The issues arising from a defective evaluation of the right to health

While the interpretation of the right to health by the European Committee is unique and ambitious, the manner through which it monitors this right presents various shortcomings. It is nonetheless important to assess these shortcomings, as they may affect how the European Committee interprets the legal content of Article 11 ESC,

426 ESC 1961 (n 92), Art 3, 7, 13 and 19; ESC 1996 (n 92), Art 3, 7, 13, 19, 23 and 30.

427 ESC Secretariat, 'The right to health and the ESC' (n 323).

428 ESC 1961 (n 92), Art 11; ESC 1996 (n 92), Art 11, 23 and 30.

429 CoE, ‘Signatures and Ratifications of the ESC and Its Protocols’ (n 100).

(3.4.2.1) whether through its monitoring procedures, (3.4.2.2) or through the findings of non-conformity held under that provision.

3.4.2.1 The monitoring procedures on Article 11 ESC

The monitoring procedures of the European Committee regarding Article 11 are not fully adequate for several reasons, which affect how the right to health is interpreted.

First, albeit the same health indicators are systematically used for every state and in every reporting cycle, the European Committee does not always evaluate them with the same tools. Considering the commonality of issues these tools attempt to assess, there is no apparent or justifiable reason why they should not be applied to all states.

For instance, the European Committee consistently reviews states’ performance against the indicator ‘healthcare professionals and facilities’ in its Conclusions, but does not always verify that these figures are fairly distributed between rural and urban areas.⁴³⁰ The danger of ‘medical deserts’ in rural areas, however, is a common issue. As a result, the implementation of Article 11 is not entirely monitored on the same grounds for each State party to the Charter. Whilst the right to health should be interpreted in a manner that sets reasonable expectations of review upon SNHRBs, such practice threatens the coherence of its normative scope and the procedural certainty of its review. The European Committee should, thus, not only evaluate states’ performance with the same health indicators, it should also use the same

‘tools’ when these enable the identification of common violations of Article 11.

Second, both the reporting and the complaint procedures focus on the collective dimension of the right to health, but fail to translate what entitlements it grants to each individual. The indicators developed in the reporting procedure measure the implementation of Article 11 among the population as a whole and among certain vulnerable groups (children, women, persons living in rural areas, and, sometimes, Roma). By contrast, the collective complaint procedure enables the European Committee to review alleged violations of the right to health against any group of individuals (vulnerable or not). Nevertheless, the complaints can only be brought by

430 E.g. in ECSR, ‘Conclusions 2005’, France pp. 230–231; or in ECSR, ‘Conclusions 2009’, Bulgaria p 161.

a restricted number of NGOs, not by the victims themselves,⁴³¹ and must concern

‘general’ situations.⁴³² By establishing limited monitoring procedures, the ESC deprives the right to health from its individual scope and prevents its content from recognising adequately all right-holders. Therefore, any potential attempt from the European Committee to develop an interpretation that protects an effective enjoyment of individuals’ right to health is limited.

3.4.2.2 The findings of non-conformity under Article 11 ESC

While the monitoring procedures on Article 11 present a few shortcomings, the findings of non-conformity that emerge from them weaken the legal content of the right to health on one hand, and strengthen it on the other.

First, the European Committee rarely reaches findings of non-conformity to Article 11, and even less so on the basis of states’ direct failure to comply with their express obligations. Instead, most violations of Article 11 are based on a failure to fulfil the implied obligations to submit data (a requirement mainly procedural); or, sometimes, on a failure to perform comparably with European averages (a controversial requirement). Out of the 870 findings reached by the European Committee in its Conclusions on Article 11,⁴³³ 79 correspond to a violation, and only 37 of these 79 violations are due to inadequate performances in the field of healthcare. This represents only 4.2% of the total number of findings. The rarity of these findings of non-conformity seems to point at the reluctance of the European Committee to hold states in breach of the right to health in its reporting procedure. Moreover, its tendency to hide behind violations of implied obligations instead of holding violations of express obligations shows an unwillingness to engage more firmly with the legal standards developed under Article 11. However, out of the seven Merits Decisions involving Article 11 (to date), all correspond to a violation of the right to health, and all are based on states’ direct failure to fulfil their express obligations.

431 Additional Protocol ESC 1995 (n 98), Art 1(b).

432 CoE, ‘European Social Charter Collected Texts 6th Edition' (2008)

<http://www.coe.int/t/dghl/monitoring/socialcharter/Presentation/ESCCollectedTexts_en.pdf

> [accessed 8 September 2015], see Explanatory report to the 1995 Protocol, para 31.

433 Calculated according to each decision based on states’ compliance with each of their three express obligations, in each reporting cycle (from 1969 to 2013).

The standards drawn from Article 11 have thus been given more legal force through the complaint procedure. Nevertheless, it should be noted that the European Committee seems less and less reluctant to reach findings of non-conformity to Article 11 through the reporting procedure. Whilst it held, respectively, 4, 2, 8, and 5 violations of Article 11 during the 2001, 2003, 2005 and 2007 reporting cycles, it found 30 violations in 2009, and 29 in 2013. Such developments reflect a positive trend but also show that the interpretation of the European Committee must protect more explicitly an effective enjoyment of the right to health through both procedures.

Second, the findings of non-conformity based on states’ failure to perform comparably with the European average in healthcare, seem to reflect the adoption of two approaches: the progressive realisation and the minimum core approaches. Such assertion can be deduced from two observations mentioned in subsection 3.3.2 on European averages. The European Committee holds states responsible for breaching Article 11 when their performances fall considerably below the European average, not when they simply fall short of it (which would disregard differences between states’ capabilities). This seems to reflect a minimum core obligation to realise the right to health: that to not perform significantly below the European average, regardless of the level of resources available to the state. This thesis challenges the notion of minimum core obligations as understood in Chapter 5. However, the application of this notion may be acceptable in the context of the European framework, where the level of resources and states’ proximity in other areas (including healthcare) allow for common core obligations to be set under Article 11.

Furthermore, the European Committee usually encourages states that perform below European averages but that demonstrate their efforts to improve the implementation of Article 11. This seems to reflect an obligation to progressively realise the right to health: that to constantly improve one’s performance, regardless of the European average. It is worth noting that these findings echo the human rights-based approach of the UN Committee on Economic, Social and Cultural Rights. Such compatibility between the European and the international protection of the right to health can therefore strengthen the legal content of this right. Moreover, the progressive and core approaches as (heuristically for the latter) applied by the European Committee, seem to facilitate an interpretation of the right to health that fulfils relatively well the

principles of interpretation advocated in this thesis. According to these, SNHRBs’

interpretation of the right to health should protect an effective enjoyment of the right, set realistic expectations upon states, be context-sensitive, and guarantee principled consistency.

Conclusion

In this Chapter, I examined how the European Committee interpreted the right to health and discussed whether this contributed to clarifying its legal content adequately, by studying its monitoring procedures on Article 11 ESC. Therefore, I analysed the comments formulated by the European Committee when monitoring the implementation of this right: in its reporting procedure, up to the 2013 cycle; and in its complaint procedures, up to April 2015. This research led to the conclusion that the European Committee delineates the legal content of the right to health with precision. In Section 3.1, I introduced the provisions relevant to health in the ESC, justified my choice to focus on Article 11 ESC, and described the procedures through which the latter is monitored; before outlining the methodology of my analysis in this regard. In Section 3.2, I contended that the European Committee recognised three express obligations in its jurisprudence on Article 11, clarifying the normative scope of the right to health. These concern the provision of curative health, health promotion, and preventive health. The use of a normative terminology as well as the repetition and reference to certain standards clearly point at the existence of legal standards under the right to health. Furthermore, the use of findings of non-conformity contributes to clarifying what thresholds must be reached for such standards to be considered violated. In Section 3.3, I then argued that the methodology used by the European Committee to monitor Article 11 ESC, stressed the recognition of implied obligations. Requests to submit specific data and violations held for failure to do so clearly highlight states’ obligation to not only report on the implementation of the right to health, but also to collect data in order to understand the health needs of their populations. Furthermore, the use of European averages, although illegitimate in theory, represents a heuristic tool enabling the European Committee to hold states in breach of Article 11 when they perform

comparably below the average. Finally, I used these findings to draw a critical overview of the European Committee’s interpretation in Section 3.4, using the principles of interpretation this thesis advocates. Firstly, I analysed the challenges and benefits of its ambitious interpretation, by discussing the use of thematic indicators and the (uneven) legal force of the various health standards developed under the ESC. Secondly, I pointed at the pitfalls of the monitoring procedures and the findings of non-conformity on Article 11, weakening the legal content of the right to health. However, due to its established jurisprudence and its unusual monitoring tools (i.e. health indicators and regional averages), the European Committee’s interpretation offers an unprecedented contribution to the clarification of the right to health through supranational monitoring.

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