Monitoring and Litigation Key to Enforcing International Health Rights, Melish Says
Although virtually all major human rights laws and treaties recognize the right to health, governments around the globe struggle to fulfill that right and human rights factions have had trouble enforcing it, said visiting professor and human rights attorney Tara Melish at a Law School event Nov. 29. Melish is developing strategies and mechanisms to hold governments accountable for health rights through monitoring and litigation.
Health rights fall under the social, economic, and cultural umbrella of human rights, but historically have been ignored by human rights organizations because of inadequate enforcement mechanisms. The right to health has certain freedoms and entitlements, such as the right to control one's own body and health, Melish said. "Those freedoms are an important aspect in which we need to be focusing our lens, our human rights lens, on what is happening on the ground to real people in real-life circumstances.
"There hasn't been a great deal of work on the right to health from a human rights perspective," Melish continued. She pointed to the way health rights were conceptualized in the U.N. Universal Declaration of Human Rights in 1948. The intention of the treaty was to establish an international "bill of rights" that would include the right to health, but before the treaty was ratified, the Cold War commenced and a division developed between civil and political rights, and social, economic, and cultural rights.
Human rights groups found it easier to enforce civil and political rights; violations are clear because those rights are "safe" as long as the government does not interfere with them, Melish explained. Social, economic, and cultural rights require resources from the government and violations to those rights are not as clear-cut.
According to human rights doctrine, governments are obliged to protect, respect, and fulfill social, economic, and cultural rights or they may be liable. In order to protect those rights, governments must prevent violations, which are typically third-party violations. In a case Melish has worked on, for example, indigenous territories were compromised when Ecuador's government granted authority to an oil company to drill for oil. The company blocked a river that provided the only means of transportation for an indigenous community to gain access to medical care. The government did not fulfill its obligations and was liable for health rights violations, she said.
Governments must also respond to violations through investigations, imposing sanctions, and providing compensation to the victims, Melish said.
Human rights organizations evaluate governments on the availability, accessibility, affordability, and quality of facilities, goods, and services. Statistical indicators, such as the infant mortality rate or the number of hospitals available, reveal the government's progress. "The benefit of this sort of process is the ability to engage the government in what is happening on the ground by monitoring the actual situation and looking and seeing where we can enter to change policy to make sure that we're moving forward with regard to the right to health on all different levels," Melish said.
The collected data is broken down according to factors such as gender or race because it is important to distinguish whether the progress is happening across the board or just in certain areas. "We can see that a state is progressing overall, but with regard to rural indigenous children for example, it's going down and there we'll want to be able to step in and respond."
Although governments are required to report this information, they don't disaggregate it. "Often they merely congratulate themselves for certain progress that has been achieved in small areas. We in civil society need to come back and say wait, wait, wait-this report doesn't actually reflect the right to health in our particular country at this moment," she said, "Civil society groups can prepare what we call 'shadow reports,' which â¦are prepared by civil society based on their own monitoring standards. And, in many cases it's an adequate assessment of the indicators already put together by governments."
Collecting data and verifying progress is important for gaining a sense of where violations are occurring, Melish explained. But "through litigation we want to focus on those areas where there are clear violations of government obligations that have caused concrete harm to particular individuals, and those individuals go before the courts and make a claim before the courts regarding their particular circumstances."
Monitoring health rights and then taking action through litigation to hold violators accountable is key to making positive changes. "We want to be encouraging states to be developing indicators, to disaggregate them, to set benchmarks, and to work on a political level in addressing where there's progress, where there are setbacks, and changing policy accordingly."
Melish's talk was sponsored by the J.B. Moore Society of International Law, the Human Rights Program, and the Sadie Lewis Webb Program in Law and Biomedicine.