Interpreting the right to health under the International ... · Declaration of Human Rights (UDHR) or the International Convention on the Elimination of all forms ... the ICCPR and

Interpreting the right to Interpreting the right to health under the health under the

International Convention on International Convention on the Elimination of all forms the Elimination of all forms

of Racial Discriminationof Racial Discrimination

Dabney P. Evans, MPH

[email protected]

© Dabney P. Evans, 2007

Infant Mortality Rates by Race:United States, 1915-1997*

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*Note: For years 1915-1960, “White” included persons stated to be “White,”“Cuban,” “Mexican,” or “Puerto Rican.” All others during that time period were referred to as “Nonwhite.”


Black-White Ratio of Infant Mortality,United States: 1915-1997*

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*Note: For years 1915-1960, “White” included persons stated to be “White,” “Cuban,” “Mexican,”or “Puerto Rican.” All others during that time period were referred to as “Nonwhite.”

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AIDS Case Rates per 100,000Population by Ethnicity: United States,

1990-2000

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*Persons of Hispanic origin may be of any race.


AIDS Rate Ratios by Ethnicity as Compared to Whites: United States,

1990-2000

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Primary and Secondary Syphilis Reported Rates per 100,000 Population by Ethnicity: United States, 1995-1999

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Primary and Secondary Syphilis Rate Ratios by Ethnicity Compared to Whites: United States, 1995-1999

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““ RaceRace”” still matters in still matters in many contexts including many contexts including

healthhealth

THE US has ratified ICERD so…


Research Questions� What are the human rights obligations in regards to

the right to health under Article 5(e)iv of the International Convention on the Elimination of all forms of Racial Discrimination?

� What is the relationship of race and racial discrimination to the provision of health care, goods, services, and health outcomes in the selected countries?

� How do international human rights standards aid in addressing the issue of racial discrimination in the provision of health care, goods, services, and health outcomes in the selected countries?

� What are the structural, cultural, and political barriers to the adoption and application of international human rights standards in the selected countries?


This study:

� Describes how the concepts of race, racial discrimination and the right to health under international law are understood;

� Proposes a model for understanding and interpreting these obligations;

� Examines the legal obligations of the United States and the European Union with regards to racial discrimination under international human rights and domestic law as well as the policy and practical applications of such legislation;

� Analyzes the public health systems of the selected countries/regions, in light of the proposed model with particular attention to the causes of health disparities among peoples of African descent and consequences of racially discriminatory treatment in the availability and provision of public health care, goods and services;

� Develops recommendations for stakeholders including members of international bodies, the state governments, and public health professionals including a draft general comment of the meaning of ICERD Article 5(e)iv.


Overview

� Discrimination and race under international law

� The right to health under international law

� Model of interpretation for the right to health under ICERD


Defining Discrimination

� Discrimination/Non-discrimination entered common international parlance after WWII

� The non-discrimination clause exists in the UN Charter, UDHR and other subsequent human rights treaties

� “without distinction as to race, sex, language, or religion…”


Defining Race & Racism

� Race is not defined in the UN Charter, the Universal Declaration of Human Rights (UDHR) or the International Convention on the Elimination of all forms of Racial Discrimination (ICERD) but is most likely based on the definition used by the German National–Socialists before and during WWII

� The scientific community rejects race as a biological phenomenon but accepts it as a sociological construct

� Racism is based on the perpetuation of this ‘social myth’and can consist of beliefs, attitudes, differential treatment in the pejorative sense, as well as institutionalized policies and practices which discriminate on the basis of ‘race.’


Racial Discrimination under ICERD

� The International Convention on the Elimination of all forms of Racial Discrimination (ICERD) was the first binding human rights treaty to follow the UDHR

� “…any distinction, exclusion, restriction or preference based on race, colour, descent, or national or ethnic origin which has the purpose or effect of nullifying or impairing the recognition, enjoyment, or exercise, on an equal footing, of human rights and fundamental freedoms in the political, economic, cultural or any other field of public life.”

Source: International Convention on the Elimination of all forms of Racial Discrimination, Article 1.1


ICERD and the right to health

� Of special relevance to this research is ICERD 5(e)iv

� ICERD Article 5(e)iv states, “…States Parties undertake to prohibit and to eliminate racial discrimination in all its forms and to guarantee the right of everyone, without distinction as to race, colour, or national or ethnic origin, to equality before the law, notably in the enjoyment of the following rights…(e) economic, social and cultural rights, in particular…(iv) the right to public health, medical care, social security and social services.”


(Non)-Understandings of ICERD Article 5(e)iv

� Committee on the Elimination of all forms of Racial Discrimination has not issued any statement or General Comments on the meaning of the right to health under ICERD

� SR on Race has only mentioned the impact of racial discrimination on health once in his reports (in regards to a case of environmental dumping in a neighborhood occupied predominantly by African Americans)


Continuum of interpretation of ICERD

The customary international law approach asserts that the UDHR has attained the position of customary international law and that UDHR Art. 25 may be used for the interpretation of obligations under ICERD, such as Art. 5(e)iv.

The Short-changed approachasserts that ICERD guarantees rights, such as the right to health itself, and States parties obligations should therefore be interpreted on this basis.

CERD General Comment XX asserts that ICERD guarantees freedom from discrimination in the enjoyment of rights guaranteed elsewhere, such as the ICCPR and ICESCR. The approach of General Comment XX leaves a legal gap in international law for those States who have ratified CERD but who have not ratified one or both of the Covenants.

The obligation of choiceapproach asserts that States only have an to guarantee freedom from discrimination only when they have ratified both ICERD and one or both of the Covenants (ICESCR and ICCPR).

So if ICERD doesnSo if ICERD doesn’’ t say t say anything else about the anything else about the

right to health, what does right to health, what does it mean?it mean?


The right to health

� “Health is a state of complete physical, mental and social well-being and not merely the absence of disease or infirmity. The enjoyment of the attainment of the highest attainable standard of health is one of the fundamental right of every human without distinction of race, religion, political belief, economic or social condition”

� “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”

Source: (1) Constitution of the World Health Organization, Preamble(2) Universal Declaration of Human Rights, Article 25


Article 12, ICESCR

“…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. 2. The steps to be taken by the States Parties to the present Covenant to achieve the full realization of this right shall include those necessary for:

(a) The provision for the reduction of the stillbirth-rate and of infant mortality and for the healthy development of the child; (b) The improvement of all aspects of environmental and industrial hygiene; (c) The prevention, treatment and control of epidemic, endemic, occupational and other diseases; (d) The creation of conditions which would assure to all medical service and medical attention in the event of sickness…”

Source: International Covenant on Economic, Social and Cultural Rights, Article 12


Understandings of the right to health

� CESCR has issued several General Comments relevant to the right to health– Core minimum obligation of primary health care is an

obligation of immediate effect– Non-discrimination is an obligation of immediate

effect– Obligations to respect, protect, fulfill– General Comment 14 on right to health specifically

includes information on the normative content, obligations, violations and implementation at the national level of the right

� Special Rapporteur on Health focuses his work on issues of stigma and discrimination


Application of the Synergistic Approach of interpretation for the right to health under

ICERD

TravauxPrèparatoiresProvides for statutory interpretation as does the treaty textCERD Conventionwhich is explained further by CERD CommitteeGeneral CommentsSpecial Rapporteur on raceDurban Declaration

ICESCRincludes

Article 12which is explained further by

CESCRGeneral Comment 14

Special Rapporteur on HealthMDGs

CERDArticle5(e)iv

UN Charter

UDHR

Race under Int’l HR law Health under Int’l HR law

Resulting in specific understandings of Article 5(e)iv:Normative contentState Obligations

ViolationsImplementation


Potential Obligations under the Synergistic Approach

� Normative content� Definition-the right to health care and the underlying social

determinants of health (i.e. food, sanitation, potable water, clean environment)

� Availability, Accessibility, Acceptability and Quality (AAAQ) health care facilities, goods, services and programs

� State obligations� Respect, Protect, Fulfill especially with regards to direct racial

discrimination� Obligation of non-discrimination as an obligation of immediate

effect� Core obligations are non-derogable


� Violations of ICERD 5(e)iv� Violations of RPF such as direct denial of access to

heath care facilities, failure to regulate/protect consumers, failure to reduce inequities in the distribution of health care facilities, goods, services

� Implementation� Development of framework legislation, indicators and

benchmarks and mechanism for remedies and accountability

Potential Obligations under the Synergistic Approach


Conclusions and Future Directions

� Examination of racial health inequalities in the US for use as a proxy measure for racial discrimination

� Application of the synergistic model to test the efficacy of the model in surmising state compliance with ICERD obligations

� Comparative analysis of the US and EU examining legal statues and health systems approaches to addressing inequalities in the right to health

Your comments and Your comments and feedback are most feedback are most

appreciated. appreciated.

Thank you!

Documents

Interpreting the right to health under the International ... · Declaration of Human Rights (UDHR) or the International Convention on the Elimination of all forms ... the ICCPR and