ESRC Seminar ‘Theoretical Perspectives on Global Health and Human Rights’
19-20 April 2007, University of Liverpool
The Minimum Core, South African Socioeconomic
Rights Jurisprudence and the Right to Health:
Theoretical and Practical Implications
by
Dr. Lisa Forman
Post-Doctoral Fellow
Canadian Institutes of Health Research
Comparative Program on Health and Society
University of Toronto
Email: lisa.forman@utoronto.ca
1
Presentation
1)
Objections to the Right to Health
2)
International Human Rights Conceptualization
3)
South African Jurisprudence
4)
Implications for Theory and Practice
2
1. Objections to the Right to Health
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Right to health is not universal
Right to health is unrealistic
Rights would make zero-sum claim on limited
resources
Negative/positive distinction between civil and social
rights
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Negative rights require resources and inaction to be
realized
Positive rights require little resources and state inaction to
be realized
Legislatures not courts should decide positive rights
Objections found arguments that social rights are rather
political, aspirational or programmatic rights
3
Inaccuracy of the Positive/Negative Distinction
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Distinction has philosophical roots in Kant and
Berlin’s ideas about positive and negative duties and
liberties
Positive/negative contracted to mean action/inaction
& resource-intensive/resource-free
Contraction inaccurately reflects reality
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My right to free expression requires state non-interference
But ensuring non-interference requires active legal and
policy process
‘Negative’ rights therefore require action and
resources
4
All Rights Impose Costs and Multiple Duties
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All rights require vigorous state action and have
budgetary implications
Civil rights impose considerable costs (Holmes and
Sunstein, 2001, Hunt, 1996)
Henry Shue (1980): all rights impose three kinds of
duties: duties to avoid depriving, duties to protect
from deprivation, duties to aid the deprived
Idea enters international human rights interpretations
(Asbjorn Eide, 1987):
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duty to respect (not to obstruct)
positive duty to protect (ensure others don’t obstruct)
positive duty to fulfill (provide)
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Threat is of Persistent Bias
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Continuum from ostensibly negative (don’t obstruct) to
ostensibly positive (provide)
Paradigm may nonetheless suggest that civil rights tend
towards duties to respect; social rights towards duty to fulfill
However duties to respect may require resources as much as
duty to fulfill and realizing social rights may not require
providing commodities but preventing their deprivation
Designing institutions to protect subsistence need not be
more “positive,” unrealistic or unaffordable than designing
programs to control violent crime: “Neither looks simple,
cheap or “negative”” (Henry Shue, 1980)
6
Ideological Roots of Contestation
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Positive/negative distinction reflects liberal conception
of non-interventionist state protecting individual
freedom and private property
If civil rights and property protection require resources
and state action even night-watchman state is
interventionist and redistributive albeit favouring
private property not the poor
Ascendancy of liberalism poses challenges of
countering ideological resistance to right to health
Pragmatic and ideological objections may have
blurred for judges and politicians
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Presentation
1)
Objections to the Right to Health
2)
International Human Rights
Conceptualization
3)
South African Jurisprudence
4)
Implications for Theory and Practice
8
A Post-Ontological Era for the International Right to Health
International
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Constitution of the World Health
Organization (1946)
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Universal Declaration of Human Rights
(1948) article 25(1)
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Covenant on Economic Social and
Cultural Rights (1966) article 12
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Convention on the Rights of the Child
(1989) article 24(1)
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Convention on Elimination of Racial
Discrimination (1965) article 5(e)(iv)
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Convention on Elimination of
Discrimination against Women (1979)
articles 11(1)(f) and 12
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Convention on the Protection of the
Rights of Migrants Workers (2002) article
28
Regional
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European Social Charter (1961) article 11
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African Charter of Human and People’s
Rights (1981) article 16
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American Protocol of San Salvador
(1988) article 10
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Cairo Declaration on Human Rights in
Islam (1990) article 17
Ratification of Treaties with Health Rights
200
150
100 192 183 170
153
50
0
Economic and Social Rights Covenant
Racial Discrimination Covenant
Women's Covenant
Children's Covenant
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Source: UN OHCHR (2006)
Expert Interpretations of the Right to Health
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In Social Right’s Covenant, states recognizes everyone’s right to highest
attainable standard of physical and mental health (article 12)
However Covenant limits state duties to progressive realization to the
maximum of available resources (article 2.1)
Expert interpretations considerably advanced scope of entitlement and
duties under social rights and of right to health especially UNCESCR
General Comments 3 and 14
Progressive realization places immediate obligations on states and
requires effective movement towards full realization through duties to
respect, protect and fulfil
Social rights contain minimum essential levels
Social Rights Covenant indicates that rights can only be limited so far as
compatible with their nature” (article 4) and acts aimed at destroying its
rights were not permitted (article 5)
Idea of minimum core inherent to the basic value that human rights places
on human dignity, worth and life
10
UNCESCR General Comment 3 on State Obligations (1994)
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A state has minimum core obligations to ensure at the very
least minimum essential levels of each right including
essential primary health care
If any significant number of individuals were deprived of
essential primary health care, a state would be seen as prima
facie, failing to discharge its obligations under the Covenant
A government could only justify non-compliance with
minimum core obligations by demonstrating every effort to
use all resources available to satisfy these obligations as a
matter of priority
If the Covenant “were to be read in such a way as not to
establish such a minimum core obligation, it would be largely
deprived of its raison d'être”
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UNCESCR General Comment 14 on Right to Health (2000)
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Irrespective of development levels, right to health contains
essential elements such available, accessible, appropriate
and good quality health care facilities, goods and services
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Drawing from ICPD and Alma-Ata, core obligations include
at least :
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non-discriminatory access to health facilities, goods and services,
especially for vulnerable or marginalized
access to minimum essential food, basic shelter, housing and
sanitation, and water
essential drugs as defined by WHO
equitable distribution of all health facilities, goods and services
national public health strategy and plan of action addressing health
concerns of all
Committee argues core duties are non-derogable and noncompliance cannot be justified under any circumstances
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Implications of Core
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Core is rights-based approach to deprivation
If each person has inherent dignity and equal worth,
significant deprivation of basic needs should be viewed as
major human rights concern
Meeting basic needs must take temporal and resource priority
in realization of right to health
Government must show deprivation is due to incapacity, not
unwillingness
Core as protection against competing political and economic
priorities, inadequate resource allocations to health,
corruption and uncaring government
Core as a limit to unreasonable incursions into people’s basic
needs by political and commercial actors
Not unreasonable duties to place on poor countries
Apply to rich country action domestically and internationally
13
Content of the Core?
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General Comment 14 only indicates that core is
consistent with essential primary health care and
includes essential drugs
Core as guideposts for countries (Brigit Toebes,
1999)
Variable content but “core” idea maintains that social
rights cannot be limited to any extent
Reflects central idea that rights require governments
to prioritize meeting the “minimum decencies of
citizenship in the modern world” for the poor (Albie
Sachs, 1993)
14
Core Creates Normative Hierarchy
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Core advances normative hierarchy within right to
health
Idea has implications for balancing right to health
against governmental claims of scarcity or
competing private interests
Core also has implications for institutions causing
systemic restrictions of basic needs, eg WTO TRIPS
agreement
Core right to essential medicines suggests that
TRIPS restriction on medicines and limited
justification should alter how it is formulated,
implemented and interpreted in poor countries
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Presentation
1)
Objections to the Right to Health
2)
International Human Rights Conceptualization
3)
South African Jurisprudence
4)
Implications for Theory and Practice
16
South African Constitution Act 90 of 1996
Constitution includes enforceable socioeconomic rights to health care services, food,
water, social security, housing and education
 Transformative document with pervasive
commitment to open, accountable and
responsive democracy based on human
dignity, equality and freedom
 Constitutional entrenchment of state duties to
“respect, protect, promote and fulfil all rights”
(section 7.1)
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Section 27: Everyone’s Right to Access Health Care Services
(1a) Everyone has the right to have access to
health care services, including reproductive
health care
(2)
State must take reasonable legislative and
other measures, within its available resources,
to achieve progressive realisation
(3)
No one may be refused emergency medical
treatment
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Constitutional Certification Judgment (1996)
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Court rejected objections to constitutional
entrenchment of socioeconomic rights
All judicial review carries budgetary implications and
much makes social policy
Enforcing social and economic rights not so different
a task as to breach separation of powers.
Socioeconomic rights were “at least to some extent,
justiciable,” and at the very minimum could be
“negatively protected from improper invasion”
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Soobramoney v Minister of Health (1996)
Hospital’s denial of dialysis to very sick man
did not breach section 27
 Social rights depended on resources and an
unqualified obligation to meet even basic
needs could not be filled
 Given difficult decisions court would be “slow
to interfere with rational decisions taken in
good faith by the political organs and medical
authorities whose responsibility it was to deal
with such matters”
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20
Grootboom v Government of RSA (2000)
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Squatters evicted off government land without alternative shelter
Court rejected minimum core arguments of amici
Court noted UNESCR Committee not specified minimum core on housing
and argued that it lacked competence and information to determine
content
Reasonableness standard adopted as standard of compliance
Reasonableness determined case by case, in social and historical context
of poverty, and constitutional context of commitment to equality, dignity
and freedom
State’s negative duty not to prevent right of access to adequate housing
State’s positive duty to act reasonably to provide basic necessities of life
to those lacking
Positive duty not absolute or unqualified but assessed by standard of
reasonableness
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Elements of the Reasonableness Standard
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Primarily requires comprehensive plans dealing with
all needs
Unreasonable to exclude significant segment of
society
Focus must be on needs of poor dependent on state
for basic necessities
Focus on urgent and desperate needs:
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“If the measures, though statistically successful, fail to
respond to the needs of those most desperate, they may
not pass the test.” [44]
State can’t do more than resources permit but state
must give adequate budgetary support to social
rights and plan, budget and monitor to try meet all
needs
22
Implications of Grootboom…
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Case hailed as seminal internationally but
extensively criticized nationally for rejecting core
Reasonableness standard seen not as individual
entitlement but administrative review requiring
sensible priority (Sunstein, 2001, Bilchitz, 2002)
Potential for immediate or tangible benefit to poor
litigants seen as limited (Fitzpatrick and Slye, 2003)
Raised questions whether reasonableness
adequately substituted for the core, and whether it
relieved deprivation
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AIDS Policy Puts Reasonableness Standard to the Test
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Government resolutely refused and obstructed
antiretroviral (ARV) medicines in public sector
President Mbeki had adopted AIDS denialism:
disputes causal link between HIV and AIDS and
sees ARV as toxic and fatal
South Africa’s AIDS pandemic is one of largest in the
world
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5 600 000 people infected (13 percent of population)
365 000 people dying per year, over 1000 a day
Mass orphaning
80-90 000 children maternally infected each year
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Contestation of Mother to Child Transmission Policy
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Social protest over government delay and refusal
on drugs to prevent mother to child transmission
(MTCT)
Social groups sue arguing breach of section 27
Government defends approach given drug safety
and efficacy and program costs
Government strongly contests constitutionality of
judicial review of health policy or strong judicial
orders
Court’s willingness to enforce positive duties put to
test
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Minister of Health v Treatment Action Campaign (TAC) (2002)
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Court found government policy unreasonably denied lifesaving
drug to children born to mostly indigent mothers dependent on
state for health care
Court affirmed constitutional authority to review health policy and to
make mandatory and supervisory orders
Rejected right to minimum core without resource limits citing
institutional incapacity and democratic considerations
Suggestion that case dealt with negative not positive duty
Court declared government’s responsibility to devise and
implement a comprehensive MTCT program within available
resources
Ordered government to without delay: remove restrictions on drug;
make it available in public sector; provide for counsellor training;
take reasonable measures to extend testing and counselling
facilities throughout public sector
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Presentation
1)
Objections to the Right to Health
2)
International Human Rights Conceptualization
3)
South African Jurisprudence
4)
Implications for Theory and
Practice
27
Theoretical Implications of Reasonableness standard
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Reasonableness standard may not effectively guide
realization
No temporal priorities to guide progressive realization (Roux,
2002)
No definition of ‘urgency,’ ‘desperation;’ ‘poor and vulnerable’
(Liebenberg, 2002)
No substantive content read into section 27
Problematic if reasonableness permits limitless restrictions
But focus on basic health needs may approximate core
Court has disregarded resource implications in egregious
dignity impacts (TAC, Grootboom and Khosa)
Reasonableness therefore largely consistent with
international human rights law
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Practical Outcomes of Reasonableness Standard
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Grootboom changed policy frameworks on housing for those
in crisis
TAC fundamentally altered national treatment policy
National MTCT program is now in > 80% clinics
16 228 babies born to HIV+ mothers tested negative (82%)
(MoH, 2007)
National Treatment Program introduced
TAC secured a critical health service for poor and prioritized
health needs of poor against competing governmental
priorities
The right and enforcement conferred a powerful social claim
for stigmatized population
However significant differences in implementation suggest
need for attention to remedial orders and perhaps supervisory
jurisdiction
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Positive/Negative Characterizations
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Approach shows justiciability of social rights and
positive duties
Undermines many traditional objections
But cautious enforcement of positive duties reifies
ideological objections and sharp distinctions
Positive/negative does not necessarily equate to
action/inaction or resource-heavy/resource-light
It may obscure analytical approach to rights and
remedies
Need to shift to assessing rights from perspective of
what needs to be done rather than working within
unhelpful categorical straitjackets
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Conclusion
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South African right’s legal force contingent on judicial
willingness to enforce
Choices by judiciary are ideologically motivated by deeper
conceptions of the appropriate role of law and the state
Right to health must target legal cultures and legal education
that perpetuate paradigms on social rights
Litigation without social action has limited force
Rights assume power through social internalization as
individual entitlements and collective norms demanding
political priorities and legal protection
Combination of legal and social strategies through rights
discourse, advocacy, social mobilization and litigation may
enable right to health to address global health inequalities
and place reasonable limits on politics and economics in
service of the health interests of the poor
31