EXPLORING THE CULTURAL DIMENSIONS OF THE RIGHT TO THE HIGHEST ATTAINABLE STANDARD OF HEALTH

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the Elimination of All Forms of Discrimination Against Women (hereafter the CEDAW Committee) and the Committee on the Rights of the Child (hereafter the CRC Committee) have in a joint General Recommendation stated that sex-and genderbased stereotypes, inequalities and discrimination, as well as harmful traditional practices such as female genital mutilation, forced marriages, polygamy and crimes in the name of honour, have a negative impact on the health of people and should be combatted by States. 10 In other words, it seems that international human rights law demands respect for the cultural dimensions of the right to health, while at the same time requiring the protection of the right to health against negative aspects of cultures. How does this work out in practice? What does the concept of "culturally appropriate" health goods and services mean at the national or local level? Who decides on what is or is not culturally appropriate? Another, broader question is to what extent such respect for cultural diversity can be reconciled with the universality of the right to health. In recent years it has been acknowledged that the universal value and application of international human rights does not imply the uniform implementation of these rights. 11 In relation to the right to health, it is universally accepted, irrespective of culture, that all people everywhere have a right to health and that States are obliged to provide health care and to protect people from threats to their health. At the same time, it is clear that the right to health cannot and does not have to be implemented in the same way universally, because States are very diverse in terms of their available resources, as well as their cultural, social and historical backgrounds. 12 preference and its implications for the status of the girl child; female infanticide; early pregnancy; and dowry price". (OHCHR date unknown http://goo.gl/hhSgKk).
The implementation of the right to health accordingly allows for variety in laws, policies and measures, taking into account the local context and circumstances. The margin of discretion left to States to pursue a context-sensitive implementation of the right to health is not absolute, however. The accommodation of cultural differences in relation to the right to health, as well as the protection of the right to health against obstacles to its enjoyment, is subject to international supervision.
How have international supervisory bodies precisely dealt with the various cultural dimensions of the right to health? How have they elaborated on and interpreted the freedoms and entitlements of the right to health of individuals and the obligations of States Parties arising from the treaties in this regard?
This article explores the cultural dimensions of the normative content of the right to health. 13 It analyses several treaty provisions and in particular the interpretation of these provisions by the treaty monitoring bodies. Apart from several UN treaties, notably the ICESCR, the article also addresses several regional treaties in Africa, notably the African Charter on Human and Peoples' Rights. 14 Many African States have vast problems in protecting the right to health because of severe health challenges, such as weak and fragmented health systems; inadequate resources; the burden of infectious diseases, recurrent natural and manmade disasters and emergencies; and extreme poverty. 15 Some of these challenges are linked to the cultural dimensions of the right to health. It may further be interesting to see to what extent the monitoring of the right to health at regional level, compared to the universal level, provides different or more precise insights into its cultural dimensions. 13 For detailed elaborative work on the right to health, see inter alia Tobin Right to Health; Toebes et al Health and Human Rights; Toebes Right to Health; Chapman "Core Obligations". Also see the work of the UN Special Rapporteur on the Right to Health (OHCHR 2015 http://goo.gl/alggMk) as well as the work done by the World Health Organization (WHO) (WHO 2015 http://www.who.org). 14 African Charter on Human and Peoples' Rights (1981). 15 WHO Regional Office for Africa Health of the People xxiii.

The right to health in UN human rights treaties
The right to the highest attainable standard of health is included in several universal human rights instruments. The most comprehensive provision on the right to health is included in Article 12 of the ICESCR. This provision reads as follows: 1. 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. 2. The steps to be taken by the States Parties to the present Covenant to achieve the full realization of this right shall include those necessary for: (a)The provision for the reduction of the stillbirth-rate and of infant mortality and for the healthy development of the child; (b) The improvement of all aspects of environmental and industrial hygiene; (c) The prevention, treatment and control of epidemic, endemic, occupational and other diseases; (d) The creation of conditions which would assure to all medical service and medical attention in the event of sickness.
The right to health is also included in human rights instruments for specific groups, often referred to as vulnerable or disadvantaged groups, such as women, children, minorities and indigenous peoples.

Article 12 of the Convention on the Elimination of All Forms of Discrimination Against
Women 16 (hereafter the CEDAW) promotes the elimination of discrimination against women in the field of health and equal access to health care services, including those related to family planning. Special attention is paid to providing appropriate services in relation to pregnancy, confinement and the post-natal period. The CEDAW also contains a specific provision on the elimination of stereotypes and prejudices regarding women that may impede their rights, including their right to health. Article 5(a) provides that States Parties shall take all appropriate measures … to modify the social and cultural patterns of conduct of men and women, with a view to achieving the elimination of prejudices and customary and all other practices which are based on the idea of the inferiority or the superiority of either of the sexes or on stereotyped roles for men and women.
The right to the highest attainable standard of health and to access facilities for the treatment of illness and the rehabilitation of health is also included in Article 24 of 16 Convention on the Elimination of All Forms of Discrimination Against Women (1979). Treaty bodies also adopt so-called General Comments or General Recommendations in which they comment on specific treaty provisions or elaborate on the relationship between the treaty and specific themes or issues. These General Comments reflect the experience of the treaty bodies gained from the reporting and complaints procedures. General Comments and Recommendations are not legally binding, but they provide an authoritative interpretation of the treaty in question. 22 The practice of various treaty monitoring bodies is analysed below to see how they have elaborated on the cultural dimensions of the right to health.

General comments and recommendations
As indicated in the introduction, the ESC Committee has explicitly recognised one of the cultural dimensions of the right to health. In its General Comment on Article 12 of the ICESCR it has described the different interrelated elements of the right to health, namely accessibility, availability, acceptability and quality, "…the precise application of which will depend on the conditions prevailing in a particular State party". 23  In relation to women, the ESC Committee has acknowledged their vulnerability to harmful traditional and/or cultural practices, in particular in relation to sexual and reproductive rights. It has urged States Parties to undertake preventive, promotive and remedial action to shield women from the impact of harmful traditional cultural practices and norms that deny them their full reproductive rights. 31 The ESC Committee has maintained that the failure to discourage the continued observance of harmful traditional medical or cultural practices is a violation of the obligation to protect. 32 The CEDAW Committee has noticeably also addressed the obstacles that women face to their enjoyment of the right to health, in particular in relation to sexual and reproductive health. Violations of women's right to health, such as a lack of access to health goods and services, are often justified by references to culture or religion, or they are caused by persistent cultural patterns, stereotypes or cultural practices, as addressed by Article 5 of the CEDAW. The CEDAW Committee specified in its General Recommendation on the right to health that this right implies that States Parties should assess the health status and needs of women and "… take into account any ethnic, regional or community variations or practices based on religion, tradition or culture". 33 States Parties should furthermore show how they address specific factors in relation to health goods and services, which differ for women in comparison with men. These factors not only include biological ones, but also socio-economic factors, including cultural or traditional practices, in particular FGM. 34 The CEDAW Committee also Examples of such measures were the collection of data about these and other practices harmful to women, support for organisations working for the elimination of these practices, and the introduction of educational programmes about the problems arising from FGM. 36 The CRC Committee has also addressed the different cultural dimensions of the right to health. In its General Comment on adolescent health and development, the CRC Committee followed the ESC Committee in identifying as one of the characteristics of the right to health for adolescents that it should be acceptable, meaning that … all health facilities, goods and services should respect cultural values, be gender sensitive, be respectful of medical ethics and be acceptable to both adolescents and the communities in which they live. 37 Apart from the accommodation of specific cultural needs in relation to the right to health, the CRC Committee has also addressed the protection of the right to health against cultural practices and the removal of obstacles to its enjoyment. In this violence and the need for a holistic approach to combat these. 40 The CRC Committee also adopted a General Comment on indigenous children in which it emphasised their rights to enjoy their own culture. It urged States Parties to take special measures to ensure that indigenous children "…have access to culturally appropriate services in the areas of health…" 41 It has also noted that States Parties should work to ensure that "…health-care services are culturally sensitive and that information about these is available in indigenous languages." 42 Special attention has been paid to the role of traditional medicine and health care workers. According to the CRC Committee, preference should be given to the employment of local, indigenous community workers, and they should be provided with the necessary means and training "in order to enable that conventional medicine be used by indigenous communities in a way that is mindful of their culture and traditions". 43 At the same time, the CRC Committee has maintained that harmful practices, mentioning early marriages and female genital mutilation, should be eradicated. 44 In the light of the fact that both the women's rights convention and the children's rights convention contain legally binding obligations concerning the elimination of harmful practices, the CEDAW Committee and the CRC Committee adopted a joint From the above it can be concluded that the different cultural dimensions of the right to health as incorporated in international treaties are broadly recognised by the treaty monitoring bodies. There are, broadly speaking, two sorts of cultural dimensions. Firstly, there is the promotion of the cultural dimensions of the right to health, reflected in the concepts of the cultural appropriateness or cultural sensitivity of health goods and services. This implies that the proper promotion and protection of the right to health requires that health goods and services are respectful of cultural differences and that traditional treatment and medication are respected and protected. Secondly, there is the protection of the right to health against certain cultural approaches or practices. This implies that the proper promotion and protection of the right to health requires that cultural patterns and stereotypes that form an obstacle to the enjoyment of the right to health and cultural practices that are harmful to health should be eradicated.

Concluding Observations
The different cultural dimensions of the right to health have also been addressed by the treaty monitoring bodies in their Concluding Observations on State reports. For this article, the Concluding Observations of the ESC Committee, the CEDAW Committee and the CRC Committee, as adopted in the period of 2008-2014, were studied, using the key words of health, culture, tradition and religion. 46 The analysis firstly shows that, despite the explicit attention given to culture and health in the General Comments and Recommendations as discussed above, the cultural dimensions of the right to health are not often nor consistently addressed in the Concluding Observations. Explicit references to the cultural appropriateness of health goods and services, for instance, were scarcely found. Much more attention was paid to the eradication of cultural patterns and stereotypes, as well as cultural practices that impede the enjoyment of the right to health. 46 The individual complaint procedures of the ICESCR and the CRC have only recently entered into force and the Committees have not yet dealt with individual cases; the views on individual complaints adopted by the CEDAW Committee until 2014 did not explicitly address the cultural dimension of the right to health.
The instances where the cultural dimensions of the right to health were addressed show a large variety of situations. They are discussed below under three headings representing three types of State obligations, realising that these often overlap: 1) to ensure equal access to health goods and services, if need be by implementing special measures for certain cultural communities, such as minorities and indigenous peoples; 2) to respect and protect culture-specific health goods and services, including traditional treatments and medicines, in particular of indigenous peoples; 3) to combat stereotypes and eradicate harmful cultural practices that impede the right to health.

Special measures to ensure equal access to health goods and services
General equal access to health goods and services is often discussed in the evaluation of the State reports under the ICESCR. Sometimes States Parties are encouraged to improve access for certain cultural groups and communities, including indigenous peoples 47 , minorities 48 , Roma 49 and immigrants, 50 whereby the specific cultural or religious needs of these groups are addressed. For instance in the case of Afghanistan, the ESC Committee noted with concern the failure of the health system to respond adequately to the needs of women, and the lack of a gender-sensitive approach in health services. discrimination. 57 Migrant women have also been mentioned. 58 Sometimes, for instance in relation to Peru, the Committee commended the inclusion of an "intercultural perspective" in access to sexual and reproductive health, but still recommended that the State Party eliminate cultural and other barriers faced by women in gaining access to health services, and strengthen its "intercultural approach" to the provision of health services. 59 In the case of Belgium the CEDAW Committee expressed concerns at the possible impact of the ban on wearing headscarves in public hospitals on access to these institutions and asked the State Party to monitor that. 60 The CEDAW Committee also expressed its concern about the excessive or abusive use of the conscientious objection clause by medical personnel in order not to carry out abortions. 61 The Concluding Observations of the CRC Committee also frequently deal with general access to health goods and services, recommending States Parties to  The CEDAW Committee and the CRC Committee do not often include a reference to culture-specific health goods and services in their Concluding Observations. They  The ESC Committee has further expressed its concern about the prevailing phenomenon of early and forced marriages in several States Parties, which it considers to have negative impacts on the right to health, in particular reproductive rights. 81 In the case of India, for instance, it argued that this practice could be attributed largely to the lack of sex and reproductive education, which is still viewed to be taboo in India. 82 Early marriages were also discussed with Sri Lanka, where the ESC Committee noted that although the age for marriage in statutory law is 18 years old, girls as young as 12 years are able to marry under customary law, as long as the parents give their consent. 83  The ESC Committee has further criticised the fact that some States Parties use religion or culture as a pretext not to implement certain provisions of the Covenant.
In the case of Iran, for instance, the Committee observed that the Constitution of Iran subjects the enjoyment of many rights to restrictions such as "provided it is not against Islam" or "with due regard to Islamic standards". The Committee argued that such restrictive clauses negatively affect the application of the Covenant, including the right to health. 86 The CEDAW Committee, referring inter alia to Article 5 of its treaty, has on many occasions dealt with issues of social and cultural patterns, prejudices and harmful practices that impede the right to health or equal access to health goods and services. The CEDAW Committee has often criticised patriarchal societies in which men dominate women in areas of health and has urged States Parties to change these patterns that prevent women from enjoying their rights. For instance, in the case of Zambia the CEDAW Committee expressed its concern about the persistence of "unequal power relations between women and men and the inferior status of women and girls", which negatively affected their health situation. 87  Similar concerns were expressed in relation to other States Parties. In relation to Afghanistan, the CEDAW Committee noted its concern about … deep patriarchal attitudes and cultural beliefs which limit women's freedom of movement and prevent them from being treated by male doctors and that women's access to contraceptives is subject to their husbands' authorization. 91 It therefore urged the State Party to "conduct awareness raising campaigns to eliminate patriarchal attitudes and cultural beliefs which impede women's free access to health services and contraceptive methods". 92 In the case of Paraguay and Costa Rica, the CEDAW Committee expressed its concern about … the persistence of discriminatory traditional attitudes and the prevailing negative influence of some manifestations of religious beliefs and cultural patterns in the State Party that hamper the advancement of women's rights, in particular sexual and reproductive health and rights. 93 In similar terms, the CEDAW Committee urged Ghana to "raise community awareness with regard to negative cultural beliefs" and to ensure that women have culture has a negative impact on the enjoyment of the right to health. UN treaty monitoring bodies have extensively dealt with cultural practices harmful to people's health, and with cultural attitudes and stereotypes obstructing the right to health.
They have identified several practices that they consider to be so harmful that they should be eradicated, recommending a multifaceted approach involving not only adopting legislation but also measures in the field of education, awareness-raising and sensitisation.
Some criticism has been expressed about the way that UN treaty monitoring bodies have defined harmful practices and have selected practices within this category. It is argued that the list of harmful practices includes almost exclusively practices that originate from non-Western cultural traditions. Some have therefore accused the UN treaty bodies of being biased in their assessment of traditional practices, having a too Western-centric vision of these practices. 111 It is therefore interesting to see how a non-Western regional human rights system, namely the African system, has dealt with these issues. To what extent do African human rights treaties and African monitoring bodies interpreting these treaties take a different approach?

The right to health in African human rights treaties
In the African Charter on Human and Peoples' Rights the right to health is included in Article 16, which reads as follows: 1. Every individual shall have the right to enjoy the best attainable state of physical and mental health. 2. States parties to the present Charter shall take the necessary measures to protect the health of their people and to ensure that they receive medical attention when they are sick.
Special attention is paid to the health of women in the African human rights system. reference to the cultural dimension of these health-related rights. Culture is mentioned, however, in relation to violence against women, which clearly has a link with health. In Article 4(1)d of the Protocol, States Parties are called upon to actively promote the eradication of traditional and cultural beliefs, practices and stereotypes which legitimise and exacerbate the persistence and tolerance of violence against women.

Rights
The

Statements and Recommendations
The statements and recommendations of the African Commission have broadly followed the approach taken by the UN treaty monitoring bodies discussed above.
For instance, in its Resolution on Access to Health and Needed Medicines in Africa, the African Commission followed the approach of the ESC Committee as regards the right to health and repeated that the acceptability of health services includes the acceptability of supplies of medicines, "being respectful of cultural norms and 112 The African human rights system also has an African Court of Justice and Human Rights, established by the Protocol to the African Charter on Human and Peoples' Rights on the Establishment of an African Court on Human and Peoples' Rights, adopted in June 1998. The Protocol came into force on 25 January 2004 after it was ratified by more than 15 countries. The Court started its work in 2006 and it has since 2008 dealt with several cases. Since none of these cases concern health, they are not dealt with here.

State reports and Concluding Observations
The reports by the African Commission and its working groups show that it has not (yet) extensively dealt with the cultural dimensions of the right to health. When discussed, the issues appear to be similar to those described above, focusing on access to health services and medicine on a non-discriminatory basis;, special attention for the particular health goods and services of indigenous peoples, and the eradication of harmful traditional practices, notably FGM. The analysis shows that UN and African treaty monitoring bodies have recognised and addressed these different dimensions. They have, for instance, adopted the notion that health policies, goods and services should be "culturally appropriate" or "culturally sensitive". From the practice of these bodies several obligations of States can be induced that fall within these notions. These obligations include the adoption and implementation of special measures for cultural communities to ensure equal access to health goods and services and the recognition and protection of specific health goods and services of cultural communities. At the same time, the notion of "cultural appropriateness" should not be interpreted as providing the possibility to unjustifiably limit the enjoyment of the right to health. Therefore, States are also obliged to take measures to modify social and cultural patterns and eliminate prejudices and stereotypes that prevent certain individuals or groups of individuals,