asia-pacific journal on human rights and the law 17 (2016) 257-277 brill.com/aphu
Article ∵
Searching for the Elusive? Examining the Right to Health’s Status in the Pacific
Jennifer Y Kallie School of Public Health, Faculty of Medicine and Biomedical Sciences, The University of Queensland [email protected]
Claire E Brolan School of Public Health, Faculty of Medicine and Biomedical Sciences, The University of Queensland; Dalla Lana School of Public Health, University of Toronto [email protected]
Nicola C Richards School of Public Health, Faculty of Medicine and Biomedical Sciences, The University of Queensland
Abstract
Integrating the right to health is pivotal in progressing health and development in the Pacific. The Sustainable Development Goal (sdg) agenda provides an opportunity for this, given the relationship between health, human rights, climate change and sustain- able development. The right to health’s content can be utilised to progress country obligations in various ways: through facilitating implementation of Universal Health
* CEB acknowledges this research was part of Work Package 2 (wp2) of the Go4Health Project. Funding for Go4Health from the European Union’s 7th Framework Programme (HEALTH- F1-2012-305240) and the Australian Government’s NH&MRC European Union Collaborative Research Grants (1055138).
© koninklijke brill nv, leiden, 2016 | doi 10.1163/15718158-01702007
Coverage, supporting the development of health metrics, and assisting in equitable health policies. Cumulatively, such measures can act as process and outcome indica- tors of a state’s progressive realisation toward achieving the right to health. In analysing the status of the law and policy relating to the right to health, this study has established a right to health baseline for the Pacific region at sdg commencement, contributing both to monitoring and evaluation, and promoting visibility of this often overlooked region. Methods included a systematic review of the literature on the right to health, and review of six structural rights indicators in existing law and policy relating to the right to health in the 16 Pacific Island Forum countries and territories, 14 of which are recognised as small island developing states. Findings confirm the right to health’s marginalisation in the region. The ratification of United Nations (un) treaties, integra- tion of international human rights obligations into domestic law and policy, and com- pliance with reporting requirements were found to be piecemeal and ad hoc at best. We argue that while legal recognition is only one step in the process of realising the right to health, the existence of right to health law and policy is a pivotal start if there is to be equitable implementation of the sdg health agenda. We also recommend Pacific nations develop one reporting framework, which can double to meet their reporting requirements under un treaty bodies and sdg 3 global health commitments.
Keywords right to health (rth) – Pacific Island Forum countries – Sustainable Development Goal agenda – rth scorecard – status of rth in the Pacific
1 Introduction
In 2009, the Secretary-General of the Pacific Island Forum (pif) Secretariat ac- knowledged integrating the right to health is pivotal in progressing the region’s health and development:
All rights are fundamental to human development; the right to health is just as critical as the right to freedom of speech; and the right to livelihood is inexorably linked to freedom of movement. These are the essential un- derpinnings of the right to development. Without support for all human rights, I do not believe we can have real prospect for communities and for Forum Member States to achieve [the] sustainable development goals.1
1 Tuiloma Neroni Slade, ‘Ratification of International Human Rights Treaties: Added Value for the Pacific Region’ (Office of the United Nations High Commissioner for Human Rights
asia-pacific journal on human rights and the law 17 (2016) 257-277
There is crucial need for the post-2015 Sustainable Development Goal (sdg) agenda to advance health and development in the Pacific, especially given the relationship between health, human rights, climate change and sustainable development.2 Indeed, heads of government of the 16-member pif actively shaped formulation of the post-2015 sdgs,3 unsurprising as this region is al- ready highly affected by climate change.4 In 2014 Pacific leaders voiced this concern at the un Climate Summit and at the un International Conference on Small Island Developing States (sids). In adopting the post-2015 sdgs at the un General Assembly in September 2015, the world’s governments implic- itly acknowledged the need to redress the Pacific’s unique health and devel- opment challenges.5 For example, in the post-2015 global health goal, sdg 3 (“Ensure healthy lives and promote well-being for all, at all ages”), which contains 9 Targets and 4 Means of Implementation, Means of Implementa- tion 3c draws specific focus onto the world’s sids (that includes numerous Pacific Island nations) in terms of achieving a “substantial” increase in “health financing and the recruitment, development, training and retention of health workforces”.6 Certainly challenges around human resources for health and
(ohchr) – Regional Office for the Pacific, Suva, Republic of the Fiji Islands qnd Pacific Islands Forum Secretariat (pifs), Suva, Republic if the Fiji Islands, 2009)
2 Background
2.1 Health in the Pacific Australia, New Zealand, and the 14 Pacific Island countries (pics) – Polynesia (Cook Islands, Niue, Samoa, Tonga, Tuvalu), Melanesia (Fiji, Papua New Guinea, Solomon Islands, Vanuatu), and Micronesia (Federated States of Mi- cronesia, Kiribati, Marshall Islands, Nauru, Palau) – comprising the pif, are in one of the world’s most natural-disaster prone regions (Figure 18). Many pif communities are vulnerable to the impacts of climate change,9 which
7 Lyn N Henderson and Jim Tulloch, ‘Incentives for retaining and motivating health workers in Pacific and Asian countries’ (2008) 6(18) Human Resources for Health; Azmat Gani, ‘Health care financing and health outcomes in Pacific Island countries’ (2009) 24 Health Policy and Planning; ‘who Country Cooperation Strategy for the South Pacific 2006–2011’ (World Health Organization, 2010)
asia-pacific journal on human rights and the law 17 (2016) 257-277
140ºE 160ºE 180º 160ºW 140ºW 20ºN
Marshall Islands Federated States 10ºN of Micronesia Palau MICRONESIA
Nauru 0º Kiribati PNG POLYNESIA Solomon Tuvalu Islands 10ºS Samoa Fiji MELANESIA Vanuatu Cook Niue Islands 20ºS Australia Tonga
30ºS
New Zealand 40ºS Figure 1 Map of Forum Island Countries threaten health security.10 Multiple additional factors exacerbate regional poverty: distance from (and inability to compete in) global markets, small do- mestic markets, limited resources, vulnerability to global economic changes, limited infrastructure and work opportunities, and dependence on fuel im- ports. Political instability (notably in lower and middle-income pics)11 and heavy reliance on aid compound the precarious economic landscape.12
Change and Energy Efficiency, 2011)
asia-pacific journal on human rights and the law 17 (2016) 257-277
While pics have achieved progress on numerous health indicators, many struggle to provide basic healthcare.13 In several pics, sexually transmitted infections are on the rise as is multi-drug resistant tuberculosis, cholera and malaria.14 Non-communicable disease is the leading cause of death in eight pics.15 Other factors impacting health include gender inequalities and violence against women and children, while rapid urbanisation is resulting in densely packed squatter settlements on several islands, aggravating poverty, poor sani- tation and communicable disease.16 Also, health inequities experienced by Indigenous Australians and New Zealand’s Maori and Pasifika peoples cannot
13 ‘Pacific Island Overview’ (The World Bank, 2014)
asia-pacific journal on human rights and the law 17 (2016) 257-277
3 The Right to Health and Why it Matters
The right of everyone to enjoy the highest attainable standard of physical and mental health (right to health) was introduced in the World Health Organiza- tion’s Constitution’s preamble, and thereafter in the Universal Declaration of Human Rights 1948. Its articulation in Article 12 of the International Covenant on Economic, Social, and Cultural Rights 1966 (cescr) ensured the right to health amounts to a binding legal provision in countries that have ratified the cescr and other formative un documents that also specify this right. These include: Convention on the Elimination of All Forms of Racial Discrimination 1965 (cerd), Convention on the Elimination of All Forms of Discrimination against Women 1979 (cedaw), Convention on the Rights of the Child 1989 (crc), and Convention on the Rights of Persons with Disabilities 2006 (crpd). All countries have ratified one or more binding treaties that include the right to health.18 In 2000, in releasing its General Comment No. 14, the un Committee on Eco- nomic, Social, and Cultural Rights acknowledged the right to health (Article 12 cescr) meant access to timely and appropriate health care, as well as access to the underlying determinants of health (Figure 219). The Committee clarified
17 Ian Anderson and others, ‘Indigenous health in Australia, New Zealand, and the Pacific’ (2006) 367(9524) The Lancet 1775; Margaret Jolly, ‘Engendering Violence in Papua New Guinea: Persons, Power and Perilous Transformations’ in Margaret Jolly, C Stewart and C Brewer (eds), Engendering Violence in Papua New Guinea (anu Press 2012); John Reid and others, ‘Towards a Social-Structural Model for Understanding Current Disparities in Maori Health and Well-Being’ (2014) 19(6) Journal of Loss and Trauma 514; Peter Cramp- ton and Bridget Robson, ‘Ongoing leadership and effort needed to keep the focus on improving Maori health’ (2014) 127(1393) New Zealand Medical Journal; Jules Morgan, ‘Indigenous Australians and the struggle for health equality’ (2015) 3(3) The Lancet Respiratory Medicine 188; Chris McCall, ‘Doctors silenced over Australia’s immigration centres’ (2015) 386(10007) The Lancet 1932; Kalinda Griffiths and others, ‘How colonisa- tion determines social justice and Indigenous health – a review of the literature’ (2016) 33(9) Journal of Population Research 1. 18 Gunilla Backman and others, ‘Health Systems And The Right To Health: An Assessment Of 194 Countries’ (2008) 372(9655) The Lancet 2047. 19 ‘The right to health factsheet’ (World Health Organization, 2015)
asia-pacific journal on human rights and the law 17 (2016) 257-277
“The right to health”
Underlying determinants Health-care Water, sanitation, food, nutrition, housing, helthy occupational and environmental conditions, education, information, etc.
AAAQ Availability, Accessibility, Acceptability, Quality
Figure 2 The right to health (General comment 14) the meaning of state party ‘core obligations’ (defining minimum levels of es- sential health care), and outlined how governments could ‘progressively real- ize’ this right for all citizens, especially those most vulnerable. Significantly, as part of a country’s ‘core obligations’, the Committee was unequivocal that this right’s achievement depended on shared responsibility among developed and developing states and other actors for implementation. Since 2000, the right to health has gained traction on the global stage, il- lustrated by right to health litigation,20 appointment of a un Special Rappor- teur, and in 2013, by the unprecedented number of references to this right by health ministers attending the World Health Assembly. In addition to grow- ing calls for the introduction of a Framework Convention on Global Health underscored by the right to health,21 global health commentators have called for a new imagining of global health founded on ‘a shared commitment to realisation of health as a human right based on recognition of our common
20 Benjamin Mason Meier and Alicia Ely Yamin, ‘Right To Health Litigation And hiv/aids Policy’ (2011) 39 The Journal of Law, Medicine & Ethics 81. 21 Lawrence O Gostin and Eric A Friedman, ‘Towards a Framework Convention on Global Health: a transformative agenda for global health justice’ (2013) 13 Yale Journal of Health Policy, Law, and Ethics 1; Gorik Ooms and others, ‘Great expectations for the World Health Organization: A Framework Convention on Global Health to achieve universal health coverage’ (2014) 128(2) Public Health 173; Eric A Friedman, ‘An independent review and accountability mechanism for the Sustainable Development Goals: The possibilities of a Framework Convention on Global Health’ (2016) 8(1) Health and Human Rights 129.
asia-pacific journal on human rights and the law 17 (2016) 257-277
22 Julio Frenk, Octavio Gómez-Dantés and Suerie Moon, ‘From Sovereignty To Solidarity: A Renewed Concept Of Global Health For An Era Of Complex Interdependence’ (2014) 383(9911) The Lancet 94. 23 Lawrence O Gostin, ‘A framework convention on global health: Health for all, justice for all’ (2012) 307(19) jama 2087; Gorik Ooms and others, ‘Universal Health Coverage Anchored In The Right To Health’ (2013) 91(1) Bulletin of the World Health Organization 1. 24 ‘Right of everyone to enjoy the highest attainable standard of physical and mental health’ (United Nations 58th session of the General Assembly, 2003). 25 Sofia Gruskin and Laura Ferguson, ‘Using Indicators To Determine The Contribution Of Human Rights To Public Health Efforts’ (2009) 87(9) Bulletin of the World Health Organi- zation 645.
asia-pacific journal on human rights and the law 17 (2016) 257-277
Universal Declaration of Human Rights
International Bill of Human Rights
CESCR CERD CEDAW CRC CRPD 1966 1965 1979 1989 2006
CP CP CP CP BC AC
Reports Reports Reports Reports Reports Individual ECOSOC Individual complaints complaints & under art 14 Enquiries
Committee Committee Committee Committee Committee on Economic on the on the on the on Social and Elimination Elimination of Rights of Disability Cultural of Racial Discrimination the Child Rights Discrimination against Women Figure 3 Core human rights treaties with a focus on the right to health Modified from factsheet number 30 (ohchr, 2002)
4 Methods
At sdg onset, this timely study seeks to establish a right to health baseline in the pif’s 16-member countries via two means: systematic review of the litera- ture and by reviewing laws and policy on the right to health – the ‘structural indicators’ (Figure 326) – to develop a Pacific Right to Health Scorecard. Here we acknowledge Backman et al.’s 2008 large-scale study (that included some pics) assessing the extent countries’ health systems included right to health
26 ‘The United Nations Human Rights Treaty System: An introduction to the core human rights treaties and the treaty bodies’ (ohchr, 2005)
asia-pacific journal on human rights and the law 17 (2016) 257-277
1. State party Submits its report
2. Treaty body 6. Procedures to presents State follow up on party with list of implementation of issues and treaty body questions based on recommendations concerns reised by Opportunity for input Opportunity for input the report from system, from system, s & s s & s
5. Treaty body issues its 3. State party may concluding submit written observations on replies to list of the report, issues and including questions recommendations 4. Constructive dialogue between Committee and The cycle begins one to two State party Key: years after entry into force of the delegation during treaty (two years for , : National Human session and ) and repeats Opportunity for input Rights Institution from system, according to the following s & s : Non-Govemment periodicity: every two years for Organisation , every four years for and and every five years for and Figure 4 The reporting cycle for human rights treaties Source: Modified from factsheet 30 (2005) features.27 However, Backman and colleagues did not investigate whether the countries of focus were meeting their right to health reporting obliga- tions to the un committees (established to monitor the treaties in question (Figures 428), nor elaborate on their Pacific findings. Thus unlike Backman et al., this study examines pic treaty ratification more closely.
4.1 Literature Review The right to health was examined in each of the study’s 16 countries. Six multi-disciplinary databases were utilised (PubMed, Web of Science, Scopus,
27 Gunilla Backman and others, ‘Health Systems And The Right To Health: An Assessment Of 194 Countries’ (2008) 372(9655) The Lancet 2047. 28 ohchr (n 26).
asia-pacific journal on human rights and the law 17 (2016) 257-277
Westlaw International, Lexis, agis). Search terms included ‘human right to health’, ‘right to health’, ‘health rights and/or right’ in combination with each of the 16 countries, and with ‘Pacific’ and ‘Association of South-East Asian Coun- tries’ (or asean) to facilitate a wider search strategy. An additional grey litera- ture search was conducted utilising websites from key regional multilateral and bilateral agencies. The included literature was subject to thematic analysis.29 The review was undertaken in 2013 following prisma guidelines (Figure 530).
4.2 Compiling a Right to Health Scorecard Six (incremental) methods of inquiry (amounting to Scorecard indicators) were employed to meet this study’s second objective. We investigated whether:
1. pif countries ratified the five international treaties containing a right to health provision; adoption of Additional Treaty Protocols was noted. 2. pif countries provided an initial report to the relevant un treaty oversee- ing committee; whether reports for this and subsequent reporting cycles were lodged in a timely manner (less than 12 months). 3. pif un-reports reported on country measures to respect, protect and ful- fil the right to health. 4. pif country Constitution’s incorporated the right to health. 5. pif country National Health Plans included right to health language/ obligations. 6. pif countries had a national human rights institute.
Documents obtained from the ohchr online treaty depository, the paclii law database, Google and Google Scholar searches facilitated our investiga- tion. Findings were assembled into a Pacific Right to Health Scorecard, allow- ing a right to health ranking for each country (Table 1). The maximum score was 18 points with points allocated according to research team criteria. Inquiry iii was subject to a content analysis, which included search terms ‘health’, ‘right to health’, ‘health rights’ and ‘rights’. Where a country had ratified the cescr, an additional search was made for ‘Article 12 (cescr)’ and ‘General Comment 14’. Word frequency for the search terms was recorded (and points allotted). For Inquiry iv, a word frequency count for ‘right to health’ or ‘health rights’ was applied to pic constitutions (and points allotted). A similar process was applied to Inquiry v.
29 Virginia Braun and Victoria Clarke, ‘Using Thematic Analysis in Psychology’ (2006) 3(2) Qualitative Research in Psychology 77. 30 ‘Preferred Reporting Items for Systematic Reviews and Meta-Analyses’ (prisma)
asia-pacific journal on human rights and the law 17 (2016) 257-277
Records identified from PubMed Records identified from Additional records identified Scopus and Web of Life Westlaw International, Lexis through other sources and databases and databases added manually n = 145 n = 130 n =9 Screening
Records removed because Records excluded based on tiltes of duplication and abstracts (n = 81 + 54 = 135) n = 8 + 17 = 25
Records retained for full text review Eligibility n = 56 + 59 = 115
Full-text articles excluded with reasons n = 27 + 28 = 55
Included Records remaining after quality analysis n = 29 + 31 = 60
Studies included in qualitative synthesis n = 60 + 9 = 69 (–3) = 66
Figure 5 Flow chart describing selection of records for a systematic review (identification, screening, eligibility and included records) Adapted from prisma
5 Findings
5.1 Literature Review We were unable to identify an alternate literature review on the right to health in the Pacific. Most of the 66 eligible documents subjected to in-depth analysis (publication dates spanning 1997 to 2013) related to right to health literature in the context of Australia and New Zealand (58 and 22 per cent respectively), the Pacific (17 per cent), and asean (5 per cent). A noteworthy finding was asia-pacific journal on human rights and the law 17 (2016) 257-277
implicit State constitutions State with rth provision rth explicit 2 rth No provision No 2 0
Frequency ofFrequency right health language to reports in State 2 language language used No rth language rth Maximum possible score: 18 Maximum possible score: ) scorecard 2 0 1 rth tmd ) Delay tmd < 24 months 3 Total mean Total ( delay > 60 months tmd 24 – 60 months 0 1 Timeliness Reports Initial report(s) missing Not Not missing 1 1 1 1 7 2 1 Mar ( Health method for a Right to k allocation cedaw crc crpd Additional protocols Table 1 Treaty Ratification cescr cerd
asia-pacific journal on human rights and the law 17 (2016) 257-277
5.2 Pacific Right to Health Scorecard Key scorecard findings are presented in Table 2, and summarised in Figure 7. The mean score for the Pacific was only 6.4 out of 18: all Micronesian coun- tries scored below this. New Zealand and Australia were top-ranked. However, their respective scores demonstrate a lack of deep engagement with the right to health. Word frequency of ‘right to health’ and ‘health rights’ accounted for less than 0.5 per cent of total hits (0.1 and 0.4 per cent respectively) in state reports (Figure 8). The right to health was signalled only nine times and by four
Emerging disease 1.5 Cost of Health care 1.5 Tobacco legislation 1.5 Community Empowerment 1.5 Education 1.5 Development 3 and Drug availability 3 Workforce 4.5 Climate change 4.5 Asylum Seekers 6 Sexual & Reproductive Health 12 International treaties/Constitutions/Legislation 17 People with disability 20 Indigenous people 23 0510 15 20 25 Figure 6 Percentage of papers in key themes from a 2014 literature review using right to health-related search terms for Pacific Forum countries
asia-pacific journal on human rights and the law 17 (2016) 257-277
asia-pacific journal on human rights and the law 17 (2016) 257-277
asia-pacific journal on human rights and the law 17 (2016) 257-277
18 maximum score Donor country 16 Micronesia 14 Melanesia 12 Polynesia 10
SCORE 8 Mean 6 4 2 0 Fiji Niue Nauru Palau Tonga Kiribati Samoa Tuvalu Australia Vanuatu New Zealand Cook Islands Solomon Islands Marshall Islands Papua New Guinea
Federated States of Micronesia
Figure 7 Right to Health scores for Forum countries
5000 63% 4500 State reports 4000 3500 3000 35% 2500
Total hits 2000 1500 1000 500 0.1% 0.4% 2% 0% 0% 0 Health Right to Health Equity Rights General General health Rights article 12 comment 14 Search terms Figure 8 Total numbers of hits for key search terms – State reports for the most recently completed reporting cycles
countries (New Zealand, Fiji, the Solomon Islands, Cook Islands). Health rights were signalled only three times and by two countries (New Zealand and Fiji). Of the six pif countries that have ratified the cescr, the cornerstone treaty for the right to health, only New Zealand’s report refers to Article 12 cescr. Four countries (Australia, New Zealand, Papua New Guinea, Cook Islands) have ratified all five treaties. The crc is the only treaty universally ratified by
asia-pacific journal on human rights and the law 17 (2016) 257-277
6 Discussion and Conclusion
Findings from the scorecard matrix triangulate literature review findings: the right to health is at the fringes of scholarly, political and legal engagement in this region. This study highlights that Pacific country’s ratification of un trea- ties, and such government’s obligation under the Vienna Convention on the Law of Treaties to translate international human rights obligations into do- mestic law and policy, is piecemeal and ad hoc at best. While it has been as- serted that the right to health’s content is now sufficiently well-understood to be applied in an operational, systematic, and sustained manner,31 our findings indicate this is not the case for the Pacific. For example, these findings contrast markedly to the Latin American region where a constitutional study on the right to health occurred in 1989.32 We also concur that pics have a low-level of engagement with internation- al human rights treaties,33 illustrated through poor compliance with treaty reporting commitments. Qualitative investigation is recommended; is this because international laws are not perceived to have a place in Pacific cul- ture?, We query whether the magnitude of compiling treaty-reports presents too great a hurdle for Pacific government’s limited technical and institutional capacity. Alternatively, perhaps an appropriate human rights measuring and
31 Paul Hunt and Gunilla Backman, ‘Health Systems And The Right To The Highest Attainable Standard Of Health’ (2008) 10(1) Health and Human Rights 81. 32 H Fuenzalida-Puelma H and S Connor S (eds), The Right to Health in the Americas. A Comparative Constitutional Study (Pan American Health Organisation, 1989). 33 Natalie Baird, ‘To ratify or not to ratify? An assessment of the case for ratification of international human rights treaties in the Pacific’ (2011) 12 Melb J Int Law 1.
asia-pacific journal on human rights and the law 17 (2016) 257-277
34 M Amin and others, ‘EquiFrame: A framework for analysis of the inclusion of human rights and vulnerable groups in health policies’ (2011) 13(2) Health Human Rights 1. 35 ‘Right of everyone to enjoy the highest attainable standard of physical and mental health’ (United Nations 58th session of the General Assembly, 2003).
asia-pacific journal on human rights and the law 17 (2016) 257-277
Yet we argue the Pacific’s major economic and development partner, the Australian government, is unhelpful in advancing the human right to health in its explicit form (beyond its minimal baseline status) in the Pacific region. Here, we give two reasons, which are inter-related. First, the Australian govern- ment is pursuing the development policy of ‘health as a regional public good’ in the Pacific, opposed to promoting health and development as a matter of human rights.36 It follows that further investigation between the intersection (if there is one) of health as a regional public good and the human right to health in the Pacific context – and its potential ramification for sdg 3 achieve- ment – is required. Given the impetus on disease elimination under the ‘health as a regional public good’ policy, overlap with the right to health’s holistic el- emental content as set out in General Comment No. 14 is unlikely. Second, Australia’s aversion to expressly integrate health and human rights into its regional development policy is unsurprising because unlike most West- ern liberal democracies, it is a nation without a federal Human Rights Act or Bill of Rights. Therefore, it is hardly likely the Australian Government would draw focus to the elements of the human right to health in its development policy and planning initiatives when it side-steps or disassociates the same with respect to the framing of its health policies and planning for its own Aus- tralian peoples. Finally, while ‘Legal recognition is just one of the first steps on a long and difficult journey to realising the right to health’,37 it is a pivotal start if there is to be equitable implementation of the sdg health agenda for the Pacific’s heterogeneous and often overlooked peoples.
36 ‘Health for Development Strategy 2015–2020’ (Australian Government, Department of Foreign Affairs and Trade, June 2015)
asia-pacific journal on human rights and the law 17 (2016) 257-277