416 HEALTH-RIGHTS AND JUSTICE-IN-GLOBAL-HEALTH HAVE A UNITY OF PURPOSE: TO GUARANTEE HEALTH OPPORTUNITIES AND OUTCOMES FOR MARGINALIZED POPULATIONS.

Human rights: Food for an often-ignored thought

Human Rights Reader 416

Most governments ignore their human rights obligations in health

Currently, governments perceive no impending threat whenever they ignore their right to health obligations, whether the threat is in the form of moral blame, of being subjected to name-and-shame or by risking a number of actual sanctions.

1. Let us face it, current international resource transfers in health are treated mostly as charity making these transfer fall under the category of ‘duties-of-humanity’ rather than of ‘obligations-of-justice’. This why such transfers cannot guarantee the fulfillment of relevant human rights (HR). This only shows us how the moral and political necessity (as well as the legitimacy) of transnational obligations for distributive justice are being widely denied. ‘Obligations’ are simply not framed and treated as real obligations-of-justice, i.e., as precise and potentially enforceable. It is taken for granted that such obligations exist, but what is unclear is the reasons why those-who-believe-that-such-obligations-exist do not enforce them. It is us, right to health activists and claim holders, who have not succeeded in more forcefully demanding their enforcement.

2. Generally, countries are unwilling to give up their freedom in deciding how to manage their domestic and their foreign affairs: In the case of budget allocations by low-income country governments, for instance, how much of their resources they must allocate, in our case, to health. In the case of multilateral or bilateral assistance by high-income country governments, the issue is how much foreign aid is directed to the health sector of aid recipient countries.* The United Nations does not possess the normative authority on this. It is the international organizations with greater power and influence in economic and financial matters, in particular the World Trade Organization (WTO), the World Bank and the International Monetary Fund (IMF) that call the shots. Unfortunately, a ‘World Government’ with an enforceable mandate to enforce equality and justice in all member states is not on the immediate horizon.
*: As regards foreign aid, the key insight is that perfectly voluntary ODA disbursements (or any other forms of international health resource transfers) treat such transfers as charity and this does not guarantee any of it reaching the true marginalized populations. (John Barugahare)

3. Note: The fact that states fail to respect their commitments is too often considered ‘the inevitable outcome of under-development’. Nevertheless, the HR perspective unequivocally contests this explanation by demonstrating that when they are the consequences of governmental neglectful policy to act, this constitutes an outright HR violation.

A rights-based approach to health that only implicitly includes the right to health lacks credibility and legitimacy

4. The right to health encompasses all relevant human rights, including the rights to life, information, privacy, participation, association, equality, non-discrimination, and the prohibition of torture and inhuman and degrading treatment. Using such a wider lens will help devise a more comprehensive and effective strategy, i.e., the rights to health and to have access to health care can be at the center, but other rights need to be addressed as well.**
**: After all, the right to health is in the Constitution of the World Health Organization, and all states have ratified one or more treaties that include this human right, as much as it has been recognized by the UN on innumerable occasions. Nevertheless, although the international right to health found its place in the UN already in 1946, it was not subject to a more analytic treatment until more than 30 years later. (Paul Hunt)

Social and political engagement is not a substitute for technical validity, but is an essential addition

5. Questioning power relationships in global health starts with the understanding that the data and concepts we use in global health are institutionally and politically constructed.*** What this means is that a health issue rises up the international agenda because people deemed to be experts have used ‘accepted’ methods to demonstrate its importance, and have communicated that in fora that entrench that importance on all of us thus influencing any future funding decisions. The validity of global health estimates can be improved if estimation processes are worked from the bottom up. Therefore, health data and estimates at any level are only useful if they are demonstrably used to improve the health of individuals other than those individuals (including ourselves) who make a comfortable living out of the ‘health estimates industry’.
***: Can we thus perhaps say that, as the concept is applied, global health is tipping into irrelevance?

6. Mind you: health data are often presented as ‘objective’ but, like all other knowledge, they are a construct that derives meaning from the very process of its construction. Those choosing the questions may or may not be the end users of the information. But their interests and aims will certainly influence the utility of the data to all potential users.

7. Moreover, the source of funding often (though not always) strongly influences the questions that get asked, and the ways in which they get answered. In-country data producers are themselves embedded in a political system, and are often under strong pressure to report statistics that support the political powers of the day. This institutional culture has led to an emphasis on the technical robustness of health estimates. Together with the imperative to publish comparable statistics on a very regular basis, this focus on the technical has undermined claim holders’ consultation and other social processes deemed indispensable.

8. National authorities are sometimes unable to respond appropriately, because they do not understand the ‘black box’ that produced the data. Indeed, the desire to increase accountability and show measurable results has been a major driver of the huge rise in demand for these sorts of data. Some global health funds use these estimates not just to guide the allocation of resources, but to withdraw funding if countries do not meet numerical targets set.

9. Standardized models that use estimated parameters to produce comparable data for close to 200 countries inevitably iron out precisely the differences and nuances that are most important for local decision-making. If the international community is not willing or able to work with local powers to develop better and more participative health information systems, one wonders if it would not be OK to live with blanks in global estimates.**** (Elizabeth Pisani, Maarten Kok)
****: Against the advice of the Committee on the Social Determinants of Health’s secretariat, the full CSDH team regrettably rejected the use of the HR framework in its 2008 report. This resulted in a substantially less persuasive rationale for the importance of participation, empowerment and voice of patients as claim holders, as well as in diminishing the potential role of HR in holding governments actually accountable for implementing the many recommendations in the report.

The context of any economic or demographic crisis does not reduce or eliminate the human rights obligations of the state

10. According to international human rights law, the HR criteria that must be respected if austerity policies are implemented –if these are to comply with obligations derived from international human rights treaties– are:
• any regressive measure must be temporary, strictly necessary and proportionate;
• no measure can be discriminatory;
• any measure must take into account all possible alternatives and must identify and protect the minimum core obligations of the right to health.

11. Health exclusion of any kind is contrary to human dignity even if it guarantees access to just emergency services for undocumented migrants, especially minors and pregnant women. This, because the lack of access of preventive health care services in primary care, along with specialized and palliative care when these are necessary, has serious impact on the lives of these people. One cannot ignore that, in so far as the public health system is financed by direct and indirect taxes, established refugees (ex-migrants) who start working also contribute to its sustainability.

12. Human rights organizations must reaffirm their commitment and determination to achieve the full respect of universal health care and, as such, must continue demanding that governments respect and/or restore a system of universal access for all persons regardless of their administrative status. (CESR)

The right to health cannot be ignored or applied on some occasions, but not on others (Paul Hunt)

Any health professional worth their salt knows that it is unrealistic to expect health policy makers or practitioners to read either a treaty provision or its corresponding General Comment and then grasp how they are to operationalize the right to health.

13. Paying particular attention to access, adequacy, affordability and quality of health services (AAAQ) is necessary, but not sufficient. One also has to pay attention to the progressive realization of the right to health with maximum available resources, with international assistance and cooperation, as well as with assured privacy, participation and accountability.***** Only this ensures that the right to health has the operational potential to make a sustained contribution to the implementation of complex and costly health interventions that inevitably take years to put in place and ought to be ongoing.
*****: Take what the International Labor Organization (ILO) says about the minimum requirements for social protection floors; very much related to HR, these floors must include:
• access to a nationally defined set of goods and services, constituting essential health care and including maternity care that meet the right to health criteria of availability, accessibility, acceptability and quality (AAAQ); and
• basic income security (especially in cases of sickness, unemployment, maternity or disability).

14. Consequently, we always have to:
• distinguish between those human rights that are, and are not, subject to progressive realization;
• explain that the right to health places more demanding obligations on high-income than low-income countries (except as relates to the fact that ‘core obligations’ apply uniformly to all countries, i.e., non-discrimination, equitable access******, and the adoption of an effective, participatory health strategy that gives particular attention to the disadvantaged);
• confirm that states and others-in-a-position-to-assist have a responsibility to provide international assistance and cooperation in health, especially to low-income countries;
• explain that duty-bearers are accountable for their right to health obligations, including optimal progressivity (just as much as they have obligations under the right to fair trial); and
• acknowledge that, while ‘effective health monitoring’ is important, it is not the same as accountability.
******: Note that, for WHO, the inequitable distribution of the underlying social determinants of health (SDH) is the root cause of inequalities in health.

15. Bottom line: Better late than never, claim holders and duty bearers better grasp the concept that the international right to health is not just a rhetorical issue. On the contrary, it very much is a contributor to improve the health and wellbeing of individuals, communities, and populations. (all the above adapted from Paul Hunt)

Claudio Schuftan, Ho Chi Minh City
schuftan@gmail.com

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