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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Private Sector Involvement in Healthcare and UHC: An Assessment in Light of the Right to the Highest Attainable Standard of Health

New publication by Brigit Toebes and Antenor Hallo de Wolf

The goal of UHC (Universal Health Coverage) is to ‘ensure that all people obtain the health services they need without suffering financial hardship when paying for them’. There are many dense connections between the goal of UHC, and the State’s legal obligation to realize the human right to the highest attainable standard of health (‘right to health’). In light of this goal, it is important to assess private sector involvement in the health sector. For example, private actors may not always have the incentives to deal with externalities that affect availability, accessibility, acceptability, and quality of health care related services; they may not be in the position to provide ‘public goods’; or they may be subjected to imperfect information. The main question that this paper sets out to answer is: what are the legal human rights obligations imposed on States to regulate private sector involvement in healthcare?

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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.