The Case Of Ethiopia Law European Essay

Published Date: 02 Nov 2017

The case of Ethiopia

Introduction

The right to health

What does "right to health" mean?

Relevance of the "right" discourse in the context of health

Practical implementation and justification of social rights

Non-discrimination and equality

International and national legal provisions for the "right to health"

Governmental obligations

Free health care provision (fee-waiver system) in Ethiopia

Conclusion

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The right to health

The right to health has been recognized in various legal instruments ever since it was first mentioned in Article 25 of the Universal Declaration of Human Rights (1948) which states that "Everyone has the right to a standard of living adequate for the health and well-being of himself and of his family." The declaration also states that every individual has the right to access the fundamental determinants of health such as food, clothing, shelter, medical care and necessary social services. It also mentions the right to security in the case of facing vulnerable situations such as unemployment, sickness, disability, widowhood, old age or other lack of livelihood in circumstances beyond his/her control.

What does the "right to health" mean?

In almost 20 years of negotiation after the adoption of the Universal Declaration of Human Rights (UDHR), the General Assembly of the UN adopted two international treaties which covered almost all the rights that were first stated in the UDHR, namely the International Covenant on Civil and Political Rights (1966), and the International Covenant on Economic, Social and Cultural Rights (1966); altogether forming the International Bill of Human Rights. The right to health was further defined in the International Covenant on Economic, Social and Cultural Rights (ICESCR) as "the right of everyone to the enjoyment of the highest attainable standard of physical and mental health" in its article 12. In its second paragraph, the article also lists steps to be taken by states parties of the covenant in order to ensure the full realization of the right to health, namely reduction of stillbirth-rate and infant mortality, improvement of environmental and industrial hygiene, prevention, treatment and control of epidemic, endemic, occupational and other diseases, and creation of conducive conditions to assure all medical service as well as medical attention in the upon falling sick. The UN’s Committee on Economic, Social and Cultural Rights (hereafter the Committee) refers to these steps as "non-exhaustive examples of states parties' obligations" (General Comment 14, 2000, para.7). [1] 

The Committee also elaborates the right of health as a right to freedom and entitlement regarding one’s health. The right to freedom refers to be free from any kind of external interference in various forms such as torture, undertaking of medical experiment as well as treatment without the will of the individual. The right to entitlement on the other hand, gives emphasis to the equitable provision of health services for people to enjoy the highest attainable level of health (ibid, para. 8).

As per the General Comment of the Committee, the concept of "the highest attainable standard of health" mentioned in article 12 (1) of the ICESCR considers the available resources of the state and biological as well as socio-economic preconditions of the individual. The Committee also further refines the right to the highest attainable standard of health not to be confused with the right to have good health, nor to the protection against every possible cause of human ill health, as these cannot be ensured by a state (Ibid. para. 9.) It clearly asserted that the right to health must not be understood as the right to be healthy (Ibid. para. 8.); it rather "must be understood 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" (Ibid. para. 9.).

The Committee also emphasizes that the obligation of states parties in regards to ensuring the right to health is not limited to the provision of timely and appropriate health care, but it should also extend to the provision of underlying determinants of health, such as access to safe and potable water and adequate sanitation, an adequate supply of safe food, nutrition and housing, healthy occupational and environmental conditions, and access to health-related education and information, including on sexual and reproductive health (Ibid. para. 11.)

According to the Committee, the core elements that need to be considered by states parties in ensuring the right to health are: availability, accessibility, acceptability, and quality. Availability refers to the sufficient quantity of health facilities, goods, services, and programs that need to be made sufficiently available in a state. Accessibility refers to two separate things, namely the physical accessibility of health facilities for all segments of the population on the one hand, and the equitability of health services to everyone without discrimination on the other hand. The later also encompasses accessibility of underlying determinants of health such as safe and potable water and sanitation facilities, economic accessibility (affordability of health services by all segments of the population), and information accessibility (the right to seek, receive, and impart information and ideas concerning health issues). Acceptability refers to the medical ethics and cultural appropriateness of health facilities, goods, and services. The last core element "quality" refers to scientific and medical appropriateness as well as the good quality of all services (ibid, para. 33).

The right to health can hence, be summarized as an inclusive right which includes determinants of health that help to lead a healthy life, a right that contains freedom, a right that contains entitlement, and a right that holds core elements such as availability, accessibility, acceptability and quality. The other main instrument that defines the right to health, besides the ICESCR, is the World Health Organization’s Constitution (1946). It defines health as "a state of complete physical, mental and social well-being and not merely the absence of disease or infirmity" (p.1). The right to health is also specifically stated in many other international treaties, such as the International Convention on the Elimination of All Forms of Racial Discrimination (article 5), the Convention on the Elimination of All Forms of Discrimination against Women (articles 11and 12), the Convention on the Rights of the Child (article 24), and the International Convention on the Protection of the Rights of All Migrant Workers and Members of Their Families (articles 28, 43, 45, and 70).

What, though, does the word "right" denote in relation to health issues? The next session discusses this question by first looking at the basic elements of all rights and then by applying them to health issues.

Relevance of the "right" discourse in the context of health

Rights as Trumps

Although many writers dispute over the function of rights, it is inalienable that the notion of rights encompasses a special normative quality. The reason behind a right is so powerful that it overrides the reason behind any other objectives or claims. Dworkin’s (1984) metaphor of "trumps" implies that a right trumps any other non-right issues. [2] In categorizing something as a right, it is implied that a special precedence, importance and status is given to it. The word right in relation to health issues hence, implies that health is given a special importance and priority. This, however, does not mean that the right to health should take priority over all other rights. It merely means that the issue of health is of a paramount importance given its impact on human life. Materializing health with the discourse of rights emphasizes health as a social good rather than a mere medical issue (Leary, 1994).

Equality and Non-discrimination

Equality and non-discrimination is one of the fundamental principles of human rights which highlight the fact that all individuals are equal by virtue of the innate dignity of each human being. The UDHR articulates this principle in its Article 2 as "Everyone is entitled to all the rights and freedoms set forth in this Declaration, without distinction of any kind such as race, color, sex, language, religion, political or other opinion, national or social origin."

International law recognizes both equality and non-discrimination greatly particularly in the issues of human rights. Article 1 (3) of the UN Charter (1945), states that "promoting and encouraging respect for human rights and for fundamental freedoms for all without distinction as to race, sex, language, or religion" is one of the purposes of the UN. In light of this, all the 193 UN member countries have already received legal obligations to promote and protect the rights to equality and non-discrimination.

The International Bill of Human Rights also emphasizes equality and non-discrimination in national health care systems through its two covenants, namely the ICESR and the ICCPR. Article 2 of the ICESCR, requires states parties to ensure non-discrimination with respect to the rights in that covenant, which includes the right to health. On the other hand, Article 26 of the ICCPR declares that all people are equal before the law and have the right to the equal protection of the law without any discrimination, which applies to government regulation in any field, including health. Hence, it can be inferred that even those states that have not officially recognized the right to health are bound by the rights to equality and non-discrimination when they act in this area.

Dignity

The inherent dignity of each human being is the basis for the concept of rights. The UDHR states that "recognition of the inherent dignity and of the equal and inalienable rights of all members of the human family is the foundation of freedom, justice and peace in the world." According to Amnesty International (1999), human dignity is also one of the fundamental human rights. [3] Dignity is very important to every human being, irrespective of their situation, including medical treatments or any other healthcare settings.

the discourse "right" vis-à-vis health issues also shows that the dignity of human beings must be the center of attention in all aspects of health including medical experimentation and limitations in the name of health. The good of the collective society should not give more value or focus than the dignity of the individual. In other words, "the greater good of the greater number may not override individual dignity" (Leary, 1994, p.37). [4] 

Participation and Inclusion

Participation and inclusion is also one of the principles of human rights, which emphasizes that all people have the right to participate in decision-making processes that affect their lives and to access information regarding such issues. Rights-based approaches require a high degree of participation by all peoples irrespective of their backgrounds. Participation is also stated as "the right of rights" since it is the fundamental right of people "to have a say in how decisions that affect their lives are made" (as cited in Waldron, 1998, p. 307). [5] 

The Committee also emphasizes the importance of the community participation in decision making processes of health and health-related issues. It requires states to follow participatory methods in adopting, implementing, and reviewing a national public health strategy and plan of action (General Comment, 2000, para. 43 (f)). The World Health Organization (WHO) also recognizes the importance of participation in article 4 of its Declaration of Alma-Ata on Primary Health Care (1978) by stating that "people have the right and duty to participate individually and collectively in the planning and implementation of their health care" (p. 1) [6] 

Practical implementation and justification of social rights

As indicated in the ICESCR and many other international as well as regional and national treaties, the right to health is one of the social rights of human beings. "Social rights are conventionally understood as rights to the meeting of basic needs that are essential for human welfare" (as cited in Mantouvalou, 2010, p.3) [7] . The practical implementation and justifiability of these rights, however, remain in controversy. Some writers argue that social rights are not strong enough to be rights because they cannot be implemented by judges. They argue that judicial implementation is possible only under circumstances wherein judges can overturn laws, and hence, real rights are those that are strictly negative obligations that require governments to respect all the legal rights that are owed to a person. Such argument puts due process rights far apart from real rights. According to Nickel (2007), however, the argument that due process rights are not real rights is implausible because of the "prominent place of due process rights in historic bills of rights" (p. 143). He asserts that a successful implementation of rights can be achieved only through the combined effort by judges and legislators. Nickel defends social rights as human rights arguing that "once they have been legislatively defined and funded, judges can implement these rights" (p. 144).

Regarding the justifiability of social rights, Shue (1996) uses linkages argument to defend their justifiability with respect to subsistence right:

No one can fully, if at all, enjoy any right that is supposedly protected by society if he or she lacks the essentials for a reasonably healthy and active life. Deficiencies in the means of subsistence can be just as fatal, incapacitating, or painful as violations of physical security . . . Any form of malnutrition, or fever due to exposure, that causes severe and irreversible brain damage, for example, can effectively prevent the exercise of any right requiring clear thought (p. 24-25).

Nickel (2007) puts Shue’s point in a more probabilistic form as:

"Without protections for subsistence, basic health care, and basic education, people in severe poverty will frequently be marginal right holders. They will be unlikely to know what rights they have or what they can do to protect them, and their extreme need and vulnerability will make them hard to protect through social and political action. If you want people to be capable rightholders who can effectively exercise, benefit from, and protect their rights then you must ensure their enjoyment of basic social rights" (p. 145).

The Committee also emphasizes the relationship between the right to health and the realization of other human rights such as the rights to food, housing, work, education, human dignity, life, non- discrimination, equality, privacy, access to information, as well as to the prohibition against torture and the freedoms of association, assembly and movement in its General Comment 14 (2000, para. 3). Besides, the ICESCR declares rights which are indirectly linked to the right to health and which affect the enjoyment of this right such as the right to: non-discrimination (article 2); equality between men and women (article 3); the right to food, clothing and housing (article 11); the right to education (article 13); and the right of everyone to enjoy the benefits of scientific progress and its application and the freedom to perform scientific research (article 15).

Non-discrimination and equality

Non-discrimination is one of the fundamental principles of human rights that applies to all rights and that has a strong link to the concept of health equity. The International Bill of Human Rights contains several provisions on non-discrimination and equality. Article 2 of the Universal Declaration on Human Rights (1948) states that everyone is entitled to all human rights without distinction based on "race, color, sex, language, religion, political or other opinion, national or social origin, property, birth or other status." Similarly, Article 2 of both the ICCPR and the ICESCR contains non-discrimination provision, which requires state parties to respect and ensure the rights in the covenants without distinction on the basis of the grounds listed in Article 2 of the UDHR. The other key provision in the UDHR is Article 7, which entitles everyone to the "equality before the law" as well as "equal protection of the law." Even if there is no explicit equality provision in the ICESCR that is similar to Article 7 of the UHDR, the ICCPR contains another key provision on equality and non-discrimination in its Article 26, which states:

All persons are equal before the law and are entitled without any discrimination to the equal protection of the law. In this respect, the law shall prohibit any discrimination and guarantee to all persons equal and effective protection against discrimination on any ground such as race, color, sex, language, religion, political or other opinion, national or social origin, property, birth or other status.

In its General Comment 20 on non-discrimination in economic, social, and cultural rights (2009), the Committee also remarked that race and color includes an individual’s "ethnic origin", and it named these categories as "express grounds" for which discrimination is prohibited (para. 19). Among the list of "express grounds", the terms "social origin," "property," and "birth" clearly refer to wealth and to a relative social and economic status of an individual as well as the family that the individual comes from. It thus, explicitly includes both socioeconomic resources and social position as forbidden bases for discrimination (ibid, para 24-26). The "other status" category of prohibited grounds for discrimination states that the "nature of discrimination varies according to context and evolves over time," hence, a "flexible approach to interpreting ‘other status" is required so as to capture other forms of differential treatment that cannot be easily justified (ibid, para. 27). The "other status" category of prohibited grounds also expand to more issues such as disability (paragraph 28), age (paragraph 29), nationality (paragraph 30), marital and family status (paragraph 31), sexual orientation and gender identity (paragraph 32), health status (paragraph 33), place of residence (paragraph 34), and economic and social situation (paragraph 35) of the General Comment 20.

Even though the ICESCR itself has not explicitly stated about giving priority attention to vulnerable members of a society, the Committee has made it crystal clear that giving priority attention to vulnerable groups (such as women and children) is one of the Covenant’s major intents, and one of the core obligations of states parties. The Committee has also recommended states parties to take affirmative action in order to promote the achievement of rights by vulnerable groups (especially when they have justified historically experienced discrimination); provided the action will be removed once the group is no longer vulnerable. The General Comment 16 (2005) on stated that:

The principles of equality and nondiscrimination, by themselves, are not always sufficient to guarantee true equality. Temporary special measures may sometimes be needed in order to bring disadvantaged or marginalized persons or groups of persons to the same substantive level as others. Temporary special measures aim at realizing not only de jure or formal equality, but also de facto or substantive equality for men and women. However, the application of the principle of equality will sometimes require that States parties take measures in favor of women in order to attenuate or suppress conditions that perpetuate discrimination. As long as these measures are necessary to redress de facto discrimination, and are terminated when de facto equality is achieved, such differentiation is legitimate (Para. 15).

The responsibility of states is not limited to endeavor to eliminate intentional discriminatory actions, but it is also extended "to end de facto discrimination, that is, structural or institutional patterns resulting in, exacerbating, or perpetuating inequality in obstacles to realizing rights, regardless of intent" (Braveman 2010, p.40). The International Convention on the Elimination of All Forms of Racial Discrimination (1965) states that "Each State Party shall take effective measures to review governmental, national and local policies, and to amend, rescind or nullify any laws and regulations which have the effect of creating or perpetuating racial discrimination wherever it exists" (Article 2c). In its General Comment 20, the Committee also defined discrimination as "any distinction, exclusion, restriction or preference or other differential treatment that is directly or indirectly based on the prohibited grounds of discrimination, and which has the intention or effect of nullifying or impairing the recognition, enjoyment or exercise on an Equal footing of [ICESCR] rights" (as cited in Braveman 2010, p. 40).

Inequalities in health implicitly show violation to the right to health, which is enshrined in many international human rights treaties. As per the ICESCR General Comment 14 (2000), states parties to the Covenant must ensure equal access to health care and to the underlying determinants of health (para. 34-36). Likewise, fees for health services must be based on the principle of equity because "poorer households should not be disproportionately burdened with health expenses as compared to richer households" (ibid, para. 12(b) (iii)). In addition, the Committee also discourages the allocation of health resources that favors expensive curative health services (which can be accessed only by the few privileged group of the society) at the cost of primary and preventative health care, which benefits the larger population (ibid, para. 19).

The ICESCR in general, recognizes the fact that different states parties have different levels of resource constraint and hence, it allows progressive realization of the right to health. However, it imposes an immediate obligation upon each state party to ensure the exercise of the right to health without discrimination of any kind (ibid, para. 30). Besides, each state party does also have an immediate obligation "to ensure equitable distribution of all health facilities, goods and services" (ibid, para. 43e).

International and national legal provisions for the "right to health"

International Provisions

Several international treaties and declarations provide legal backing for the right to health. Most of them also contain additional paragraphs listing fundamental obligations of states parties to ensure the fulfillment of the right. Although the Universal Declaration of Human Rights (1948) is not a treaty, most of its provisions have already gained the status of Customary International Law (Leary, 1994). Article 25 of the UDHR states:

Everyone has the right to a standard of living adequate for the health and well-being of himself and of his family, including food, clothing, housing and medical care and necessary social services, and the right to security in the event of unemployment, sickness, disability, widowhood, old age or other lack of livelihood in circumstances beyond his control.

The WHO Constitution (1946) also described the right to health in the second paragraph of its Preamble as: "The enjoyment of the highest attainable standard of health is one of the fundamental rights of every human being without distinction of race, religion, political belief, economic or social condition." The discourse "the highest attainable standard of health" of the WHO has thereafter inspired provisions of many international treaties such as:

International Covenant on Economic, Social and Cultural Rights (1966), Article 12(1): "The States Parties to the present Covenant recognize the right of everyone to the enjoyment of the highest attainable standard of physical and mental health."

Convention on the Rights of the Child (1989), Article 24(1): "States Parties recognize the right of the child to the enjoyment of the highest attainable standard of health."

The WHO Declaration of Alma-Ata on Primary Health Care (1978), also used similar language reiterating that health, which is a state of complete physical, mental and social wellbeing, and not merely the absence of disease or infirmity, is a fundamental human right and that the attainment of the highest possible level of health is a most important world-wide social goal whose realization requires the action of many other social and economic sectors in addition to the health sector.

The WHO Constitution also emphasizes the principle of non-discrimination on the grounds of race, religion, political belief, economic, or social conditions. This emphasis on non-discrimination with respect to health is reaffirmed in the following international conventions:

Convention on the Elimination of All Forms of Racial Discrimination (1969), Article 5(e) (iv) provides that "States Parties undertake to prohibit and eliminate racial discrimination in the enjoyment of the right to public health, medical care, social security and social services."

Convention on the Elimination of All Forms of Discrimination against Women (1979), Article 11 (l) (f) provides that "States Parties shall take all appropriate measures to eliminate discrimination against women in the enjoyment of the right to protection of health and to safety in working conditions, including the safeguarding of the function of reproduction." Correspondingly, Article 12 of the same convention provides that "States Parties shall take all appropriate measures to eliminate discrimination against women in the field of health care in order to ensure, on a basis of equality of men and women, access to health care services, including those related to family planning."

National Provisions

The constitutions of some states include provisions on the right to health…..

Governmental obligations

Beitz (2011) explained the role of governments in human rights by proposing a two-level model, which expresses the division of labor between states and the international community. In his model, he delineates states as the bearers of the primary responsibility in respecting and implementing human rights, while he explained the international community as agents that serve as guarantors of these responsibilities. The ICESCR also supports this view by stating the obligation of states parties in its Article 2 (1) as:

Each State Party to the present Covenant undertakes to take steps, individually and through international assistance and co-operation, especially economic and technical, to the maximum of its available resources, with a view to achieving progressively the full realization of the rights recognized in the present Covenant by all appropriate means, including particularly the adoption of legislative measures.

According to this article, states bear the primary responsibility to progressively achieve the full realization of the rights under the covenant. The progressive realization mentioned in the article implicitly recognizes the resource constraints of states and the fact that it takes time to implement provisions in the treaty. Hence, some components of the rights enshrined by the covenant, including the right to health, are subject to progressive realization. The phrase "available resources" mentioned in the article refers to both the existing resources within a state and the resources mobilized from the international community through international cooperation and assistance. International assistance and cooperation is not something that substitutes governmental obligations, but it only comes up as a remedy in particular situations wherein the government fails to implement its responsibilities and when it requires assistance from other states. States in general have the responsibility of international assistance and cooperation, and thus should provide economic and technical assistance to enable needy states to meet their obligations in relation to the right to health (General Comment 3, 1990).

Beitz (2011) also reflected his concern that this two-level model "may seem objectionable for the prominent role it assigns to states" or in other words, it "might prompt the question whether the model is excessively state-centric" (p.122). He also mentioned the possibility that one might also question whether states can be relied upon to protect their residents against the human rights threat by non-state actors. Beitz however, commented on these objections shortly as unworthy reasons to revise his two-level model. He said:

The human rights treaties all place the primary responsibility for compliance on states and rely on states to regulate the behavior of non-state actors. The formal mechanisms for monitoring human rights violations are overwhelmingly constituted of states and their reporting procedures rely primarily on states (nongovernmental organizations have an important but subsidiary role) (p.124).

In harmony with Beitz’s opinion, the Committee has imposed three categories of obligations on states parties regarding the right to health, namely the obligation to respect, to protect, and to fulfill. The obligation to "respect" requires States to refrain from interfering with or violating directly or indirectly the right to health by its own actions such as committing torture by states organs. The Committee also emphasizes that States parties are also expected to respect the enjoyment of the right to health in other countries in its General Comment 14. The obligation to "protect" requires States to prevent third parties (non-state actors) from interfering with or violating the right to health. It may be to prevent such actions as preventing tobacco companies’ promotion of tobacco use. The Committee further noted that, States parties should take appropriate measures when negotiating international or multilateral agreements to ensure that these instruments will not bring an adverse impact on the right to health of their citizens. Finally, the obligation to "fulfill" requires states to take measures necessary to ensure the right such as to adopt appropriate legislative, administrative, budgetary, judicial, promotional and other measures towards the full realization of the right to health. It may be requiring a state to adopt a Primary Health Care strategy and to emphasize on preventive rather than curative services (General Comment 14, 2000, para. 33; Leary, 1994).

Cognizant of the fact that different States parties have different capacities to fulfill their obligations in ensuring the right to health, the Committee specifies core obligations that must be fulfilled irrespective of a State party’s resources. These core obligations are to: ensure the right of access to health facilities, goods and services on a non-discriminatory basis; ensure access to the minimum essential food that is nutritionally adequate and safe; ensure access to basic shelter, housing and sanitation, and an adequate supply of safe and potable water; provide essential drugs, as defined under the WHO Action Program on Essential Drugs; ensure equitable distribution of all health facilities, goods and services; and adopt and implement a national public health strategy and plan of action addressing the health concerns of the whole population (General Comment 14, 2000, para. 43).

In its Declaration of Alma-Ata on Primary Health Care (1978), the WHO also elaborated the means that can be used both by developed and developing countries to achieve their obligations in providing the "highest attainable standard" of health mentioned in the article 12 of the ICESCR. The main points of this Primary Health are approach can be summarized as: emphasis on maternal and child health, significance of community participation in the planning and implementation of health care, importance of health education, emphasis on preventive health services more than curative measures, priority to vulnerable and high risk groups (such as women and children) as well us to underprivileged segments of the society, and equal access to health care at an affordable price to the community. It is remarkable that this approach emphasizes many elements that are fundamental to any rights such as equality, participation, and inclusion of the society’s vulnerable groups, which are partly discussed in the second section of this paper.

Free health care provision (fee-waiver system) in Ethiopia

Conclusion