International instruments for the recognition, use, regulation and protection of rights in health and traditional medicines
In the preamble to the constitution of the World Health Organization (WHO), in 1946, health was defined as “a state of complete physical, mental and social well-being, and not merely the absence of infirmities and diseases” and it was affirmed that “the enjoyment of the maximum degree of health that can be achieved is one of the fundamental rights of every human being, without distinction of race, religion, political ideology or economic or social condition”.
Health has been recognized as a universal human right since the United Nations adopted the Universal Declaration of Human Rights in December 1948, as an agreement of wills by its member states. This declaration recognizes the right of people “to an adequate standard of living that ensures their health and well-being, as well as their family, and especially food, clothing, housing, medical assistance and necessary social services; You also have the right to insurance in case of unemployment, illness, disability, widowhood, old age or other cases of loss of your means of subsistence due to circumstances beyond your control (art. 25)” (See Universal Declaration of Human Rights | OHCHR).
In order for this declaration to become a binding document and to compromise the will and actions of the states to comply with the provisions therein, in 1996 the General Assembly of the United Nations adopted, among others, the International Covenant on Human Rights. Economic, Social and Cultural –ICESCR-, which has been accepted and ratified by almost all of its member states. In this Pact, the right to health was recognized as a human right, as well as the right of every person to enjoy the highest possible level of physical and mental health (article 12) (See International Covenant on Economic, Social and Cultural Rights | OHCHR).
In addition, it recognizes that “the right to health encompasses a wide range of socioeconomic factors that promote the conditions under which people can lead a healthy life, and extends this right to the basic determinants of health, such as diet and nutrition, housing, access to clean drinking water and adequate sanitary conditions, safe and healthy working conditions and a healthy environment” (See General Comment | OHCHR). In other words, health is conceived from a broader conception that transcends the restrictive vision of the disease.
Thus, the member states of the United Nations have the obligation to respect, protect and satisfy Human Rights -including health-, which, being universal and covering all aspects of life, include not only Civil Rights, Political, Social, Economic and Cultural rights of individuals, but also the collective rights of peoples such as self-determination, equality, equity, development and peace, among others, and must be applied indiscriminately to all people regardless of their race, sex, ethnic or social origin, religion, language, nationality, age, sexual orientation, disability or any other distinctive characteristic.
Therefore, non-discrimination and equality are fundamental principles of human rights and decisive elements of the right to health; For this reason, in the International Convention on the Elimination of all Forms of Racial Discrimination, in its article 5, it is established that States must prohibit and eliminate racial discrimination and guarantee the right of all persons to public health, medical assistance and the basic determinants of health on an equal footing (See International Convention on the Elimination of All Forms of Racial Discrimination | OHCHR). This means that States must, among other things, recognize the differences and satisfy the specific needs of groups that generally face special difficulties in the health sector, as well as the application of specific health regulations to certain population groups and the adoption of positive protection measures for groups that have been discriminated against.
On the other hand, in 1989, the International Labor Organization issued Convention 169 on Indigenous and Tribal Peoples in independent countries, where in its Article 24 it states that: “Social security regimes must be extended progressively to the interested peoples and applied to them.” without any discrimination” and in its article 25 it establishes that it must be ensured “that adequate health services are made available to the interested peoples, providing said peoples with the means that allow them to organize and provide such services under their own responsibility and control , in order that they may enjoy the maximum possible physical and mental health”, that is, that they be organized in a community manner, planned and managed in cooperation with these peoples, taking into account their economic, geographical, social and cultural conditions as well as their methods of prevention, curative practices and traditional medicines or provide the means to these peoples to provide such services, and that preference be given to training and employing health personnel from the local community and focusing on the primary care of health, while maintaining close links with the other levels of health care (See Indigenous and Tribal Peoples Convention | OHCHR).
Later, in the Geneva Declaration on the Health and Survival of the World’s Indigenous Peoples, product of the meeting of the International Consultation on the Health of Indigenous Peoples, organized by the World Health Organization in November 1999, affirms that “…the concept of health and survival of Indigenous peoples is a collective, individual and intergenerational continuum that includes an integral perspective that incorporates 4 shared dimensions of life. These dimensions are: the spirit, the intellect, the physical and the emotional. Uniting these four fundamental dimensions, health and well-being are manifested on multiple levels where the past, present and future coexist simultaneously. For indigenous peoples, health and well-being are a dynamic balance that includes interactions with life processes and the natural law that governs the planet, all living beings and spiritual understanding…” and calls on governments to “Recognize the sciences, the knowledge systems, the sacred and ceremonial places, the doctors, healers and other practices of the Indigenous Peoples in health and medicine…” (See Report on the International Consultation on the Health of Indigenous Peoples : Geneva, 23-26 November 1999).
It is in this context that international agreements have been generated worldwide and recommendations and urges have been issued to the Member States of the United Nations in the region of the Americas regarding the recognition of the fundamental right to health and the protection of the collective rights of indigenous, Afro-descendant, Roma and other ethnic populations, as well as the recognition, appreciation, survival, strengthening, use, regulation and protection of Traditional Medicines; Also, global and regional Consensus have been issued relevant to the context of health and to safeguard their ancestral knowledge.
In the document International Regulation Instruments for the recognition, use, protection and regulation of traditional medicines of the Americas (International instruments for the recognition, use, protection and regulation of traditional medicines of the Americas), a consolidation of the Treaties, Pacts, Conventions, Declarations, Reports, Consensus and/or Resolutions was made. most relevant and relevant to the themes of collective rights and traditional medicines, issued by the United Nations System, its affiliated and related organizations, Programs and Funds, Specialized Agencies such as the United Nations Organization, the World Health Organization –WHO and its regional office for the Americas, the Pan American Health Organization -PAHO, the United Nations Educational, Scientific and Cultural Organization UNESCO, the International Labor Organization ILO, the Office of the High Commissioner for Human Rights OHCHR, the Office of the High Commissioner for Refugees UNHCR, the Economic Commission for Latin America and the Caribbean ECLAC, and from other international entities and organizations such as the Organization of American States OAS, the Andean Health Organization ORAS-CONHU, the Andean Community of Nations and the Latin American Parliament, among others.