Report of the Special Rapporteur on the right of everyone to the enjoyment of the highest attainable standard of physical and mental health, par. 50 and par. 51 (2014)

Text of the recommendation

50. States have an obligation to make legislative, judicial and administrative mechanisms available, accessible and effective to enable people to hold States and non-State actors accountable and claim remedies for violations of their right to health. Omission by States to legislate and enforce regulatory frameworks with respect to the food industry may in itself be a violation of the right to health. For instance, if the State fails to put into place laws requiring the provision and dissemination of information, people may not be in a position to make informed choices about their diet, which may prevent them from realizing their highest attainable standard of health.

51. States should not only ensure that relevant laws and policies are in place, but also that they are formulated, implemented and monitored in a transparent manner, in line with the right to health. Transparency should be ensured at all times, including when negotiating international obligations. Although transparency is required by some investment treaties, it is linked to the promotion and protection of international investment. The thrust is towards ensuring that laws and regulations, which may affect investments, are made publicly available to the contracting parties. Some international organizations have adopted transparency principles that pertain, however, to the predictability of investment rules and regulations to protect the commercial interest of contracting parties, which benefits the private commercial interests of TNCs. Furthermore, these treaties are negotiated in secret without any discussion at the domestic level, which is not compatible with the right to health framework.