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allow doctors to treat persons believed to be opposed to a government, or fails to provide
immunization against the community’s major infectious diseases, on grounds such as national
security or the preservation of public order, has the burden of justifying such serious measures in
relation to each of the elements identified in article 4. Such restrictions must be in accordance
with the law, including international human rights standards, compatible with the nature of the
rights protected by the Covenant, in the interest of legitimate aims pursued, and strictly
necessary for the promotion of the general welfare in a democratic society.
29.
In line with article 5.1, such limitations must be proportional, i.e. the least restrictive
alternative must be adopted where several types of limitations are available. Even where such
limitations on grounds of protecting public health are basically permitted, they should be of
limited duration and subject to review.
II. STATES PARTIES’ OBLIGATIONS
General legal obligations
30.
While the Covenant provides for progressive realization and acknowledges the
constraints due to the limits of available resources, it also imposes on States parties various
obligations which are of immediate effect. States parties have immediate obligations in relation
to the right to health, such as the guarantee that the right will be exercised without discrimination
of any kind (art. 2.2) and the obligation to take steps (art. 2.1) towards the full realization of
article 12. Such steps must be deliberate, concrete and targeted towards the full realization of the
right to health.20
31.
The progressive realization of the right to health over a period of time should not be
interpreted as depriving States parties’ obligations of all meaningful content. Rather, progressive
realization means that States parties have a specific and continuing obligation to move as
expeditiously and effectively as possible towards the full realization of article 12.21
32.
As with all other rights in the Covenant, there is a strong presumption that retrogressive
measures taken in relation to the right to health are not permissible. If any deliberately
retrogressive measures are taken, the State party has the burden of proving that they have been
introduced after the most careful consideration of all alternatives and that they are duly justified
by reference to the totality of the rights provided for in the Covenant in the context of the full use
of the State party’s maximum available resources.22
33.
The right to health, like all human rights, imposes three types or levels of obligations on
States parties: the obligations to respect, protect and fulfil. In turn, the obligation to fulfil
contains obligations to facilitate, provide and promote.23 The obligation to respect requires
States to refrain from interfering directly or indirectly with the enjoyment of the right to health.
The obligation to protect requires States to take measures that prevent third parties from
interfering with article 12 guarantees. Finally, the obligation to fulfil requires States to adopt
appropriate legislative, administrative, budgetary, judicial, promotional and other measures
towards the full realization of the right to health.