The Health Equality And Human Rights Law European Essay

Published Date: 02 Nov 2017

Bezawit Hailu Gebre

Matriculation no. 17011382

Transition Management

Justus Liebig U

Table of Contents

Introduction

The right to health

What does “right to health” mean?

Relevance of the “right” discourse in the context of health

Practical implementation and justifiability of social rights: is the right to health really a right?

Non-discrimination and equality

International and national legal provisions

Governmental obligations

Fee-waiver system in Ethiopia

Conclusion

Introduction

The fields of health equity and human rights, even though different in languages and perspectives, they still share several underlying concepts. Health equity is a concept which is concerned with the ethical notion of distributive justice (Braveman, 2010). Ensuring health equity means minimizing inequalities in health and also in the key determinants of health. The key human rights principle behind health equity is thus ‘non-discrimination and equality’. The concept of health equity can also be regarded as the right of every human being to health without any kind of discrimination.

The right to health is one of the social rights that every human being is entitled to enjoy as explicitly provided by the Universal Declaration to Human Rights (UDHR, 1948), by the International Covenant on Economic, Social, and Cultural Rights (ICESCR, 1966) and by many other legal instruments. The practical implementation of this right, however, is confronted with magnitude of controversies between different scholars and writers. Some writers put the right to health under the question of being a real right due to its difficulty to be implemented by judges, while others criticize it due to its dependence on international assistance and cooperation to be implemented. There are also some writers that put the justifiability of the right to health under question, while others defend it as a strong human right. The present paper reviews various literatures that are pertinent to the question “is the right to health really a right?”, and brings together the opposing opinions of different writers in this regard. Besides, in order to give a practical touch to the theories, the paper also reviews how the government of Ethiopia performs its obligation to ensure the right of its citizens to health and how it works toward equalizing health services without discrimination based on economic status.

The paper also compiles the provisions of relevant international legal instruments as well as comments given by their respective committees to explain its theme. National legal provisions of the country in discussion will also be reviewed to see the legal backing to the current practice toward enhancing health equity. In general, the upcoming sections of the paper will attempt to explore the connections between human rights and health equity.

The right to health

The right to health has been recognized in various legal instruments ever since it was first mentioned in the Universal Declaration of Human Rights 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” (UDHR, 1948, Article 25). 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.

What does the “right to health” really mean?

Almost 20 years after the adoption of the 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 (ICCPR) and the International Covenant on Economic, Social and Cultural Rights (ICESCR). The right to health was also defined in the ICESCR as “the right of everyone to the enjoyment of the highest attainable standard of physical and mental health” (ICESCR, 1966, 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 complete 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 services as well as medical attention 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).

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 should extend beyond the provision of timely and appropriate health care, 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).

Regarding the obligation of governments, 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” (ibid, para. 12). 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). According to the Committee, every individual has the right to get available, accessible, acceptable, and good quality health services.

The right to health can hence, be summarized as an inclusive right which includes underlying 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 is the World Health Organization’s Constitution. In its preamble, it defined the right to health as the fundamental rights of every human being to the “enjoyment of the highest attainable standard of health without distinction of race, religion, political belief, economic or social condition” (WHO, 1946, 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, the Convention on the Elimination of All Forms of Discrimination against Women, and the Convention on the Rights of the Child.

What, though, does the word “right” denote in relation to health issues? The next session discusses this question by listing some basic elements of all rights and 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. 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).

Non-discrimination and Equality

Non-discrimination and equality 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 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” (UDHR, 1948, article 2).

International law recognizes both Non-discrimination and equality greatly particularly in the issues of human rights. The UN Charter, also states that “promoting and encouraging respect for human rights and for fundamental freedoms for all without distinction as to race, sex, language, or religion” (UN, 1945, Article 1 (3)) 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 as well as to protect the rights to non-discrimination and equality.

The International Bill of Human Rights also emphasizes non-discrimination and equality in national health care systems through its two covenants, namely the ICESR and the ICCPR. The ICESCR, requires states parties to ensure non-discrimination with respect to the rights in that covenant, which includes the right to health (ICESCR, 1966, Article 2). On the other hand, 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 actions and policies in any field, including health (ICCPR, 1966, Article 26). Hence, even those states that have not officially recognized the right to health are obligated to ensure the rights to non-discrimination and equality whenever they engage in this area.

Dignity

The inherent dignity of each human being is the basis for the concept of rights in general. 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" (UDHR, 1948, p.1) in its preamble. According to Amnesty International (1999), human dignity is also one of the fundamental human rights. 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 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).

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. A rights-based approach requires a high degree of participation by all peoples irrespective of their backgrounds (UNFPA, 2005) [1] . 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).

The Committee also emphasizes the importance of community participation in decision making processes of health and health-related issues. It requires states to follow participatory methods in adopting, implementing, and reviewing their national public health strategy and plan of action (General Comment 14, 2000, para. 43 (f)). The World Health Organization also recognizes the importance of participation in its Declaration of Alma-Ata on Primary Health Care by stating that “people have the right and duty to participate individually and collectively in the planning and implementation of their health care” (WHO, 1978, p. 1).

Practical implementation and justifiability of social rights: is the right to health really a right?

As indicated in the ICESCR and many other international and national legal provisions, the right to health is one of the social rights of every human being. “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). 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 Nickel (2007). According to Nickel, 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” (ibid, p. 143). He also explained that a successful implementation of rights can be achieved only through the combined effort of judges and legislators. Nickel defends social rights as real human rights arguing that “once they have been legislatively defined and funded, judges can implement these rights” (ibid, p. 144).

The other critical issue that many scholars argue against the practical implementation of social rights is the requirement of international cooperation in implementing social rights. As mentioned in the ICESCR, international cooperation is required from each state party, especially in terms of economic and technical assistance, in order to achieve the full realization of social rights (ICESCR, 1966, article 2 (1)). Beitz (2011) also developed a two-level human rights model, which expresses the division of labor between states and the international community (outside agents), in such a manner that the international community will provide assistance when governments fail to perform their obligations. [2] The plausibility of putting the international community as the second-level addressee of social rights, however, puts social rights under the question of being real human rights in the eyes of some scholars. Their argument mainly depends on two difficulties in putting the international community as the second-level addressee, i.e.

The difficulty to identify which outside agents have reasons to act, and

The difficulty to decide what kinds of reasons are weighty enough for outside agents to act (ibid).

These difficulties lead to a conclusion that right-holders have no basis for identifying their addressees, nor do the addressees have a way to decide if they are obliged to act. Hence, social rights are under question of being practical to be considered as real human rights. The famous philosophy professor O’Neill (2005) emphasized this view by arguing that a value cannot count as a right, unless it can be seen as the ground of a claim against a specific addressee. She pressed that “we normally regard supposed claims or entitlements that nobody is obligated to respect and honor as null and void, indeed undefined.” The values expressed in such terms are better called “aspirations”, for they describe conditions that their beneficiaries have a reason to want, but that no identifiable agent has an obligation to provide (p. 428-430).

Beitz defended such kind of objections by arguing that even if there is no single reason that applies to all cases and to all outside agents, there are always different possibilities that suggest a reason for an external action depending on the context of the needy state. If one insists that there can be no social right unless the available reasons are the same in all cases, then “one will be tempted by skepticism” (Beitz, 2011, p.170). He also added that the pattern of interaction between needy states and relatively affluent ones also creates a possibility for a reason to act. In today’s world of interdependence, in which poor and non-poor countries equally cooperate, there are always magnitude of reasons that are concerned with fairness of individual transactions, such as “not to cause harm, to compensate for the results of harm done earlier, not to exploit one’s bargaining advantage, to respect the interest in collective self-determination” and many more (ibid, p.171). In a nutshell, he concluded that countries always have some reason to help the needy ones with which they interact, even though the reasons may vary in strength and grounds.

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 right-holders who can effectively exercise, benefit from, and protect their rights then you must ensure their enjoyment of basic social rights (p. 145).

The ICESCR also 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. The Universal Declaration on Human Rights 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” (UDHR, 1948, article 2). Similarly, Article 2 of both the ICCPR and the ICESCR contains non-discrimination provision, which requires state parties to respect and ensure the rights without distinction on the basis of the grounds listed in Article 2 of the UDHR. The other key provision in the UDHR entitles everyone to the “equality before the law” as well as “equal protection of the law” (UDHR, 1948, article 7).

In its General Comment 20 on non-discrimination in economic, social, and cultural rights, 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 (General Comment 20, 2009, 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. Thus, both socioeconomic resources and social position are included as prohibited 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” (ibid, para. 27) hence, a “flexible approach to interpreting other status” (ibid, para. 27) is required so as to consider other forms of “differential treatment” that are difficult to be justified (ibid, para. 27). The “other status” category of prohibited grounds also expand to more issues such as “disability, age, nationality, marital and family status, sexual orientation and gender identity, health status, place of residence, and economic and social situation” (ibid, para. 27).

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 that the action will be removed once the group is no longer vulnerable. The General Comment 16 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 (General Comment 16, 2005, Para. 15).

The responsibility of states is not limited to eliminate intentional discriminatory actions, but also “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 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” (ICEAFRD, 1965, 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, states parties to the Covenant must ensure equal access to health care and to the underlying determinants of health (General Comment 14, 2000, para. 34-36). Likewise, user charges for health services must be in compliance with 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 permits for progressive realization of the right to health. However, it also 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

International legal 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 UDHR is not a treaty, most of its provisions have already gained the status of Customary International Law (Leary, 1994). 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 (UDHR, 1948, article 25).

The WHO Constitution 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” (WHO, 1946, p.1) The discourse “the highest attainable standard of health” (ibid) of the WHO has thereafter inspired provisions of many international treaties such as:

The ICESCR provides that “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” (ICESCR, 1966, Article 12(1)).

Convention on the Rights of the Child provides that “States Parties recognize the right of the child to the enjoyment of the highest attainable standard of health” (CRC, 1989, Article 24(1))

The WHO Declaration of Alma-Ata on Primary Health Care, also used similar language restating 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 most important world-wide social goal whose realization requires the action of many other social and economic sectors in addition to the health sector (WHO, 1978, p.1).

The WHO Constitution also emphasizes the principle of non-discrimination on the grounds of “race, religion, political belief, economic, or social conditions” (WHO, 1946, p.1). 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 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” (CEAFRD, 1969, Article 5(e) (iv)).

Convention on the Elimination of All Forms of Discrimination against Women 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” (CEAFDW, 1979, Article 11 (l) (f)). Correspondingly, 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” (ibid, article 12).

National legal provisions

In addition to ratifying all of the abovementioned international Conventions and Declarations, the government of Ethiopia has also explicitly stated its obligation to ensure the right to health and other social rights in its constitution (1995), Article 41 as: “The State has the obligation to allocate an ever increasing resource to provide to the public health, education and other social services”.

In the past 15 years, the government has been relentlessly working on designing and implementing macro and sector-specific policies, strategies and programs aiming to improve the health system of the country, and the health status of its citizens [3] . In 1998, the government endorsed the Health Care and Financing (HCF) Strategy with the purpose of increasing resources to the health sector, improving efficiency in resource allocation and utilization, enhancing quality and equity, and ensuring financial sustainability as well as in delivery of health care services.

Improving health equity through providing financial protection for the poorest segment of the population is one of the major goals of the HCF reform. Accordingly, the government has established new “fee-waiver system” based on the HCF Strategy, which is aimed at enhancing equity of and access to health services by offering clinical services to the core poor, completely free of charge. Even though there had already been such provision of free health care service for the poor, the system was so disorganized that it was widely open for abuse by the well-off segment of the population, and that the cost remained unreimbursed. The new fee waiver system is however, a strongly systematized one whose implementation will be discussed in section 6 of the present paper. The guiding principle of this fee waiver system is founded on the Health Policy (1993) of the country which stipulates that no individual shall be denied of medical services in public health facilities due to his/her inability to pay.

Subsequently, the regions of the country adopted the HCF Strategy and step wisely enacted the Health Service Delivery and Administration (HSDA) legal framework: proclamation, regulation, and directive. These legal documents encompass six [4] main components of the reform one of which is fee waiver system. Among other things, the HSDA clearly explains the underlying principles upon which the fee waiver system is based, the eligibility criteria to select beneficiaries of the system, the main actors of the system, and the implementation procedure to be followed.

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 outside agents that serve as guarantors of these responsibilities. The ICESCR also states the obligation of states parties 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 (ICESCR, article 2 (1)).

According to this article, states bear the primary responsibility to progressively achieve the full realization of the rights under the Covenant. The phrase “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. 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 cooperation and assistance. International assistance and cooperation is not something that substitutes governmental obligations, but it only comes as a remedy in particular situations wherein the government fails to implement its responsibilities and requires assistance from other states. States in general have the responsibility of international assistance and cooperation, and thus are expected to provide economic and technical assistance to enable needy states to meet their obligations with respect to the right to health (General Comment 3, 1990).

Beitz (2011) 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. He then commented on these objections arguing that:

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 opinions, the Committee has also 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 avoid interfering with or violating directly or indirectly the right to health by its own actions such as committing torture by states organs. It is also emphasized that states parties are also expected to respect the realization of the right to health abroad. 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” (General Comment 14, 2000, para. 33). It may be requiring a state to adopt a Primary Health Care strategy and to emphasize on preventive rather than curative services (ibid; 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 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.

Fee-waiver system in Ethiopia

In order to ensure the full enjoyment of the right to health by its citizens without any discrimination based on their economic status, the government of Ethiopia has established the new fee-waiver system since the adoption of its HCF Strategy in 1998. The fee waiver system is aimed at ensuring health equity by providing clinical services to the poorest segment of the population completely free of charge. The implementation of the system involves three core processes: selection of beneficiaries (indigents) by local selection committee, certification of the selected beneficiaries by an authorized entity, and reimbursement of service providers’ cost by the waiver granting entity. The fee waiver system is established based on the national legal provisions mentioned in section 4 of this paper. The Health Service Delivery and Administration (HSDA) proclamation, which is adopted by various regions of the country at different times, has identified the authorized entities to implement the system, whose mandates enable them to ensure health equity. These entities are namely: the District/City Administration office, the Community Mobilization office, the Labor and Social Affairs office, the Food Security office, and the Disaster Prevention and Preparedness office. These organizations are responsible to implement the waiver system for different categories of target groups in such a manner that the District/City Administration office is responsible for indigents that are registered as permanent residents of the district/city; the Community Mobilization office, and the Labor and Social Affairs office are responsible for people without permanent address such as homeless/street and abandoned children; the Food Security office, and the Disaster Prevention and Preparedness office are responsible for people affected by natural/manmade calamities.

Among other things, the major roles and responsibilities of these organizations include creating awareness on the waiver system to the community, setting selection criteria based on the specific context of their respective target groups, establishing fee waiver selection and approving committees from among the community, issuing/granting waiver certificate for the selected beneficiaries, allocating budget to reimburse service providers, signing contractual agreement with public health facilities (service providers), and monitoring the proper implementation of the system for their respective target groups. The community, the Bureau of Finance and Economic Development (BoFED), and the public health facilities are also among the main actors in implementing the waiver system. BoFED and its extended structure play a key role in implementing the waiver system by facilitating the budget allocation process for the system, by providing technical assistance to ensure appropriate financial recording as well as reporting, and by facilitating reimbursement to service providers.

The beforehand selection and certification of beneficiaries during a fixed period of time in a year rather than at the spot of sickness is one of the basic changes and advantages introduced by the new fee waiver system over the previous one. To this effect, the District/City Administration cabinet is responsible to set selection criteria, and to establish selection committee at village level, and to establish approval committee at district/city level; both committees are composed of members who represent the government structure and the community.

The key role of the village selection committee is to create awareness among the community and to carry out primary selection of beneficiaries based on the criteria set by District/City Administration. The selection criteria may probably vary from village to village based on their specific contexts, but it must be based on the ability to pay of an individual or a household. No any criterion that leaves a space for adverse selection such as disease type or profession is used in selecting beneficiaries. The selection committee is also expected to conduct meetings with the community of the village so as to ensure their participation and to make appropriate amendments on the primary selection if required, and then to send the list of selected beneficiaries to the district level approving committee along with the minute of the meetings. The approving committee reviews the proposed list of beneficiaries and approves/disapproves the village level selection, and finally proposes for the issuance of the waiver certificate for qualified beneficiaries. It also proposes for the budget allocation to be approved by the District/City Administration cabinet. In addition, the approving committee is also supervise the proper implementation of the fee waiver system in the district/city administration, hears complaints from beneficiaries, and proposes solutions for further improvement.

The purpose of this section is to show that the government of Ethiopia has taken the primary responsibility of ensuring the right to health and enhancing health equity through its abovementioned organs. However, like many poor countries, Ethiopia’s health sector is also highly supported the international cooperation. According to the National Health Accounts (NHA, 2010) of Ethiopia, only 21% of the country’s health expenditure is covered by the government treasury, while the lion share (40%) is covered by rest of the world. This is in harmony with Beitz’s two-level model of human rights and the provision of the ICESCR, article 2 (1) which requires each state party to participate in international assistance and cooperation in order to achieve the full realization of social rights.

Conclusion

The human rights approach to health recognizes the joint interests of the state on the one hand, and users on the other, in realizing the right to health. As explained in the previous sections, every human being is entitled with the right to health without discrimination on the basis of any ground. This right is firmly established by several international legal instruments, most of which were mentioned in this paper. Despite their firm legal backing, however, the practical implementation of social rights including the right to health has been questioned by many scholars and writers.

Some writers argue that social rights are not strong enough to be rights because they cannot be implemented by judges. With this argument, they put due process rights way apart from real rights. According to Nickel (2007), however, due process rights have a prominent place in historic bills of rights, and hence, such an argument which concludes due process rights as unreal rights is implausible. Besides, the successful implementation of rights can be achieved only through the combined effort of judges and legislators. Once they have been legislatively defined and funded, social rights can be implemented by judges. Hence, every social right including the right to health is a real human right.

Other writers argue that social rights are not real rights because their implementation calls for international cooperation and assistance from outside agents, which cannot be relied up on. According to their opinion, putting outside agents as the second-level addressees of social rights makes the practical implementation of social rights highly questionable. This is mainly because of the difficulty to identify which outside agents have reasons to act, and the difficulty to decide what kinds of reasons are strong enough for outside agents to act. Beitz (2011) defended such kind of objections by arguing that even if there is no single reason that applies to all cases and to all outside agents, in today’s world of interdependence, there are always different possibilities that suggest a reason for an external action depending on the context of the needy state and depending on the pattern of the interaction between needy states and relatively affluent ones.

Beitz’s two-level model of human rights which assigns the primary responsibility to states and which puts the international community as guarantors of the rights through international cooperation has also been criticized by some scholars. In the real world, however, the practice of many developing countries in implementing human rights is usually in harmony with this two-level model. The ICESCR also states the same division of labor between states and the international community in its article 2 (1). As explained in the previous section, Ethiopia’s experience in implementing the right to health and in enhancing health equity shows the fact that the state has taken the primary responsibility, but it still depends on financial as well as technical assistance of the international community to meet its obligations.