Chapter 4 Clarifying the normative scope of the right to health in supranational monitoring
4.2 The right to a health system responsive to its cultural environment (the scope of application)
4.2.2 A context sensitive approach to the right to health
While the scope of application of the right to health should not be restricted for cultural considerations, SNHRBs should incorporate such considerations (to a certain extent) in their procedures, for both normative and practical reasons.
Normative reasons respond to the legitimate concerns raised by cultural relativists, i.e. the need to accommodate cultural diversity, and that to respect states’
sovereignty for democracy purposes. Such reasons are reflected in two aspects of human rights law, making the context sensitive approach meet the requirement of principled consistency. First, the context-sensitive approach translates the margin of appreciation doctrine initially developed by the European Court of Human Rights, to ESCR.523 According to this doctrine, states are allowed a certain degree of flexibility on how they wish to implement human rights standards, in order for SNHRBs to respect the sovereignty principle and in practice, to gain further trust from states.
Second, the context sensitive approach reflects the acceptability requirement
521 UNCESCR, ‘GC14’ (n 21), paras 11, 16, 21, 34 and 44(d).
522 International Covenant on Civil and Political Rights 1966, Art 18(4); ECHR (n 335), Art 2.
523 See early works of Thomas A O’Donnell, ‘The Margin of Appreciation Doctrine:
Standards in the Jurisprudence of the European Court of Human Rights’ (1982) 4 Human Rights Quarterly 474; Howard Charles Yourow, ‘The Margin of Appreciation Doctrine in the Dynamics of European Human Rights Jurisprudence’ (1987) 3 Connecticut Journal of International Law 111.
developed by GC14.524 The latter requires that health facilities, goods and services are culturally appropriate, i.e. respectful of the culture of individuals, minorities, peoples and communities (and in line with medical ethics), while designed to improve their health.525
Practical reasons also justify the need for SNHRBs to take cultural considerations into account in their interpretation. Much research shows the importance of involving key actors in the realisation of the right to health, especially with regard to harmful traditional practices. Their assistance in the promotion of safer practices is essential to a successful implementation of right to health standards among the community. In the context of FGM for instance, statutory bans and criminalisation that are not accompanied by a comprehensive eradication strategy can be detrimental. In certain African countries, this has led to either an absence of enforcement or to underground practice.526 As a result, various authors argue that the influence of FGM practitioners should be used to inform communities about the dangers of such procedures,527 and to design efficient counter-practices symbolising entry into womanhood to replace FGM.528 Therefore, SNHRBs should adopt a context sensitive approach when interpreting the scope of application of the right to health, since it contributes to an effective enjoyment of the latter.
It is worth noting that this approach, also suggested by Tobin,529 focuses on the stage at which cultural considerations must be incorporated. Cultural beliefs can be taken into consideration during the design of measures aimed at implementing the highest standard of health attainable, but not when deciding what this standard should be.
Therefore, SNHRBs may ask states to design context-sensitive measures, but only if those contribute to improving their health systems, which adequacy must be assessed
524 UNCESCR, ‘GC14’ (n 21), para 12(c).
525 ibid.
526 Bonny Ibhawoh, ‘Between Culture and Constitution: Evaluating the Cultural Legitimacy of Human Rights in the African State’ (2000) 22 Human Rights Quarterly 838, 857–858.
527 Vanja Berggren and others, ‘An Explorative Study of Sudanese Midwives’ Motives, Perceptions and Experiences of Re-Infibulation after Birth’ (2004) 20 Midwifery 299.
528 Tobin (n 19) 314–324.
529 ibid 110–118; see also Wolff (n 134) 27.
by relevant experts in health and determined by human rights law, as argued in subsection 4.1. However, the distinction between normative content and implementation is not always self-evident: are such considerations set in the substance of the right or contextual to its application? While there is no clear-cut answer to this question, the following framework enables SNHRBs to optimise their interpretation by clarifying how such issues may be monitored in practice. It is based on the need for the context sensitive approach to be principled when applied to supranational monitoring (for coherence and fairness purposes),530 and it considers two situations.
Firstly, the realisation of the right to health can potentially conflict with the existence of a traditional practice. I will illustrate this through the example of obstetric and neonatal care, as many traditional practices involve the (intended) protection of pregnant women, mothers, and new-borns. In the first instance, medical research shows that traditional practice X has medical virtues and/or does not represent any risk for women’s or new-borns’ health (e.g. vertical crouching position in delivery in Peru).531 In this case, no conflict arises between the implementation of the highest standard of health attainable and traditional practice X. Therefore, practice X can presumably be respected, especially if it is not costly, and as long as it does not breach human rights law. It is worth noting that the absence of culturally appropriate healthcare, notably in the context of childbirth, can be detrimental as individuals may refuse to use institutional services and put their lives at risk.532 In the second instance, medical research shows that traditional practice Y represents a risk for the health of women or new-borns (e.g. tight swaddling of new-borns in Turkey).533 In this case, a conflict arises between the implementation of the highest standard of health attainable and traditional practice Y. Practice Y should, therefore, be eliminated. However, a dialogue with key actors in the community is essential. It
530 O’Donnell (n 523): similar criticism was formulated in the early days of the margin of appreciation in the European Court of Human Rights.
531 Gabrysch and others (n 202).
532 ibid.
533 Emine Geçkil, Türkan Şahin and Emel Ege, ‘Traditional Postpartum Practices of Women and Infants and the Factors Influencing Such Practices in South Eastern Turkey’ (2009) 25 Midwifery 62, 66 and 70.
enables the design of measures adapted to the environment in which they are to be implemented to increase their efficiency (e.g. health promotion campaigns explaining the dangers of tight-swaddling).
Secondly, the realisation of the right to health can automatically conflict with cultural or religious beliefs that are against a type of healthcare necessary to secure the highest standard of health attainable. In such instance, there should be little margin of appreciation. I will illustrate this through the example of abortion services, as SRH is a field encountering great cultural or religious oppositions. Research clearly highlights the importance of abortion services to achieve the highest standard of health attainable as they prevent the use of clandestine procedures, dangerous for women’s health.534 As a result, states must ensure the availability of such services, regardless of the fact they transgress religious values (e.g. legal ban in states where Catholicism is influent). A dialogue with key actors is essential to identify the measures such service should be accompanied by, in order to ensure its use in the community. In this case, it could include campaigns revealing the dangers of clandestine abortions, and discussions with religious leaders enabling them to understand that access to abortion does not increase promiscuity (although issues related to what some believe to be ‘foetus’ right to life’ remain unsolved).535
To conclude, SNHRBs should reject cultural relativist argument attempting to justify the right to the highest standard of health attainable, but their interpretation should be sensitive to the context in which this right ought to be implemented. However, it is worth examining whether the approach adopted in their monitoring procedures accommodates these suggestions.
534 WHO, ‘Unsafe Abortion: Global and Regional Estimates of the Incidence of Unsafe Abortion and Associated Mortality in 2008 (6th edition)’ (WHO 2011)
<http://www.who.int/reproductivehealth/publications/unsafe_abortion/9789241501118/en/>.
535 Nana Oye Lithur, ‘Destigmatising Abortion: Expanding Community Awareness of Abortion as a Reproductive Health Issue in Ghana’ (2004) 8 African Journal of Reproductive Health / La Revue Africaine de la Santé Reproductive 70.