Human Rights in a Downward Spiral?

By Veronika Flegar, University of Groningen, v.l.b.flegar@rug.nl

With the high number of asylum seekers arriving in Europe, states increasingly struggle to simultaneously accommodate the interests of their citizens and abide by their human rights obligations. Particularly in light of the increasing fear of terrorism in Europe tensions may arise between security concerns and human rights. I suggest that anyone interested in human rights should think about these developments as the current number of people requesting asylum in Europe is not only a test case for the integration capacity of Germany or for the functioning of the European Union, but also for the perseverance and strength of human rights. The goal of this post is not to provide a legal analysis of the issue but rather to raise awareness for the role of human rights in this context.

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Get involved in GHLG: ‘Vulnerability and Migration in International Human Rights Law’

Do you want to find out more about human rights in the context of migration? Are you interested in learning about social scientific research methods and qualitative content analysis programmes and their application in the legal field? Join the project ‘Vulnerability and Migration in International Human Rights Law’ as a research assistant or thesis student!

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Inter-American Human Rights Treaty on the Rights of Older People Defines a Broad Scale of (New) Health Rights: Precedent for a UN Treaty?

Marlies Hesselman, University of Groningen

On 15 June 2015, the member states of the Organization of American States (OAS) approved the Inter-American Convention on Protecting the Human Rights of Older Persons during the General Assembly of the institution. The resolution was not supported by Canada or the USA, but immediately attracted signatures from 5 members of the OAS (Brazil, Uruguay, Chile, Costa Rica and Argentina). The instrument needs two ratifications before it enters into force.

The document can already be taken as a landmark document, however, recognizing for the first time specifically the vulnerability of older persons and their specific rights. According to a press release of the OAS and the new Convention itself, ‘the purpose of the Convention – the first regional instrument of its kind in the world -, is to promote, protect and ensure the recognition and the full enjoyment and exercise, on an equal basis, of all human rights and fundamental freedoms of older persons, in order to contribute to their full inclusion, integration and participation in society. The starting point of the Convention is the recognition that all existing human rights and fundamental freedoms apply to older people, and that they should fully enjoy them on an equal basis with other segments of the population.”

One of the questions that this new regional convention raises is whether it supports and “strengthens the case for a new international UN convention on the rights of older people” as well. We very much like to invite you for a discussion on this question! Is it opportune to recognize a right to healthy and active ageing for the elderly internationally as well, or in a European document? Are these rights currently sufficiently protected? Please share your thoughts in the comment box.

To illustrate the scope of rights to health recognized in the Convention, the convention seems to underscore a range of rights not normally explicitly included in treaties, such as acces to ‘palliative care’, or the concept of ‘active and healthy ageing’. The Convention inter alia includes the following definitions and provisions on the right to health:

Art. 2 (definitions:)

“Palliative care”: Active, comprehensive, and interdisciplinary care and treatment of patients whose illness is not responding to curative treatment or who are suffering avoidable pain, in order to improve their quality of life until the last day of their lives. Central to palliative care is control of pain, of other symptoms, and of the social, psychological, and spiritual problems of the older person. It includes the patient, their environment, and their family. It affirms life and considers death a normal process, neither hastening nor delaying it.
[…]

“Multiple discrimination”: Any distinction, exclusion, or restriction toward an older person, based on two or more discrimination factors.

“Age discrimination in old age”: Any distinction, exclusion, or restriction based on age, the purpose or effect of which is to annul or restrict recognition, enjoyment, or exercise, on an equal basis, of human rights and fundamental freedoms in the political, cultural, economic, social, or any other sphere of public and private life.

“Active and healthy ageing”:  The process of optimizing opportunities for physical, mental, and social well-being, participation in social, economic, cultural, spiritual, and civic affairs, and protection, security, and care in order to extend healthy life expectancy and quality of life for all people as they age, as well as to allow them to remain active contributors to their families, peers, communities, and nations. It applies both to individuals and to population groups.

“Integrated social and health care services”: Institutional benefits and entitlements to address the health care and social needs of older persons with a view to guaranteeing their dignity and well-being and to promoting their independence and autonomy.

[…]

Article 11

Right to give free and informed consent on health matters

Older persons have the inalienable right to express their free and informed consent on health matters. Denial of that right constitutes a form of violation of the human rights of older persons.
[read rest of article and specific obligations here: OAS Human Rights Treaty on Older People -2015]

Article 12

Rights of older persons receiving long-term care

Older persons have the right to a comprehensive system of care that protects and promotes their health, provides social services coverage, food and nutrition security, water, clothing, and housing, and promotes the ability of older persons to stay in their own home and maintain their independence and autonomy, should they so decide.

[read rest of article and specific obligations here: OAS Human Rights Treaty on Older People -2015]

The Right to Health itself has also been comprehensively defined in article 19 of the new Convention, reading in full:

Article 19

Right to health

Older persons have the right to physical and mental health without discrimination of any kind.

States Parties shall design and implement comprehensive-care oriented intersectoral public health policies that include health promotion, prevention and care of disease at all stages, and rehabilitation and palliative care for older persons, in order to promote enjoyment of the highest level of physical, mental and social well-being.  To give effect to this right, States Parties undertake to:

a. Ensure preferential care and universal, equitable and timely access to quality, comprehensive, primary care-based social and health care services, and take advantage of traditional, alternative, and complementary medicine, in accordance with domestic laws and with practices and customs.

b. Formulate, implement, strengthen, and assess public policies, plans, and strategies to foster active and healthy ageing.

c. Foster public policies on the sexual and reproductive health of older persons.

d. Encourage, where appropriate, international cooperation in the design of public policies, plans, strategies and legislation, and in the exchange of capacities and resources for implementing health programs for older persons and their process of ageing.

e. Strengthen prevention measures through health authorities and disease prevention, including courses on health education, knowledge of pathologies, and the informed opinion of the older person in the treatment of chronic illnesses and other health problems.

f. Ensure access to affordable and quality health care benefits and services for older persons with non-communicable and communicable diseases, including sexually transmitted diseases.

g. Strengthen implementation of public policies to improve nutrition in older persons.

h. Promote the development of specialized integrated social and health care services for older persons with diseases that generate dependency, including chronic degenerative diseases, dementia, and Alzheimer’s disease.

i. Strengthen the capacities of health, social, and integrated social and health care workers, as well as those of other actors, to provide care to older persons based on the principles set forth in this Convention.

j. Promote and strengthen research and academic training for specialized health professionals in geriatrics, gerontology, and palliative care.

k. Formulate, adapt, and implement, in accordance with domestic law, policies on training in and the use of traditional, alternative, and complementary medicine in connection with comprehensive care for older persons.

l. Promote the necessary measures to ensure that palliative care services are available and accessible for older persons, as well as to support their families.

m. Ensure that medicines recognized as essential by the World Health Organization, including controlled medicines needed for palliative care, are available and accessible for older persons.

n. Ensure access for older persons to the information contained in their personal records, whether physical or digital.

o.Promote and gradually ensure, in accordance with their capabilities, coaching and training for persons who provide care to older persons, including family members, in order to ensure their health and well-being.

Article 24

Right to housing

Older persons have the right to decent and adequate housing and to live in safe, healthy, and accessible environments that can be adapted to their preferences and needs.

States Parties shall adopt appropriate measures to promote the full enjoyment of this right and facilitate access for older persons to integrated social and health care services and to home care services that enable them to reside in their own home, should they wish.

[read rest of article and specific obligations here: OAS Human Rights Treaty on Older People -2015]

Article 25

Right to a healthy environment

Older persons have the right to live in a healthy environment with access to basic public services.

[read rest of article and specific obligations here: OAS Human Rights Treaty on Older People -2015]

Again, we are looking forward to hearing your opinions on this new and unique Convention! How can we strenghtent the opportunities for active and healthy ageing in both developed and developing countries? What can European countries take away from this Convention?
Sources:
https://www.opensocietyfoundations.org/voices/human-rights-treaty-finally-recognizes-right-palliative-care

http://www.rightsofolderpeople.org/inter-american-convention-on-protecting-the-human-rights-of-older-persons/
http://www.theguardian.com/global-development/poverty-matters/2013/jul/31/ageism-human-rights-older-people
http://social.un.org/ageing-working-group/index.shtml

One of the multi-discplinary focus areas at the University of Groningen and the UMCG is ‘healthy ageing’. For more information about the research in this field at the RuG, see here: http://www.rug.nl/research/healthy-ageing/programme-healty-ageing?lang=en

The Right to Health and the Reception of Asylum Seekers in Germany

Veronika Flegar, University of Groningen

Due to the consistently high inflow of asylum seekers, tensions are rising in several European countries. Germany is especially challenged to provide basic reception rights in accordance with international human rights standards. For this year, up to 800 000 asylum seekers are expected in Germany. Germany therefore continues to be the top of the list of the European Union (EU) countries receiving the largest amount of asylum seekers. The federal states and municipalities are struggling to provide sufficient accommodation to asylum seekers during the asylum procedure. Recently, states such as Saxony even resorted to using tents for accommodating the arriving asylum seekers. According to German newspaper Der Spiegel, the situation in these refugee camps is catastrophic and basic rights are not guaranteed. This is also the case with regard to the right to health: medical supplies are insufficient and hygienic conditions are bad, which is why diseases such as scabies and diarrhea could spread.

While the EU lays down basic standards of reception in the Reception Conditions Directive, this is not only a question of EU law. Rather, from an international human rights law perspective, it is necessary to ask what the relevant standard is and should be. The right to health is laid down in Article 12 of the International Covenant on Economic, Social and Cultural Rights (ICESCR) as the highest attainable standard to physical and mental health. The non-binding but authoritative General Comment 14 of the Committee on Economic, Social and Cultural Rights (CESCR) further defines what should be included in this right. As such, General Comment 14 explicates that the right to health is an ‘inclusive right’, which includes far more than only emergency or acute care and also covers the ‘underlying determinants of health’ (such as, for instance, adequate sanitation) (paragraph 11). Moreover, ‘States are under the obligation to respect the right to health’ of asylum seekers and should therefore grant them full access ‘to preventive, curative and palliative health services’ (paragraph 34). As such, the right to health does not allow for any type of discrimination and ‘health facilities, goods and services must be accessible to all, especially the most vulnerable or marginalized sections of the population, in law and in fact, without discrimination on any of the prohibited grounds’ (paragraph 12). In addition to these substantive provisions on the right to health, Article 2(1) ICESCR clarifies the related state obligations. Accordingly, Germany needs to work actively on the progressive and full realization of the ICESCR for all persons residing on German territory.

This not only shows that insufficient medical care or bad hygienic conditions in refugee camps are not in accordance with international human rights law, but also that the German Asylum Seekers Benefit Act (Asylbewerberleistungsgesetz) in more general terms is not in line with the right to health under the ICESCR. According to Article 4 of this Act, asylum seekers are only entitled to the care necessary ‘for the treatment of acute illness or pain’. The CESCR has already referred to this precarious situation in its last Concluding Observations on Germany in 2011. Accordingly, the CESCR urged Germany ‘to ensure, in line with international standards, that asylum-seekers enjoy equal treatment in access to non-contributory social security schemes, health care and the labour market’ (paragraph 13). It seems like little has happened since these Concluding Observations and the situation is only deteriorating rather than improving.

If Germany wants to abide by its international human rights obligations in the future, it is not enough to let high numbers of asylum seekers enter German territory while at the same time not fully recognizing their right to health. Germany needs to urgently reform its reception system for asylum seekers as the pressure on the system through newly arriving asylum seekers is only increasing.

Recent changes in the Spanish health care system from a right to health perspective – PhD research by María Dalli

By María Dalli (PhD researcher at the Human Rights Institute of the University of Valencia, Spain; currently visiting scholar at the University of Groningen)

In 2012, Spain adopted significant legislative changes with regard to the universal right to health care. Due to these changes, the universal right to health care is currently at risk. In order to allow for a better understanding of the relevance of these measures, I will briefly outline the evolution of the Spanish National Healthcare System (NHS) as well as the recent changes. Subsequently, I will explain the main objectives of my research and the extent to which it can contribute to offering an adequate answer to these problems from a right to health perspective.

The healthcare system in Spain evolved from the Bismarck model (the social security model)  of the 20th century to the Beveridge model. The Beveridge model is characterized by universal access and redistribution through a funding mechanism and was initiated through the passing of the General Healthcare Law of 1986 (HGL, 14/1986, 25th April). Subsequent laws (Law 16/2003 and Law 4/2000) regulate the rights of non-nationals. According to these laws, foreigners without legal residence status were also covered by the NHS after they had registered at the municipality. During the last decades, the Spanish healthcare system has thus been universal, financed through a progressive tax system and, as such, separate from the socials ecurity system. However, the recent measures introduce significant changes with regard to the groups that had originally been protected by the system. Consequently, the universal right to health care is under pressure.

Presently, Royal Decree 16/2012, states ‘insured’ and ‘beneficiaries’ as categories entitled to access the NHS. A person can be considered as insured if she/he is registered in the social security system (through being employed, retired or unemployed in search of employment). A beneficiary is a family member of the insured or is dependent on the insured. Such a categorization means that the access to the NHS is tied to the social security system despite the fact that the health care system is tax-funded. This is especially concerning as it means that every person living on Spanish territory is contributing to the tax system and thus to the funding of the NHS, while still not necessarily having access to the health care services of the NHS.

However, an important exception is made for persons whose annual income is below 100.000 €: they still count as insured. This exception does not apply to undocumented migrants or EU citizens not registered at the Official Register of Foreign Citizens. As a consequence, undocumented migrants and unregistered European citizens do not have regular access to the NHS as they are usually not registered in the social security system and are explicitly excluded from the possibility to count as insured on the basis of earning less than 100.000 € per year. However, there are three exceptions to the denial of access to the NHS for undocumented migrants and unregistered EU citizens: 1) emergency care, 2) health care to children under the age of 18 and 3) pre- and post-natal care.

According to the Ministry of Healthcare, more than 676.000 people have been excluded from the NHS in Spain in the last three years. Fortunately, the Royal Decree 16/2012 has been challenged by political parties and different Autonomous Communities. For this reason, Spain is currently waiting for the verdict of the Constitutional Court, which is responsible for guaranteeing the fulfilment of the fundamental rights and the Spanish Constitution.

In my thesis I explain these current changes within the Spanish NHS. In the following, I will explain the main questions that I try to answer in my research project.

From a legal philosophical, constitutional law and international law perspective, I try to provide possible solutions to the recent challenges in the Spanish health care system. From a right to health prespective, I analyse the universality of this right in relation to material equality and in relation to the organization of the health care systems on the basis of such characteristics. The thesis is supervised by Professor of Legal Philosophy María José Añón (University of Valencia), and co-supervised by Professor of Constitutional Law Gerardo Pisarello (University of Barcelona).

The research highlights the importance of the universality and equality of the human right to health. With regard to the universality, I therefore analyse the three main arguments that are alleged against universality and defend a position that takes into account the theory of basic needs. The classic models of organization of the healthcare, within the typical Welfare states, usually pay attention to poverty, work or citizenship. Hence, the aim of my research is to show that the subject of the right to health is not the poor, the worker, or the citizen (national or legal resident) but rather the human being as such. In terms of substantial equality, I focus on the theory of the indivisibility and interdependence of all human rights so as to defend the influence of the socioeconomic factors in health – especially in light of the concept of the ‘social determinants of health’ mentioned in General Comment 14 of the United Nations Committee on Economic, Social and Cultural Rights (health thus relates to issues such as the influence of food, housing, security etc.).

The main question of my thesis is thus the following: how can the human right to health be designed in accordance with the principles of universality and substantive equality?

Understanding the right to health from this point of view leads to the following subquestions:

  • What are the limits of the universality of the right to health under the international human rights framework (for instance, the concept of affordability versus ‘charity’)?
  • How can we design a healthcare system according to the characteristics of universality and equality in light of the previous contributions of the classic models of health systems (Beveridge and Bismarck)?
  • What does this mean for the recent changes in the universal health care coverage of the National Healthcare System in Spain?

All of this will hopefully provide an adequate answer to the recent changes in Spain from a right to health perspective which can show that such regressive measures are in breach of the concept of progressivity and of the prohibition of regressivity.