EU-China Network Seminar on Human Rights

Right to health/Right to social security

University of Essex, Colchester, U.K., 27-28 April 2004

International standards on the right to health and non-discrimination

by Marco Pedrazzi

1. Introduction.

The right to health has many dimensions. The aim of this paper is to have a look at the basic international standards relating to the right to health through the lens of one of these dimensions, i.e. the principle of non-discrimination. Although the right to health is enunciated in various fundamental international instruments, starting with the Constitution of the World Health Organisation (WHO), the Universal Declaration of Human Rights (UDHR) and the International Covenant on Economic, Social and Cultural Rights (ICESCR), its precise content is not yet entirely clarified. The difficulty in elaborating an appropriate definition is also due to the amplitude of the concept of health, and to the multiple connections of the right to health with other fundamental rights. However, international treaty monitoring bodies have given in recent years important contributions to the definition of this content: I refer first and foremost to General Comment n. 14 of the Committee on Economic, Social and Cultural Rights (CESCR) of 11 August 2000. A further contribution is presently given by the reports of the Special Rapporteur on the right to health nominated by the Commission on Human Rights. Both the Committee and the Rapporteur place a high emphasis on the principle of non-discrimination, underlining its relevance for the realisation of the right to health.

Non-discrimination is obviously not “the feature” characterising the right to health as such and permitting to distinguish it from other fundamental human rights. The “right of everyone to the enjoyment of the highest attainable standard of physical and mental health”, as enunciated in ICESCR, Art. 12, has been specified by CESCR, in general terms, as “a right to the enjoyment of a variety of facilities, goods, services and conditions necessary for the realization of the highest attainable standard of health”[1]. It has been further clarified as a right containing both freedoms and entitlements:

“The freedoms include the right to control one’s health and body, including sexual and reproductive freedom, and the right to be free from interference, such as the right to be free from torture, non-consensual medical treatment and experimentation. By contrast, the entitlements include the right to a system of health protection which provides equality of opportunity for people to enjoy the highest attainable level of health”[2].

Already from this first approximation of the content of the right to health, the fundamental role of the principle of non-discrimination appears quite clearly. If we consider the freedoms’ aspect, State (or private) interferences with the right to control one’s health and body are quite generally the product of discriminatory practices, be the discrimination against women, against children, against detainees or any other category. If we consider the entitlements’ aspect, the system of health protection has to provide, by definition, “equality of opportunity” for all individuals and groups: that is to say, opportunity for all, without discrimination.

2. Non-discrimination as an essential dimension of international standards on the right to health.

The non-discrimination dimension of the right to health is unequivocally spelled out in all basic international instruments referring to this right[3]. Firstly, the principle of non-discrimination is implicit in the words used to enunciate the right: “Everyone has the right to a standard of living adequate for the health and well-being of himself and of his family, including… medical care…” (Art. 25, UDHR); “The States Parties… recognize the right of everyone to the enjoyment of the highest attainable standard of physical and mental health” (Art. 12, ICESCR). By definition, the right to health is a fundamental human right which is not pertaining to citizens, or to specific sectors of the population, but to every human being: that means that every individual must be given equal opportunities to develop the highest attainable standard of health, without exception.

Secondly, the fact that the enjoyment of the right to health has to be guaranteed without discrimination is specifically provided for in the non-discrimination clauses, contained in the same instruments, and with which the articles I just referred to must be read in conjunction. Art. 2, UDHR states:

“Everyone is entitled to all the rights and freedoms set forth in this Declaration, without distinction of any kind, such as race, colour, sex, language, religion, political or other opinion, national or social origin, property, birth or other status”.

In similar terms, Art. 2.2, ICESCR states:

“The States Parties to the present Covenant undertake to guarantee that the rights enunciated in the present Covenant will be exercised without discrimination of any kind as to race, colour, sex, language, religion, political or other opinion, national or social origin, property, birth or other status”.

Where it is clear that the prohibited grounds for discrimination are not exhaustive[4]: we can mention, among other prohibited grounds, age, sexual orientation, disability, health, as it is known that, paradoxical as it may be, even the fact of being struck by certain diseases, which in the common perception are associated with a social stigma, becomes a ground for curtailing fundamental rights of the individual, and among them the right to health[5]. A specific additional provision, Art. 3, ICESCR, is dedicated to ensuring “the equal right of men and women to the enjoyment of all economic, social and cultural rights” set forth in the Covenant, including the right to health.

Articles 2 of both UDHR and ICESCR contain a general prohibition of discrimination. However, general prohibitions are not sufficient when we are confronted with the need to protect and to implement equal rights and opportunities for vulnerable categories and groups. That is why a whole set of instruments provides for specific measures in order to promote the equal enjoyment of, specifically or inter alia, the right to health of various categories or groups of people. The 1965 International Convention on the Elimination of All Forms of Racial Discrimination, the 1979 Convention on the Elimination of All Forms of Discrimination against Women, the 1989 International Convention on the Rights of the Child, the 1989 ILO Convention 169 concerning Indigenous and Tribal Peoples in Independent Countries, the 1990 International Convention on the Rights of All Migrant Workers and Members of Their Families, the various principles and standards elaborated in the framework of the United Nations or in other fora relating to the rights of persons with disabilities, of older persons, of persons in a state of detention, of persons with mental illness, of persons affected by HIV and AIDS patients, are, among others, designed to prevent discrimination and to build up an effective possibility of equal enjoyment, de jure and de facto, of the right to health by the considered categories or groups[6].

3. Non-discrimination as a fundamental right.

Obviously, non-discrimination has a yet wider application in international human rights law, as it can be said to be not only a principle necessarily characterising the enjoyment of all fundamental rights, but the content of an autonomous fundamental right not to be discriminated in any circumstance, and particularly in the enjoyment of any right (and not only fundamental ones) provided for by the State. This fundamental right to non-discrimination is enshrined, inter alia, in Article 26 of the International Covenant on Civil and Political Rights (ICCPR), and in Protocol n. 12 to the European Convention on Human Rights (ECHR), which has not yet entered into force.

It is also worth noting that the above-mentioned provisions are useful in such as they open the possibility of controlling respect of at least some basic components of the right to health, or related rights, by means of the international mechanisms designed for the protection of civil and political rights: as underlined by the Human Rights Committee (HRC) in a case involving social security benefits, Article 26, ICCPR, does not of itself “for example, require any State to enact legislation to provide for social security. However, when such legislation is adopted in the exercise of a State’s sovereign power, then such legislation must comply with article 26 of the Covenant”[7]. It is to be hoped that the entry into force of Protocol n. 12, ECHR, will give an impetus to developments of the kind also in front of the European Court of Human Rights, which has already given other examples of how the right to health or related rights can be protected under the umbrella of civil and political rights[8].

4. Non-discrimination and the essential elements of the right to health.

I will now come to examine some of the main components of the right to health, as elaborated by CESCR, under the lens of the principle of non-discrimination. I will start with the “essential elements” of the right to health as determined in General Comment n. 14: availability, accessibility, acceptability, quality.

4.1. Availability. As stressed by the Committee: “Functioning public health and health-care facilities, goods and services, as well as programmes, have to be available in sufficient quantity within the State party”[9]. Facilities include underlying determinants of health, such as safe and potable drinking water and adequate sanitation facilities. Availability does not contain of itself the requisite of non-discrimination. However, “available” means “capable of been made use of”[10]. If this capability were to be only theoretical, or open only to some sectors of the population, the right to health of people could not be said to be guaranteed.

4.2. Accessibility. That is why the requisite of accessibility is so important, and here the principle of non-discrimination fully emerges as a fundamental aspect of the whole issue. Accessible means, in fact, “accessible to all, especially the most vulnerable or marginalized sections of the population, in law and in fact, without discrimination on any of the prohibited grounds”. Accessibility has various facets. First of all, it implies that there shall not be any legal limitation, proscribing access to health care facilities by particular subjects or groups, for example foreigners, or people belonging to certain minorities. But domestic law is required much more, in terms of positive measures to overcome de facto discrimination or to prohibit discrimination by non-State actors. One form of de facto discrimination which the State shall endeavour to eliminate consists of the limits on physical accessibility which can penalise, for example, rural communities situated far away from all the main health facilities, or people with disabilities, who often don’t have physical access to facilities because of architectural barriers. Another situation requiring the State to intervene is given by obstacles to economic accessibility, or “affordability”: a fundamental requirement is that “health facilities, goods and services must be affordable to all”. A requirement that can be implemented in different ways, but which imposes that the burden of economic contributions to health care shall not be out of proportion with regard to the individual’s or family income and that individuals who are not able to pay shall not pay for health care. A last essential facet is information accessibility. Access to adequate information is essential for the prevention of a great number of diseases and health-related problems, especially as far as sexual and reproductive health are concerned: also in this case non-discrimination plays a fundamental role, as the possibility of access to information is often restricted in relation to women or other categories, such as adolescents or rural communities[11].

4.3. Acceptability. Also cultural acceptability has a relationship with non-discrimination, as health facilities, goods and services that are not culturally acceptable to a certain community, for example an indigenous population, will de facto prevent the attainment of good health standards by the members of that community, thereby ending in discrimination against them.

4.4. Quality. The last essential element envisaged by the Committee is quality. That means that health facilities, goods and services shall be scientifically and medically appropriate and of good quality. The principle of non-discrimination has a strict relationship with quality: the excellent quality of some medical facilities will prove to be discriminatory if only the rich or only some sectors of the population have access to them. Good quality means quality for everyone, without discrimination.

5. Non-discrimination and States’ general obligations.

CESCR has classified general obligations of States parties in three different categories or levels: obligations to respect, to protect and to fulfil[12]. I will now read those three levels of obligations through the lens of the principle of non-discrimination.

5.1. Obligation to respect. The obligation to respect basically imposes a duty of abstention on the part of the State. The State shall, for example, refrain from unlawfully polluting air, water and soil, thereby releasing substances dangerous for human health. It shall refrain from applying coercive medical treatments, unless on an exceptional basis for the treatment of mental illness or the control of communicable diseases. It shall refrain “from limiting access to contraceptives and other means of maintaining sexual and reproductive health, from censoring, withholding or intentionally misrepresenting health-related information”. It shall refrain from denying or limiting equal access to health services for all persons. It is not necessary to stress how this last requirement can be translated into a duty of non-discrimination.

I will just give a short example. States shall not deny or limit access to health facilities, goods and services for foreign immigrants. In regulating access to medical care for immigrants, States shall abstain from imposing requirements rendering their enjoyment of the right to health more difficult in practice. In Italy, foreign immigrants with a regular residence permit have access to the public health system on an equal footing with citizens. Illegal immigrants have access to essential medical care, at no cost, if they are not able to pay; and the medical personnel shall not signal them to the public authorities for the only reason they don’t have a residence permit: a different rule would in fact keep them away from acceding to health facilities[13]. All this is very good, and in fact the situation has probably improved in the last few years; but practical implementation is another question, and even the requirements conceived for the access to health care of legal immigrants do not adequately take into account their needs and end up imposing on them many obstacles on the road to a real equalisation with citizens[14].