2.1. International Human Rights Law, Principles and Standards
The modern international human rights framework is built on the Charter of the United Nations, which establishes that one of the main purposes of the organization is to achieve international cooperation “in promoting and encouraging respect for human rights and for fundamental freedoms for all without distinction as to race, sex, language or religion” [
10] (article 1). All 193 members of the UN have pledged to promote universal respect for, and observance of, human rights [
10] (article 1). These rights are further detailed in the Universal Declaration of Human Rights, which was adopted by the UN General Assembly in 1948 [
11]. The Universal Declaration is the most widely known pronouncement of fundamental human rights around the world. Subsequently, human rights were codified in a several international human rights treaties imposing legal obligations on the countries that ratify them.
There are several essential features of human rights as they are set out in these international instruments. First, human rights are universal, meaning that all people everywhere are entitled to human rights [
12]. Second, international human rights law provides that all people are born equal in dignity and rights and that they are entitled to all rights without discrimination on the basis of race, color, sex, language, religion, political or other opinion, national or social origin, property, birth or other status [
11] (articles 1,2). Third, people are entitled to take part in public affairs and to have meaningful input into the public decisions that affect their lives [
11,
13]. Fourth, people are entitled to hold their governments accountable for ensuring their human rights and to an effective remedy when these rights are violated [
11,
13]. Finally, all human rights are inter-related and interdependent, meaning that the realization of one right, such as the right to education, increases the opportunities for exercising more fully other rights, such as the rights to health and to work [
12]. In sum, universality, equality and nondiscrimination, participation, accountability and interdependency are overarching human rights principles, based in international human rights law, that provide a legitimate and coherent basis for policy and other decision making.
In addition to these overarching principles—based in international human rights law—the human right that is most relevant to HIA is the right to the highest attainable standard of mental and physical health, also known as the “right to health”. In 1946, the Constitution of the World Health Organization was the first international instrument to declare that “[t]he enjoyment of the highest attainable standard of health is one of the fundamental rights of every human being without distinction of race, religion, political belief, economic or social condition” [
14]. In 1948, the Universal Declaration of Human Rights recognized that “everyone has the right to a standard of living adequate for the health and well-being of himself and of his family, including food, clothing, housing and medical care and necessary social services” [
11] (article 25). Notably, all members of the UN are required to go before the UN Human Rights Council every four years to report upon their progress in implementing their international human rights obligations, including those rights enshrined in the Universal Declaration.
The right to the highest attainable health has also been codified in several international human rights treaties, including the International Covenant on Economic, Social and Cultural Rights (ICESCR) and the Convention on the Rights of the Child, that impose legal obligations upon the countries that ratify—in other words—sign and assent to—them [
15,
16]. All but two countries in the world—the United States and Somalia—have ratified the Convention on the Rights of the Child, and 166 countries have ratified the ICESCR. In essence, the right to health is a universally recognized human right. The most detailed provision on the right to health is in the ICESCR. It provides that all parties to the Covenant shall take steps to achieve the full realization of the right to health by, among other means, reducing infant mortality, improving environmental and occupational health, preventing and treating epidemics and occupational diseases, and ensuring health care services to all [
15] (article 12).
In 2000, the Committee on Economic, Social and Cultural Rights, the UN body responsible for monitoring implementation of the ICESCR, issued a general comment providing further details on the right to health. The comment clarifies that the right to health is not a right to be healthy, but rather a right to a health system—including health care and the underlying determinants of health—that provides the opportunity for people to attain the highest possible standard of health [
17] (paragraph 8). Like other complex rights, the right to health encompasses a bundle of procedural and substantive rights. For example, the right to a fair trial includes the right to an attorney, the right to cross-examine witnesses who testify against you and the right to remain silent. It does not guarantee a verdict of “not guilty” but rather is intended to make the outcome of the trial fairer. Similarly, the right to health encompasses a number of rights—like the rights to nutritious food and potable water, the right to essential medicines, the right to health information and the right to participate in health policymaking, among others—that all contribute to making health outcomes fairer. Importantly, the general comment provides that the government has the obligation to ensure that health care and the underlying determinants of health are available, accessible, acceptable and of good quality [
17] (paragraph 12).
Availability means that public health and health care facilities, goods and services must be available in sufficient quantity in the country.
Accessibility has four dimensions. It means that health care and the underlying determinants of health must be (1) accessible to all on a nondiscriminatory basis; (2) physically accessible and within safe physical reach of all sections of the population; and (3) economically accessible and affordable for all. Additionally, health information must be accessible to all, and people have a right to seek, receive and impart health information.
Acceptability means that health care and the underlying determinants of health must be respectful of medical ethics, culturally appropriate and gender sensitive.
Quality means that health care and the underlying determinants of health must be scientifically and medically appropriate and of good quality, including, for example, skilled health care personnel, scientifically approved drugs and hospital equipment, safe water and adequate sanitation [
17] (paragraph 12).
The 166 countries that are parties to the ICESCR must report to the Committee on Economic, Social and Cultural Rights on a regular basis on their implementation of the Covenant, including their progress in ensuring the full realization of the right to the highest attainable standard of health. Moreover, under a new procedure established in 2013, people may bring complaints to the Committee when they believe that their rights, including the right to health, have been violated. Similarly, there is a Committee on the Rights of the Child that oversees implementation of the Convention on the Rights of the Child and the child’s right to the highest attainable standard of health and requires all 193 parties to report regularly on their progress in doing so.
The human rights principles of universality, equality and nondiscrimination, participation, accountability and interdependency, together with the right to health framework of availability, accessibility, acceptability and quality, provide a human rights framework for assessment of policy, program and project proposals. This framework is widely accepted around the world and entrenched in international human rights law with multiple international and domestic mechanisms of accountability, including the UN Human Rights Council, the human rights committees and domestic courts. As almost all countries are bound by these laws, principles and standards, they provide a legitimate ethical and legal framework for health impact assessment.
2.2. Human Rights Impact Assessment
While HIA has developed over the past three decades in three areas of public health—environmental health, social determinants of health and health equity—human rights impact assessment (HRIA) has evolved along a separate path largely disconnected from these public health efforts. At the international level, as early as 1979, the Secretary General of the United Nations recommended considering “the practicability of requiring a ‘human rights impact statement’, which might be similar in concept to an environmental impact statement, to be undertaken prior to the commencement of specific development projects or in connexion with the preparation of an overall development plan or programme” [
18] (p. 160). It was not until 1994, however, that public health and human rights impact assessment were linked by Lawrence Gostin and Jonathan Mann in an article describing a methodology for assessing the human rights effects of public health policies [
19]. In their article, public heath policies were viewed as potentially at odds with civil and political human rights. At that time, the importance of civil and political rights was widely acknowledged by health advocates, however, economic and social rights were comparatively little known [
20].
Since Gostin and Mann’s pioneering article, HRIA has evolved considerably. One reason for the great changes in health-related HRIA is that the right to health has been defined in much more detail since 1994. While the right to health encompasses traditional civil and political rights, like the rights to confidentiality and the right to participate in health policy decision-making, it also has economic, social and cultural aspects, such as the right to health care without great financial risks and the right to respect for diverse cultures in health care delivery. Notably, the right to health includes both public health and heath care elements. In addition to the continued “unpacking” of the right to health, health-related HRIA has also developed considerably since 1994 because nongovernmental organizations (NGOs) have taken up this method to hold governments accountable for the human rights impacts of their decisions.
For example, a Canadian NGO called Rights and Democracy developed one of the first HRIA methodologies in 2004 to assess human rights impacts of foreign direct investment projects. Its methodology integrates a human rights-based approach by assuring transparency, accountability and nondiscrimination, focusing on vulnerable groups and recognizing the indivisibility of human rights [
21]. One of the most prominent examples of HRIA in the health context is the Health Rights of Women Assessment Instrument (HeRWAI) developed by a group of NGOs in the Netherlands, Kenya, Malaysia, Nicaragua and Bangladesh as an advocacy tool to bolster international mechanisms for monitoring state accountability for women’s rights [
22]. The HeRWAI tool uses human rights standards from the ICESCR and the Convention of the Eliminations of Discrimination Against Women within a step-wise HIA approach to identify how women’s rights are affected, elaborate government commitments and develop recommendations to enhance women’s health rights [
23]. NGOs around the world have used HeRWAI as the basis for their advocacy efforts [
22].
Stand-alone HRIA methodologies of this type are particularly well suited to human rights NGOs, human rights commissions and others that are unlikely to carry out other types of impact assessment [
24,
25]. Additionally, human rights scholars and practitioners have recommended that governments in particular, integrate human rights into the other forms of impact assessment, including HIA [
9,
24,
25,
26]. Public health scholars have also given specific attention to the links between health and human rights, as well as between HIA and HRIA, recognizing such tools as capable of predicting the health and human rights consequences of proposed public policies in a range of domains including international relations and foreign policy [
7,
20,
27].
2.3. Integrating Human Rights into Health Impact Assessment (HIA)
The idea of integrating human rights into other forms of impact assessment, in particular HIA, was raised by public health scholars O’Keefe and Scott-Samuel over a decade ago and a few years later again by Paul Hunt, then UN Special Rapporteur on the right to health [
20,
28]. The so-called “mainstreaming approach” offers a number of advantages over stand-alone HRIA. First, as HRIA is a comparatively new methodology, by integrating human rights into HIA, human rights practitioners could take advantage of HIAs more established expertise and methodologies [
24,
25].
Additionally, governments or other entities that are already carrying out HIAs are not likely to want to take on the further burden of carrying out another type of impact assessment. In such cases, it may make more sense to integrate human rights into HIA or the other types of impact assessment already being carried out. [
8,
24]. Third, the mainstreaming approach, when carried out by governments, is also an appropriate means for meeting their international human rights obligations to ensure that proposed policies, programs and project do not have negative effects on the right to health, but rather further the government’s duty to respect, protect and fulfill all human rights.
Finally, by mainstreaming human rights into HIA, the process serves to educate policy makers about their human rights obligations and also helps to “focus policy making on the wellbeing of people, especially vulnerable groups” [
25]. In this respect, mainstreaming human rights into HIA is highly suitable for governments to comply with their obligations to progressively realize the right to health, while the stand-alone HRIA is well suited to human rights commissions and human rights NGOs lobbying for governments to comply with this right [
25].
Hunt and MacNaughton presented seven principles for integrating human rights into HIA or other forms of impact assessment and considerations for taking a human rights approach at each step of the HIA process. The seven human rights principles are: (1) use an explicit human rights framework; (2) aim for progressive realization of rights; (3) promote equality and nondiscrimination in the policy process; (4) ensure meaningful participation of all stakeholders; (5) provide information and protect the right to free expression; (6) establish accountability mechanisms for the state; and (7) recognize the interdependence of all human rights [
8]. These principles align closely with the UN Common Understanding of a Human Rights-Based Approach to Development Cooperation [
12].
Similarly, Walker explicitly draws on the UN Common Understanding and suggests that a human rights-based approach to impact assessment should comprise four key elements [
29]. First, human rights should be the explicit goals of the impact assessment. In this respect, the primary goal of a human rights-based HIA would be to progressively realize the right to health. Second, the process of the impact assessment should respect human rights, including the principles of equality and nondiscrimination, participation and accountability. These principles parallel the Gothenburg Consensus values of democracy (participation) and equity (equality and non-discrimination), but notably also include the dimension of accountability. From the perspective of HIA, the Gothenburg consensus importantly adds sustainable development (consideration of short-term and long-term impacts) and ethical use of evidence (rigorous use of different scientific disciplines and methodologies). Third, the impact assessment should contribute to developing the capacities of “duty-bearers” to meet their obligation and “rights-holders” to claim their rights. This education function in HRIA—also present in HIA—is distinctly grounded in human rights and is closely linked to empowering communities. Finally, the impact assessment should involve international and domestic human rights mechanisms and actors [
29], which will also educate duty-bearers and rights-holders about these mechanisms of accountability.
In terms of integrating human rights into the step-wise process of HIA, there are factors to consider at each step. Previous publications provide detailed lists of human rights considerations for each step of the impact assessment [
8,
21,
29]. Here we present only a few of these considerations to illustrate what a human rights framework brings to the process. First, at the screening step, it is important to examine the government’s legal obligations for the right to health in determining whether to recommend carrying out a full HIA of a proposed policy or program as the conclusion could be made in terms of specific legal obligations for the right to health. Second, at the scoping stage, affected populations and vulnerable groups should be educated about their right to health and their right to participate in the HIA. In addition, the research questions and the analysis plan should be based on an explicit human rights framework, and the team selected to carry out the impact assessment should include expertise in human rights. Third, at the data collection stage, human rights calls for participation of marginalized and disadvantaged groups and attention to their concerns. Fourth, in the analysis or assessment stage, the evidence collected must be compared to, and analyzed on the basis of, the obligations that the government has for the right to health that were determined at step 1. Recommendations with respect to the available options should be made on the basis of their potential for contributing to the full realization of the right to health. At the fifth stage, the report must make its recommendation on the basis of a human rights rationale; in other words, it should spell out the best options for the government to take to fulfill it human rights obligations. On the basis of this rationale, the stakeholders may hold their government accountable for the decision that it makes. Finally, at the sixth stage, the monitoring and evaluation plan must include the means in which stakeholders may participate in continuing to improve the policy or program and its implementation as well as the mechanisms for stakeholders to bring complaints for concerns about impacts of the policy or project on their right to health. Overall, each step of the HIA may be tailored to a human rights framework embedding the underlying human rights value of human dignity and the human rights principles of universality, equality and nondiscrimination, participation, accountability and interdependency in the assessment process and the recommendations.