AIDS, persons with disabilities, and non-nationals.²⁷⁹

The necessity to provide disaggregated data is required by the UN Committee in both GC14,²⁸⁰ and its reporting guidelines.²⁸¹ This approach also enables the UN Committee to identify potential health discrimination, prohibited by the principle of non-discrimination enshrined in Article 2(2) ICESCR.²⁸² Nevertheless, requests to provide disaggregated data are irregularly formulated in the reporting procedure of the UN Committee.

272 UNCESCR, ‘ICESCR Reporting Guidelines 2009’ (n 261), para 3.

273 E.g. UNCESCR, ‘Concluding Observations Peru 2012’ (n 178), para 20.

274 E.g. UNCESCR, ‘Concluding Observations Kazakhstan 2010’ (n 247), para 32.

275 E.g. UNCESCR, ‘Concluding Observations Turkmenistan 2011’ (n 264), para 22.

276 E.g. UNCESCR, ‘Concluding Observations Brazil 2009’ (n 265), para 11.

277 E.g. UNCESCR, ‘Concluding Observations India 2008’ (n 267), para 58(e).

278 E.g. UNCESCR, ‘Concluding Observations Russia 2011’ (n 221), para 37.

279 E.g. UNCESCR, ‘Concluding Observations Moldova 2011’ (n 263), para 6.

280 UNCESCR, ‘GC14’ (n 21), paras 16, 20, 57, and 63.

281 UNCESCR, ‘ICESCR Reporting Guidelines 2009’ (n 261), para 3(g).

282 ICESCR (n 4), Art 2(2).

Thirdly, the UN Committee asks states to provide data on a wide range of health issues.

GC14 specifies that it aims at assisting states in fulfilling their reporting obligations under Article 12, but does not mention what information states must collect before submitting their reports.²⁸³ The 2009 reporting guidelines of the UN Committee, however, are quite specific and list twelve health issues that states must report against.²⁸⁴ These issues, nonetheless, are not consistently monitored for each country, which emphasises the need for the UN Committee to adopt a set of thematic indicators.

In practice, the UN Committee often requires that states provide information on broad health issues. These can include: life expectancy of the population;²⁸⁵ mental health²⁸⁶ (e.g. suicide,²⁸⁷ conditions of mental health patients);²⁸⁸ or SRH²⁸⁹ (e.g.

abortion services).²⁹⁰ Information can also be frequently requested on issues such as:

substance abuse (e.g. drug consumption and availability of dependence therapy);²⁹¹ accessibility and affordability of water and sanitation;²⁹² prevalence of HIV/AIDS;²⁹³ or occupational health.²⁹⁴

283 UNCESCR, ‘GC14’ (n 21), para 6.

284 UNCESCR, ‘ICESCR Reporting Guidelines 2009’ (n 261), paras 55–57 (on Article 12).

285 E.g. UNCESCR, ‘Concluding Observations Brazil 2009’ (n 265), para 11.

286 E.g. UNCESCR, ‘Concluding Observations Kazakhstan 2010’ (n 247), para 32.

287 E.g. UNCESCR, ‘Concluding Observations on France’s Third Periodic Report’ (2008) UN Doc E/C12/FRA/CO/3, para 48.

288 E.g. UNCESCR, ‘Concluding Observations on Uruguay’s Combined Third and Fourth Periodic Report’ (2010) UN Doc E/C12/URY/CO/3-4, para 26.

289 E.g. UNCESCR, ‘Concluding Observations New Zealand 2012’ (n 265), para 28(d).

290 E.g. UNCESCR, ‘Concluding Observations Poland 2009’ (n 271), para 28.

291 E.g. UNCESCR, ‘Concluding Observations on Hungary’s Third Periodic Report’ (2008) UN Doc E/C12/HUN/CO/3, para 49.

292 E.g. UNCESCR, ‘Concluding Observations Turkey 2011’ (n 268), para 33(b).

293 E.g. UNCESCR, ‘Concluding Observations on Chad’s Combined First to Third Periodic Report’ (2009) UN Doc E/C12/TCD/CO/3, para 29.

294 E.g. UNCESCR, ‘Concluding Observations Turkey 2011’ (n 268), para 33(a).

The UN Committee also regularly requires that states provide, and thus collect, information on health issues specific to vulnerable groups. These can include: access to health for vulnerable groups in general,²⁹⁵ or more particularly, for persons with disabilities,²⁹⁶ persons living with HIV/AIDS,²⁹⁷ and for the poorest sectors of the populations (e.g. poverty-related diseases).²⁹⁸