The challenges set by an ambitious interpretation of the right to health Because it relies on a comprehensive but precise range of indicators and standards,

the interpretation of the right to health by the European Committee represents a unique and ambitious development in human rights law. Nevertheless, it is fundamental to assess how the European Committee’s interpretation affects the substance of the right to health and whether it clarifies it adequately. I will do so by challenging: (3.4.1.1) the adequacy of its thematic indicators; and (3.4.1.2) that of its legal standards.

3.4.1.1 The indicators used by the European Committee

Assessing the realisation of ESCR against indicators raises several issues as outlined by Green.⁴¹⁸ This subsection does not intend to address the breadth of such issues.

Instead, it will explore the questions specifically raised by the thematic health indicators used in the reporting procedure of the European Committee on Article 11 ESC, in order to assess their appropriateness.

First, are indicators restricted to quantitative data? I have demonstrated in subsection 3.3.1.1 that the European Committee developed indicators embracing both quantitative and qualitative data, which enabled a comprehensive understanding of what realising the right to health meant. For instance, the indicator ‘measures to combat smoking and alcoholism’ requires both qualitative data (such as legislative framework) and quantitative data (such as consumption trends). Therefore, indicators are not restricted to quantitative data in that instance.

Second, are indicators designed to measure states’ compliance with their obligations, or to measure individuals’ effective enjoyment of their right? In the context of Article 11, most indicators measure the accessibility and availability of health services. This clearly evaluates both states’ compliance with their obligations to realise the right to health, and individuals’ enjoyment of this right. For instance, the European Committee uses the indicator ‘environmental pollution’ to hold states

418 Maria Green, ‘What We Talk About When We Talk About Indicators: Current Approaches to Human Rights Measurement’ (2001) 23 Human Rights Quarterly 1062.

responsible for breaching their obligation to prevent environmental pollution under Article 11(3);⁴¹⁹ and to find a violation of individuals’ right to a healthy environment.⁴²⁰ However, certain indicators used to assess the general state of health of the population seem to only measure states’ compliance with their Article 11 obligations. The connection between one’s enjoyment of her or his right to health and indicators such as ‘life expectancy’, ‘main causes of death’, or ‘infant and maternal mortality rates’, for instance, is far from obvious. This does not mean that such indicators are pointless. On the contrary, they allow for gross malfunctions of a health system to be identified. However, these indicators focus on duty-bearers and since Article 11 recognises a human right to protection of health, it is important to define who the right-holders are. The reporting procedure primarily aims at monitoring states’ compliance with the Charter and does not offer any remedies.

Therefore, it does not represent the most adequate forum to recognise victims of Article 11 violations (in contrast to the complaint procedure). Health indicators, nonetheless, also embrace right-holders: i.e. the population as a whole and several vulnerable groups recognised through the reporting procedure. It is thus crucial that the European Committee widens its understanding of vulnerability, as recommended in subsection 3.3.1.1, in order to measure individuals’ effective enjoyment of their right to health more adequately.

Third, where should the boundary be drawn between human rights indicators and general development indicators? This question is closely related to the issue discussed above, that is, do indicators measure the enjoyment of a human right? I have demonstrated that the indicators used by the European Committee to review the accessibility and availability of health services, are not solely restricted to measuring states’ compliance with Article 11. They also measure individuals’ enjoyment of their right to health, which is reflected by the possibility for the standards developed under these indicators to be used in the complaint procedure. For instance, in Marangopoulos Foundation for Human Rights (MFHR) v. Greece, the European Committee used the standards developed under the indicator ‘environmental

419 ECSR, ‘Conclusions XIX-2 (2009)’, Greece; ECSR, ‘Conclusions 2009’, Cyprus, Georgia, Moldova.

420 Marangopoulos Foundation for Human Rights v Greece (n 372) [195 and 203].

pollution’ to find a violation of individuals’ right to a healthy environment.⁴²¹ This highlights that indicators reviewing the availability and accessibility of health services are clearly human rights indicators. Certain indicators, nevertheless, cannot directly measure individuals’ enjoyment of the right to health, as they focus on the general state of health of the population (e.g. life expectancy and main causes of death). As a result, they have never been used to assert a breach of Article 11 in the complaint procedure and resemble at first glance general development indicators.

That said, these ambiguous indicators can indirectly measure the individual dimension of the right to health when used in parallel with other indicators. For instance, the standards on ‘public information and awareness-raising’ and on ‘health education’ oblige states to design health promotion campaigns according to what has been identified under the indicator ‘main causes of death of the population’. Such indicators are therefore necessary for a comprehensive review of the right to health by the European Committee, including both its individual and its collective dimension.

Finally, how many indicators are necessary to define adequately the content of a right and thus, to measure appropriately its implementation in the context of Article 11? On one hand, the high number of current indicators (i.e. 18 up to 2009) could be criticised for inflating the legal content of the right to health in theory, and for committing states to submit a considerable amount of data in practice. When discussing the obligation to submit data, I demonstrated that the indicators developed under Article 11 enabled a comprehensive understanding of what the right to health meant, and an in-depth evaluation of how it was realised. Whilst it is true that most violations of Article 11 are due to a failure to submit data, these indicators do not necessarily require states to produce new data. In fact, the European Committee frequently uses data emanating from European agencies, to whom states have already had to submit this information. On the other hand, these same indicators could also be criticised for failing to embrace fundamental issues such as ethnicity, socio-economic status, and elderly persons’ health. These issues sometimes appear in the findings of the European Committee but they should be reviewed systematically, in order to ensure a uniform monitoring of such essential aspects of Article 11.

421 ibid.

To conclude, albeit thematic health indicators can be criticised, they have enabled the development of a more comprehensive and transparent interpretation of the right to health than that developed by the UN Committee. The use of indicators is also especially relevant to monitoring the obligation to progressively realise the right to health, as they facilitate a follow-up of states’ performance. Finally, it is worth nothing that indicators are recommended by various international human rights institutions: e.g. the UN Committee on Economic, Social and Cultural Rights;⁴²² and the UN Special Rapporteur on the right to health.⁴²³ The recommendations formulated in that respect correspond relatively well to the practice of the European Committee. For instance, the Special Rapporteur specifies that indicators must be connected to established norms, must be disaggregated, and must evaluate national strategies as well as access to information, which the Article 11 indicators do.

Therefore, indicators contribute to fulfilling the principles suggested by my thesis, i.e. SNHRBs’ interpretation should (1) protect an effective enjoyment of the right to health; (2) set reasonable expectations upon states; (3) be sensitive to the context in which this right is implemented; (4) apply principled consistency (and be fit to supranational monitoring). However, certain improvements remain to be seen:

according to these guidelines, no indicator evaluates the participation of the population or the existence of accountability mechanisms in healthcare.⁴²⁴

3.4.1.2 The standards developed by the European Committee

The right to health is explicitly recognised in Article 11 ESC, which has been translated by the European Committee into various legal standards through its reporting and complaint procedures. However, it is also enshrined (more implicitly) in other provisions of the Charter. The coherence of how these standards interact with one another should therefore be discussed, as this can affect the principled consistency of its interpretation and thus, the substance of the right to health.

First, the legal force of the standards that have been developed by the European Committee under Article 11 is not homogeneous. Certain standards have been given

422 UNCESCR, ‘GC14’ (n 21), paras 57 and 58.

423 Special Rapporteur on the right to health, 'Annual Report 2006' (n 227), para 49.

424 ibid.

more importance than others under this provision. This can be identified either in the preciseness of their formulation, or in the strictness of their monitoring, as these differ considerably. As a result, such differences can either facilitate or impede findings of non-conformity. For instance, the legal standards developed under Article 11 (1), on curative health, seem more precise and have led to more findings of non-conformity than those developed under Article 11 (2), on preventive health. This

‘differentiation’ is particularly relevant to the standards developed under the indicator ‘infant and maternal mortality’. The European Committee declares that conformity to these standards is ‘decisive’ in its overall finding of compliance regarding the implementation of Article 11,⁴²⁵ which it does not assert for any other standards. Moreover, high maternal and infant mortality rates are the most common reason why the European Committee finds states in breach of Article 11 (whether basing its findings on states’ performance, or data submission, see Figure 6). The emphasis put on complying with these standards seems to reflect the adoption of a minimum core obligations approach by the European Committee. This chapter does not pretend to address the complex issues raised by a minimum core approach (these will be examined in more depth in chapter 5). Instead, it recommends caution. It is legitimate that the European Committee considers minimum levels of healthcare as being a priority in the realisation of the right to health. It is nevertheless extremely difficult to determine what services are essential and must subsequently be prioritised in healthcare. The European Committee alone does not have the expertise to carry this task, and maternal healthcare does certainly not represent the only service that should be considered as such. Finally, whilst it is important to prioritise certain aspects of Article 11, it is crucial to not under-recognise others (such as health promotion), as they define, too, the legal content of the right to health.

Second, the legal force of the provisions that protect the right to health in the Charter is not homogeneous either. As mentioned in subsection 3.1, Article 11 is not the only provision that embraces the right to health. Articles 3 and 7 deal with occupational health. Articles 13 and 19 provide for medical assistance to persons without adequate resources and to migrant workers. Finally, Articles 23 and 30 recognise the right to

425 Such requirement was first established in ECSR, ‘Conclusions XV-2 (2001)’, Belgium p 94.

healthcare for elderly persons and persons socially excluded or poor.⁴²⁶ These provisions all contribute towards delineating the legal content of the right to health but their scattering throughout the ESC risks blurring the normative scope of this right. Moreover, the interpretation of these provisions by the European Committee does not benefit from the same preciseness when compared to Article 11 (except, possibly, Article 3 and 7).⁴²⁷ Articles 23 and 30 were created in 1996 with the Revised Charter, thus leaving less time for an established jurisprudence to be developed than under Article 11, enshrined in the 1961 Charter.⁴²⁸ As for Articles 13 and 19, they are part of the 1961 Charter but do not benefit from standards as clear as those found under Article 11. Due to their controversial nature (health protection to non-nationals), these provisions are not as widely ratified as Article 11,⁴²⁹ and the European Committee may therefore be unable and unwilling to set regional standards. As a result, the content and protection of the right to health may appear unbalanced, according to what aspects of health, or whose health are at stake.

The uneven legal force of the standards defining the right to health in the ESC partially reflects the European Committee’s attempt to strictly monitor certain aspects of the right to health, and to leave a wider margin of appreciation for others.

However, the reasons behind such approach are unclear, and the approach itself seems unjustifiable since certain aspects of health are unregulated as a result (e.g.

older persons’ health). Therefore, such interpretation threatens the coherence given to the substance of the right to health and its implementation, going against the principle of principled consistency advocated by this thesis.