The Right to Health

The right to health remains a debated topic in today’s academic and political arenas. The role of the state in providing health to its constituency depends largely on the underlying philosophy of those in power. While international organisations advocating for the right to health do so based on the aristotelian conception of human flourishing, when it comes to party leaders and governments, the logics behind their approaches to the right to health often differ.

 

To understand what this means for real life scenarios, we contacted Anthony, a Ugandan Lawyer and Human Rights Defender. With his help, we look at how international organisations shape the meaning and implementation of the right to health around the world. Then, we reflect on the reach of international governmental organisations and their ability to hold governments accountable to the treaties they sign. Lastly, we bring to light the possible consequences that follow approaches which fall short of fulfilling the right to health for people that are part of vulnerable groups – for example, refugees.

The right to health in international human rights law

According to our research, the right to health is fundamental to our human rights. Indeed, the right to health is also crucial in order to secure other human rights, most importantly, the right to life. It is vital to have the right to health recognized in law. The World Health Organisation in their 1946 Constitution defined the right to health as “a state of complete physical, mental and social well-being and not merely the absence of disease or infirmity”[1].

Many other international human rights treaties have since recognized the right to health. Notable examples include the 1948 Universal Declaration of Human Rights (which includes health as part of the right to an adequate standard of living)[2] and the 1966 International Covenant on Economic, Social and Cultural Rights (which refers to “the right of everyone to the enjoyment of the highest attainable standard of physical and mental health”)[3]. In addition to treaties, states worldwide have expressed their commitment to protecting this right through international declarations, domestic legislation and policies.

The United Nations’ Special Rapporteur on Health works to protect and promote this right through various means. The Special Rapporteur can work with both international governmental organisations and international non-governmental organisations. The Special Rapporteur makes recommendations on how states can better act to protect and promote this right. In addition, the Special Rapporteur can receive complaints from individuals or NGOs and can investigate areas of concern. This should act as an effective check on a states (in)action relating to the right to health[4]. Here is what our source, Anthony, had to say about UN’s Special Rapporteur on Health:

I think that the role of the UN Special Rapporteur on the right to the highest attainable standard of health is undeniably crucial in clarifying the scope of the right to health and state obligations. It entails working with different stakeholders including governments, non-governmental and intergovernmental organizations with the ultimate goal of understanding the challenges that affect the realization of the right to health in the different states. Once the status of the right is established, the UN rapporteur makes recommendations on the measures intended to promote and protect this right.

 

However, the UN Special Rapporteur’s role may not be effective in the circumstances where some states express reservations in supporting and facilitating the UN rapporteur in carrying out country visits to investigate serious allegations on the right to health. This may negatively affect the rapporteur’s observations on alleged violations”.

 

Inclusion of this right in treaties means that states who are party to such have an obligation to respect, protect and fulfill this right[5]. However, what does this mean in practice, and why do some states fail to deliver on their promises?

The right to ‘the highest attainable standard of physical and mental health’ is provided for in numerous international instruments including the International Covenant on Economic, Social, and Cultural Rights (ICESCR). The committee on Economic, Social, and Cultural Rights has advanced the tripartite typology (respect, protect and fulfill) to demonstrate state obligations; for instance, under the obligation to respect – governments must “abstain from imposing discriminatory practices relating to women’s health status and needs” or “refrain from denying or limiting equal access for all persons, including asylum-seekers and illegal immigrants”. To protect –  states have been called upon to ensure that privatization of the health sector does not constitute a threat to the availability, accessibility, acceptability and quality of health facilities, goods and services; and lastly to fulfill – state parties also been called upon to give sufficient recognition to the right to health in the national political and legal systems, preferably by way of legislative implementation.

The right to health and vulnerable groups

All states are obliged to take action to realize the right to health, even if they have a difficult financial situation. While the amount of resources a state has is considered when assessing their performance, a lack of funds or resources cannot be used as an excuse for failing to act.

The principle of non-discrimination is a critical component of the right to health. Everyone has the right to health without distinction on grounds of race, religion, sex, language, political belief, disability, economic or social condition and birth or other status[6]. States are obliged to prohibit all forms of discrimination and ensure equality for all in relation to the right to health[7]. However, when it comes to the access to healthcare for vulnerable groups, Anthony identifies several issues:

The issues that I encountered in my work relate to discrimination of women and other minorities in dire need of medical services, limited access to essential medicines and other health goods for all, absenteeism of medical workers, lack of essential diagnostic medical equipment in most public health facilities and high medical rates by private health providers. These challenges have been aggravated by the COVID-19 pandemic and as such health inequalities have worsened in developing countries.

For hundreds of thousands of asylum seekers fleeing from countries from parts of the Middle East, Africa and Asia to Europe, access to even basic healthcare is often extremely limited. During their journey to reach a safe place, asylum seekers lack hygienic conditions. Most arrive at their destination with an extremely poor immune system, risking serious illnesses. According to the Human Rights legislative framework, all of those arriving in Europe should receive from the state the “highest attainable standard of physical and mental health”. However, the current reality is extremely far from that standard, not even close to the necessary conditions for human beings to live with dignity.

For instance, if we look at the data gathered by the human rights organisation “the Doctors of the World Clinic”, the situation seems dire: one in five patients had given up seeking medical care or treatment  because of difficulties, including financial and language barriers, administrative problems and a lack of knowledge and understanding of their rights. About 54.2% of pregnant immigrated women did not have access to antenatal care, and only 34.5% of children have been vaccinated against the serious and contagious mumps and rubella. This data must also be taken into consideration with the extremely poor conditions of the overcrowded refugee camps where they even lack access to clean water.

Based on the data and information presented above, our conclusion is that state governments need to improve their efforts in providing the basic human right to health and an adequate standard of living, without discriminating against vulnerable groups.

We can all do more to hold our governments accountable, so that they fulfill the human rights treaties they sign. For this to happen, however, it is important to understand how citizens can hold the state accountable for non-performance, and the issues that activists like Anthony encounter in their line of work. In this sense, our source has some guiding words:

Citizens should explore domestic laws that advance the right to health and use the same to hold governments accountable in the national courts of law. They can also voice their concerns through international non-governmental organizations such as Human Rights Watch and Amnesty International to be amplified for the international community. Where the person is a citizen of a state that ratified the Optional Protocol to ICESCR, an individual complaint indicating the violation of the right to health can be sent to the committee on Economic, Social, and Cultural Rights upon exhausting all domestic remedies. A complaint can also be registered with the UN Special Rapporteur on the right to the highest attainable standard of health who may in turn inquire about the violation and accordingly make a statement calling upon the affected state to take positive measures in promoting the right.

As you can see, while the landscape may seem difficult to navigate, there are ways to fight for the equal right to health and remind those with decision-making power that they need to deliver on the promises they make and the treaties they sign.

We want to end today’s post by celebrating Anthony for his energy and dedication and for helping us write today’s article. The world can be a better place with contributions like his. Thank you, everyone, for reading this article! Our next blog post comes in January. Stay tuned!

P.S. If you would like to write about topics regarding vulnerable groups or wish to create awareness by helping us with information regarding refugee issues, please do not hesitate to get in touch!

 

By Iris, Shannon and Tedi, in collaboration with Anthony.

[1] Preamble, 1946 Constitution World Health Organisation, accessed at: https://www.who.int/governance/eb/who_constitution_en.pdf

[2] Article 25 (1), Universal Declaration of Human Rights, accessed at: https://www.un.org/en/about-us/universal-declaration-of-human-rights

[3] Article 12, 1966 International Covenant on Economic, Social and Cultural Rights, accessed at: https://www.ohchr.org/en/professionalinterest/pages/cescr.aspx

[4] OHCHR and WHO, ‘the right to health, fact sheet no. 31’, p.38-39, accessed at: https://www.ohchr.org/documents/publications/factsheet31.pdf

[5] OHCHR and WHO, ‘the right to health, fact sheet no. 31’, p.25, accessed at: https://www.ohchr.org/documents/publications/factsheet31.pdf

[6] Article 2 (2), International Covenant on Economic, Social and Cultural Rights and article 2 (1), Convention on the Rights of the Child, accessed at: https://www.ohchr.org/en/professionalinterest/pages/cescr.aspx and https://www.ohchr.org/en/professionalinterest/pages/crc.aspx

[7] OHCHR and WHO, ‘the right to health, fact sheet no. 31’, p.7, accessed at: https://www.ohchr.org/documents/publications/factsheet31.pdf