Human Rights and Legal status of the Right to Pain Treatment within
the Right to Health
As we stated before, the right to the treatment of pain is immersed
in the right to health, and is not yet explicitly and officially
recognized as a human right. However, during their evolution from moral
sentiment to legal entrenchment, claims not yet formally recognized as
human rights may nevertheless be legitimate and have consequences without
being incorporated into binding law.
Because of this fact and because
pain is now recognized as a disease by itself, it is appropriate to
analyze the relevant aspects on the right to health and consider them as
equivalents to the natural health-related right of the treatment of pain.
The consideration of health as human right is reflected in article
25 of the Universal Declaration of Human Rights (UDHR) “Everyone has the
right to a standard of living adequate for the health of himself and of
his family, including food, clothing, and housing and medical care and
necessary social services”.
Article 12 of the 1966 International Covenant on Economic, Social
and Cultural Rights (ICESCR) states that it is “The
right of everyone to the enjoyment of the highest attainable standard of
physical and mental health”.
Article 24 of the 1989 Convention on the Rights of Child (CRC)
states that it is “the right of the child to the enjoyment of the
highest attainable standard of health and to facilities for the treatment
of illness and rehabilitation of health”.
Article 12 of the 1979 Convention on the Elimination of All Forms
of Discrimination against Women (CEDAW) acknowledges in writing “The right to protection of health and to safety in working
conditions, including the safeguarding of the function of
reproduction…to eliminate discrimination against women in the field of
health care in order to ensure, on a basis of equality of men and women,
access to health care services, including those related to family
planning…ensure to women appropriate services in connection with
pregnancy, confinement and post-natal period, granting free services where
necessary, as well as adequate nutrition during pregnancy and lactation,
as on the right to non-discrimination reflected in the Durban Declaration
and Programme of Action”.
Article 5 of the 1965 International Convention on the Elimination
of All Forms of Racial Discrimination (ICERD) includes “The right of
public health, medical care, social and security services”.
Article 15 of the European Social Charter of 1961, revised in 1996
mention an obligation to take measures in order “to remove as far as
possible the causes of ill health;
to provide advisory and educational facilities for the promotion of health
and the encouragement of individual responsibility in matters of health;
to prevent as far as possible, epidemic,
endemic and other diseases,
as well as accidents” and recognizes a duty “to ensure that any person
who is without adequate resources and who is unable to secure such
resources either by his own efforts of from other sources, in particular
by benefits under social security scheme, be granted adequate assistance,
and, in case of sickness, the care necessitated by his condition”,
Article 16 of the African Charter on Human and Peoples’ Rights of
1981 mentions “…the right to enjoy the best attainable state of
physical and mental health and the obligation of the state to take the
necessary measures to protect the health of their people and to ensure
that they receive medical attention when they are sick.
Article 10 of the Additional Protocol to the American Convention on
Human Rights in the Area of Economic, Social and Cultural Rights (known as
the Protocol of San Salvador) of 1988 states that a need to “enjoyment
of the highest level of physical, mental and social well-being…ensure a
primary health care, that is, essential health care made available to all
individuals and families in the community, extension of the benefits to
all individuals subject to the state’s
jurisdiction, universal immunization against the principal
infectious diseases, prevention and treatment of endemic, occupational and
other diseases, education of the population on the prevention and
treatment of health problems, and satisfaction of the health needs of the
highest risk groups and those whose poverty makes them the most
In regional human rights treaties, such as in the article 14 of the
African Charter on the Rights of the Child.
The WHO Constitution adopted in 1946: “The 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, economical or
There are other instruments in which the right to health, although
not mentioned, is protected indirectly, such is the case of the:
American Declaration on the Rights and Duties of Man.
American Convention on Human Rights.
Inter-American Convention on the Prevention, Punishment and
Eradication of violence against Women.
European Convention for the Protection of Human Rights and
Fundamental Freedoms and its protocols.
It is worth noting that through the legal provisions derived from
the above mentioned instruments, health violations have being reported and
flagged as in the case of ICJ v. Portugal in which the European Social
Charter principles were violated allowing children to work in an
environment that may have consequences on their health and development
The Right to Health has 14 basic integral components as mentioned
on the General Comment on the Right to Health by the Committee on
Economic, Social and Cultural Rights.
They are the rights to:
Prohibition against torture
Access to information
Freedoms of association
It is worth mentioning that “Human Dignity”, as above quoted,
is one of the core pronouncements of the Initiative:
“As pain and suffering present one of the greatest tyrannies of
mankind, society should do its utmost to use any means available through
current scientific knowledge to avoid suffering, and to provide human
beings with all available and possible means of curing their pain, or
ameliorating it, thus granting them compassionate relief and dignity both
in life and in dying”.
is used here
as basic, fundamental and philosophical motive for this natural human
right. A life rife with the
constant pain and suffering of a human being and his family in a world in
which scientific knowledge has achieved the means to eliminate or
ameliorate it, is purely an act of humiliation, discrimination and
mistreatment by any society that allows this condition to occur.
When we mention discrimination, we imply that a person or persons immersed in
such suffering and their families, have been denied the fundamental human
right of equality.
It is a concept that has been included in the history of the
philosophical principles on Human rights for centuries.
Jean-Jacques Rousseau wrote in Essay
on the Origin on Inequality among Men “it is plainly contrary to the
law of nature…that the privileged few should gore themselves with
superfluities, while the starving multitude are in want of the bare
necessities of life”.
Non-discriminatory and equal treatment is among the most critical
components of the right to health and health related rights and it is the
obligation of States to respect, protect and fulfill those human rights.
Accordingly, international human rights law proscribes any discrimination
in access to health care, and the underlying determinants of health, on
the internationally prohibited grounds, including health status, which has
the intention or effect of impairing the equal enjoyment of the right to
Also, the Committee on Economical Social and Cultural Rights states
that health facilities, goods and services, including the underlying
determinants of health, shall be accessible, acceptable and of good
The non-discriminatory pronouncement of the Initiative enshrines
the above-mentioned rights:
Treatment of Pain should not be merely the privilege of some, but a
Fundamental Right of every living Human Being”.
Another transcendental goal of the Initiative is to promote the
enjoyment of the benefits of scientific advancement and advances in an
equitable manner by all members of the human community.
This, no doubt, has to do with the right to development, recognized
in numerous United Nations resolutions, specifically in the 1986
Declaration on the Right to Development
and also in the African Charter on Human and Peoples’ Rights that reads:
“an inalienable human right by virtue of which every human person and
all peoples are entitled to participate in, contribute to, and enjoy
economic, social, cultural and political development, in which all human
rights and fundamental freedoms can be fully realized”
Aside from the Right to Development, the access to medication has
being a recent resolution of the Commission of Human Rights.
The 14 basic integral components of the Right to Health as
aforementioned contemplate many aspects for the accomplishment of such a
right. Also, as with all other human rights, the right of pain
treatment should be viewed through the prism of many other elements of the
human environment and circumstances.
Therefore the World Conference on Human Rights (Vienna, June 1993)
expressed: “All human rights are universal, indivisible and
international community must treat human rights globally and in fair and
equal manner, on the same footing, and with the same emphasis.
While the significance of national and regional particularities and
various historical, cultural and religious backgrounds must be borne in
mind, it is the duty of States, regardless of their political, economic
and cultural systems, to promote and protect all human rights and
The right to pain treatment does not mean the right to pain relief,
just as the right to health does not mean the right to be healthy since
being healthy is determined in part by health care, but also by genetic
predisposition and social factors. What
is of greater significance for the realization of healthy lives is the
extent to which respect for other human rights has a direct bearing on the
right to health or on the social factors that contribute to healthy lives.
In this context, “relief” is viewed as the consequence of
“treatment” in its broad meaning. In the treatment of pain, and
specifically, chronic pain conditions, it is of paramount significance
that the extent to which the respect for other human rights or other
social factors has a direct effect on those conditions and their resulting
suffering and disability be directly relational.
Consequently, from the human rights perspective we should focus on
the treatment of pain as a human right. The optimal relief
we can attain is immersed within the concept of
treatment as a matter of ethics and principles, where the results
obtained in the form of relief
cannot constitute a legal obligation of the member states. If the possibility exists that, aside from the best of
treatments, even in a minimal percentage of human beings no relief can be
attained, the law scholars will oppose and counsel their governments and
institutions not to embark on that legal compromise. Besides, the right to the treatment
of pain as the right to health, has to be viewed as the complex
integration and fulfillment of all human rights that bear direct
significance for their accomplishment.
Treating is a broad term
that can be meant to imply “taking care of”.
In treating one’s
health, prevention of disease is
prominent. In this instance,
the concept of prevention fits
better within the concept of treatment
(taking care of) than it does within the concept of relief
(assistance, support). It is
then fundamental to notice that the human right for the treatment (taking care of) of pain conditions, has to include as a sin
e qua non concept the aspect of prevention, as well as the universal
condemnation of unlawful infliction of pain to any human being by the
violation of other human rights law, international criminal law or
international humanitarian law, as will be the execution of international
crimes such as genocide, torture, slavery, racial discrimination and
A global United Nations conference should be promptly promoted in
order to place the problem of the Treatment of Pain as a Human Right at
the top of the global agenda, and to influence national and international
policy-making processes on what is called today “health related
rights”. Such rights are
included already in various constitutions around the world.
WHO has commissioned the International Commission of Jurists to
embark upon a survey of national constitutions that enshrine the right
to health and health-related
According to preliminary findings of this study, which remains in
its early stages, over 60 constitutional provisions include the right to
health or the right to health care, while over 40 constitutional
provisions include health-related rights…such as the right of the disabled
to material assistance and the right to a healthy environment.
Further, a large number of constitutions set out State duties in
relation to health, such as the State duty to develop health services,
from which it may be possible to infer health entitlements.
Moreover, in some jurisdictions constitutional provisions on the
right to health have generated significant jurisprudence.
All the laws and legal
decisions at the national, regional and international levels confirms the
justifiability of the right to health, with the right to pain treatment
immersed within the larger statute. This late assertion is of particular relevance because, it
has been established that the right to health is an inclusive right,
extending not only to timely and appropriate health care, but also to the
underlying determinants of health.
The right to health contains both freedoms and entitlements.
include the right to control one’s health…Entitlements include
the right to a system of health protection (i.e. health care and the
underlying determinants of health) that provides equality of opportunity
for people to enjoy the highest attainable standard of health.
right to health has being broken in specific entitlements
The right to maternal, child and reproductive health;
The right for a healthy workplace and natural environments;
The right for the prevention, treatment and control of diseases;
including access to essential medicines;
The right to access to safe and potable water.
is our assertion that a new entitlement should be incorporated into the
right to health named:
The right for the prevention, treatment and control of pain,
to essential medicines and related technology.
The Initiative mentions the right to receive health treatment:
do its utmost to use any means available through current scientific
knowledge to avoid suffering…”
is an entitlement already established as part of the human right to health
and health related rights.
The realization and fulfillment on the right to pain treatment
should be, as it is on the right to health, not only a government
responsibility but also the responsibility of the individuals, the health
professionals in general, the associations for the treatment of pain, the
non-governmental organizations and of the community as a whole.
The recognition of the new entitlement on the right to health, that
is the right to pain treatment, will impose upon societies the same
immediate obligations already recognized as obligations imposed by the
right of health. Although
subjected to progressive realization and resource constraints, these
obligations will include the guarantees of non-discrimination and equal
treatment, and the obligation to take concrete and targeted steps towards
the full realization of the right to pain treatment, such as the
preparation of a national public health strategy and a plan of action.
Progressive realization means that States have a specific and
continuing obligation to move as expeditiously and effectively as possible
towards the full realization of the right to health
which should be guaranteed through effective, transparent and accessible
monitoring and accountability arrangements, which are an essential feature
of the human rights approach.
It is an obligation of the member states to implement human rights,
as is in the case of the right to health, and this should also be the case
with the right to pain treatment. That
obligation also means cooperation with other states in protecting such
rights, as well as ensuring that no international agreement or policy
adversely impacts upon those rights.
It is also an obligation of the state to cooperate with other
states towards the advancement of the mentioned human rights.
I present Judge Weeramantry’s dissenting opinion in the Advisory
Opinion of the International Court of Justice on the Legality
of the Threat or Use of Nuclear Weapons, in which he cited article 12
of the International Covenant on Economical, Social and Cultural Rights
(ICESCR) and stated, in relation to this article, that, “it
will be noted here that the recognition by States of the right to health
is in the general terms that they recognize the right of ‘everyone’
and not merely of their own subjects.
Consequently, each state is under the obligation to respect the
right to health of all members of the international community.
In relation to the right to pain treatment, this fact will be of
particular importance and transcendence regarding cooperation between
countries to share human and technological resources in order to protect
and advance that right and to ensure that no international agreement or
policy adversely impact upon that right.
The Committee on Economical Social and Cultural Rights observes
that health facilities, goods and services, including the underlying
determinants of health, shall be available, accessible, acceptable and of
good quality, and determines the dimensions of each term.
As such, “accessible” has four dimensions: accessible without
discrimination, physically accessible, economically accessible (i.e.
affordable), and accessible information
The right to the treatment of pain is of vital importance for all
human beings, but as with other human rights, it conveys special
meaningfulness for those living in poverty.
Good health and the treatment of disabling conditions, like chronic
pain, is not just an outcome of development: it is a way of achieving
development. It is for this reason that health issues are prominent in the
United Nations Millennium Declaration and the Millennium Development Goals.
Of the Millennium Development
Goals (MDGs) four are health-related; two relate to maternal and infant
mortality, one to the environment and a fourth one to HIV/AIDS, malaria
and other major diseases that
afflict humanity. Here,
the prominence of chronic pain as a primary disease of humanity cannot be
The relevant data on the world statistics of the treatment of pain
should be disaggregated so that the conditions of specifically
disadvantaged groups – poor woman, minorities, indigenous peoples and so
on – are captured. This
dispersement will help to identify policies that will deliver the promise
of the Millennium Declaration to all individuals and groups.
The right to pain treatment should be part of the poverty reduction
strategies through the recognition that chronic pain and the consequent
disability has a particular impact on the poor, and specific policies
should be designed to reach the poor and treat their chronic pain
conditions. One such policy, for example, can be directed at reducing the
financial burden of chronic pain treatment on the poor.
The specific contribution on the right to pain treatment as a means
of reducing poverty should always be considered within the general
contribution of human rights – e.g. non discrimination, participation,
international cooperation, accountability – to poverty reduction.
It is important to notice that a recent WHO study on 10 poverty
reduction strategy papers (PRSP’s) and 3 interim PRSP’s found that no
PRSP mentioned health as a human right.
It should be noted that because of chronic pain and its consequent
disability, the poor become poorer and that access to advancements in
treatment, being medications or advanced technologies becomes very limited
due to poor acquisition capabilities.
In poor countries, themselves, the level of research and
development is extremely limited, as noted by the 1990 Commission on
Health Research and Development that expressed the 10/90 disequilibrium,
indicating that only 10 percent of research and development spending is directed at the
health problems of 90% of the world’s population.
It is of fundamental importance and transcendence that any the new
international trade accords acknowledge the epidemical existence of
disabilities due to chronic pain conditions, and their profound
consequences on the social and economical welfare of societies, especially
those in the poorest countries. Rich
countries should give economic incentives, such as tax relief, to the
manufacturers of medications and technology designed to treat chronic pain
conditions, so that those elements or instruments of treatment will become
as cheaply available, or even more, in poor countries
as they are in many instances in the richer countries where they are
manufactured. Sadly the
opposite scenario is often the case. The Commission on Human Rights
recognized that: “access to medication in the context of pandemics such
as HIV/AIDS (note here that chronic pain has being recognized as the worst
epidemic of our times) is one fundamental element for achieving
progressively the full realization of the right of everyone to the
enjoyment of the highest attainable standard of physical and mental
The Doha Declaration
recognizes “the gravity of public health problems afflicting many
developing and least-developed countries, especially those resulting from
HIV/AIDS, tuberculosis, malaria and other
epidemics (again, pain has being considered the worst epidemic of our
times). It is important to remember here the World Trade Organization
members obligation “to protect public health and, in particular, to
promote access to medicines for all”.
Furthermore, the Commission on Human Rights in its resolution
2002/32 called upon all States to “ensure that their actions as members
of international organizations take due account on the right of everyone
to the enjoyment of the highest attainable standard of physical and mental
health and that the application of international agreements is supportive
of public health policies which promote broad access to safe, effective
and affordable preventive, curative and palliative pharmaceuticals and
The social determinants of chronic pain conditions, such as
discrimination on the grounds of gender, race, ethnicity and other social
inequalities should be identified, because they add to the inequalities
already experienced by those affected and, amount to a failure to respect
human dignity. Special
populations should be carefully considered such as people with
disabilities, racial and ethnic minorities and women.
It has been recognized that “the burden of ill health is borne by
vulnerable and marginalized groups in society”.
In this aspect, the
International Covenant on Economical, Social and Cultural Rights
“proscribes any discrimination in access to health care and underlying
determinants of health, as well as to means and entitlements for their
procurement, on the grounds of race, colour, sex, language, religion,
political or other opinion, national or social origin…”
It is of fundamental importance that the treatment of pain become
accessible to all in society. States have an obligation to ensure that
health facilities, goods and services – including the underlying
determinants of health – are accessible to all, especially the most
vulnerable or marginalized sections of the population without
The WHO should make a report on the Global Impact of Chronic Pain
as was done on the Global Defense
against the Infectious Disease Threat.
Such an initiative would demonstrate that chronic pain conditions
also represent neglected diseases whose outcomes will likely prove worsen
than those encountered by persons afflicted whit infectious disease.
Studies indicate that the: “health impact of these neglected
diseases is measured by severe and permanent disabilities and deformities
in almost 1 billion people…Their low mortality despite high morbidity
places them near the bottom of mortality tables and, in the past, they
have received low priority”.
It has been repeatedly shown that chronic pain conditions and
disabilities represent an astronomical economical loss to societies, which
is the end result of a neglected disease.
The neglected disease of chronic pain constitutes the worst epidemic
phenomenon of our times, and is consequently commendable and mandatory
the acknowledgement that the concept on the treatment of pain as a human
right receives the highest consideration by the United Nations, the World
Health Organization, the Commission on Human Rights, and any other
commission organ, institution or individual that has involvement in the
procurement of health and well being of the human beings.
i.e. “…without discrimination, physically accessible, economically
accessible (i.e. affordable), and accessible information”.