Duties beyond borders

This essay deals with a foreign policy question of extraordinary importance: what responsibilities do states have to provide economic and technical assistance to other States that have high levels of need affecting the health and life of their citizens? The question is important for a variety of reasons. There exist massive inequalities in health globally, with the result that poorer countries shoulder a disproportionate burden of disease and premature death. Average life expectancy in Africa is nearly 30 years shorter than in the Americas or Europe.1 In one year alone, an estimated 14 million of the poorest people in the world died, while only an estimated four million would have died if this population had the same death rate as the global rich2.

While poor countries have by far the greatest ongoing health needs, they also have the least capacity to meet those needs. The least developed countries spend between $1 and $25 per capita per year on health whereas developed nations spend between $1,500 and $5,000.3 The Organization for Economic Co-operation and Development (OECD), which compares trends among 30 industrialized countries, shows that the U.S. spends more than $5,000 per capita on health care – greater than 50 percent more than any other country.

In addition to the pervasive and debilitating effects of endemic disease, developing countries are likely to suffer much more from the effects of acute health hazards, ranging from natural disasters (such as the South Asian tsunami) and dislocations (due to civil unrest, violence, and war), to emerging infectious diseases such as highly pathogenic avian Influenza (A) H5N1. The least well-off countries will suffer most in a public health emergency because they do not have the health infrastructures, vaccines, and essential medicines that are available to developed countries. Pandemic influenza plans in most developed countries, for example, rely on stockpiling vaccines and antiviral medications, which are out-of-reach to the developing world4. In conditions of extreme scarcity, the countries that are most likely to gain access are those that manufacture medical countermeasures and have the resources to purchase expensive vaccines and medicines5.

Certainly, governments and philanthropic organizations have responded to highly visible natural disasters, droughts, and famines – at least while the issue remains salient in the media. And there has been increased international assistance for high-profile health threats such as AIDS and pandemic influenza. Even factoring in these new investments, however, most OECD countries have not come close to fulfilling their pledges to donate 0.7 percent of Gross National Income per annum.6 Developed countries would have to invest an additional $100 billion by 2015 to close the vast investment gap.7 WHO projects that these additional expenditures would save millions of lives every year.8 The question then arises, if States have the capacity to assist less developed states (while continuing to fulfill their obligations to the health of their own citizens) to what extent do they have a well-defined legal or ethical responsibility to do so?9 We claim that States have a responsibility to help, derived from international law, political commitments, ethical values, and national interest. However, international law does not enable States to operationalize this responsibility in specific cases and in a transparent manner. As a result, transnational cooperation by States tends to be ineffectual and inconsistent – although States can and sometimes do act effectively when ethical and legal responsibilities and commitments align with self-interest.

Obligations Under International Law

to Provide Assistance

States recognize an obligation for international cooperation, but the extent of this obligation remains subject to continuing debate. The United Nations Charter includes among its purposes the achievement of international cooperation in solving international problems of an economic, social, cultural, or humanitarian character, and in promoting and encouraging respect for human rights and for fundamental freedoms for all without distinction as to race, sex, language, or religion.10 International human rights law expresses a universal duty to assure human dignity and health. The Universal Declaration of Human Rights guarantees respect for economic, social, and cultural rights, considering them “indispensable for human dignity,” and proclaims that they should be realized “through national effort and international cooperation.”11

A State’s duty of international cooperation and assistance is derived from a number of international legal sources, including the International Covenant on Economic, Social and Cultural Rights (ICESCR), the human right to health, and the International Health Regulations (IHR), discussed below.

International human rights law expresses a universal duty to assure human dignity and health. The Universal Declaration of Human Rights, which is widely considered to be part of customary international law, guarantees respect for economic, social, and cultural rights, considering them “indispensable for human dignity,” and proclaims that they should be realized “through national effort and international cooperation.”12

According to International Covenant on Economic, Social and Cultural Rights states that have ratified the ICESCR have made a formal legal commitment to help one another: each State Party “undertakes to take steps individually and through international assistance and cooperation, especially economic and technical, to the maximum of its available resources, with a view to achieving progressively the full realization of the rights recognized… by all available means, including particularly the adoption of legislative measures.”13 Although the ICESCR provides for progressive realization and acknowledges the limits of available resources, it also imposes immediate obligations. State Parties to the Convention “undertake to guarantee” that relevant rights “will be exercised without discrimination.” More importantly, the obligation “to take steps” is not qualified or limited. General Comment 3 states, “While the full realization of the relevant rights may be achieved progressively, steps towards that goal must be taken within a reasonably short time. Such steps should be deliberate, concrete and targeted….”14 The General Comment contains detailed standards for implementing the right to health including the duty to:

• adopt framework legislation (e.g., a national strategy and plan of action, with sufficient resources);
• identify appropriate right to health indicators and benchmarks (e.g., to monitor improvements in community health); and
• establish adequate remedies and accountability (e.g., access to courts, ombudsmen, or human rights commissions).

The duty of international cooperation is often framed specifically in the context of a universal right to health. The International Bill of Human Rights, as well as numerous U.N. and regional human rights treaties, proclaim the right to health.15 Many countries have also incorporated a right to health or health care in their domestic law.16 In affirming that human beings are entitled to the “highest attainable standard of physical and mental health,” Article 12 of the ICESCR lists elements that are necessary steps for its realization:

• reduction in stillbirths and infant mortality;

• healthy development of the child;

• improvement in environmental and industrial hygiene;

• prevention, treatment and control of epidemic, endemic, and occupational diseases; and

• creation of conditions to assure medical services in the event of sickness.

The ICESCR, therefore, defines health to include both physical and mental health and lists a range of objectives that need to be achieved in cooperation with the international community.17 The Committee on Economic, Social and Cultural Rights’ General Comment 14 provides guidance on the normative content and States’ international obligations concerning the right to health.18 Normatively, the Committee interprets the right to health inclusively. It extends not only to health care but also to the underlying determinants of health (e.g., potable water, sanitation, safe food and adequate nutrition, housing, healthy occupational and environmental conditions, and health information). The right to health must be available in sufficient quantity; accessible to everyone without discrimination, including physical and economic availability; acceptable to different cultures, genders, age groups; and of adequate quality. The right to health, like all human rights, imposes three types or levels of obligations on States Parties: respect (refrain from interfering with the enjoyment of the right to health), protect (prevent third parties from interfering with the right to health), and fulfill (adopt appropriate legislative, administrative, budgetary, judicial, promotional, and other measures towards the full realization of the right to health).

As mentioned, all States Parties to the IESCR have a duty to take steps, individually and through international assistance and cooperation, especially economic and technical, towards the full realization of social and economic rights, such as the right to health. The Alma-Ata Declaration on Primary Health Care states that the existing gross inequality in health status is of common concern to all countries.19 General Comment 14 declares that States commit to taking joint and separate action to achieve the full realization of the right to health. “Depending on the availability of resources, States should facilitate access to essential health facilities, goods, and services in other countries, wherever possible and provide the necessary aid when required.”20 They should also ensure that the right to health is effectuated through international agreements and international financial institutions, such as the International Monetary Fund and the World Bank. Economically developed States Parties have a special responsibility and interest to assist the poorer developing States through international aid and distribution of resources, such as safe and potable water, food, and medical supplies.

Political Commitments to Assist Poor

States in Need

Critics say that political obligations are not binding in practice and are therefore ineffectual. There is some truth to this criticism. Treaties do not specify how much States should give, to whom, and in what circumstances; nor have States developed operational principles that would enable them to negotiate transparently the contributions that each should make in specific cases. However, the fact that States have formally agreed by treaty to assist poorer countries is significant in that it provides a foundation for a system of international cooperation that may in time have practical and operational effect. Coinciding with their assumed legal obligations, States have made political promises to provide assistance and cooperate with one another to achieve humanitarian and human rights objectives. Although such commitments fall short of legal undertakings, they generate obligation by implicating the credibility of the governments involved and raising expectations of recipient countries. In the United Nations Millennium Declaration, Heads of State recognized that “in addition to our separate responsibilities to our individual societies, we have a collective responsibility to uphold the principles of human dignity, equality and equity at the global level. As leaders, we have a duty to all the world’s people, especially the most vulnerable….” The Declaration goes on to state that “global challenges must be managed in a way that distributes costs and burdens fairly in accordance with basic principles of equity and social justice….”25 The Millennium Development Goals, attached to the Declaration and adopted as targets by most States, affirm the general commitment of States to assist one another internationally to promote development, particularly in relation to health. Goal 8 notably emphasizes the importance of developing a global partnership for development.26 The Group of Eight leading industrialized nations (G-8), in response to the Millennium Development Goals, has committed itself to “work to ensure that bilateral and multilateral assistance to help mobilize capital and expertise to accelerate growth and free up resources for productive use by people in developing countries.” The purpose of this declaration is to help eradicate poverty.27

In summary, a majority of States has made legal undertakings and political commitments to help protect the health of people in all countries (not just their own). Often framed in general terms, the underlying promises of these undertakings and commitments have not been fulfilled. Although a State’s primary obligation is to the people within its jurisdiction, it has a responsibility (and sometimes a legal obligation) to assist needy countries and populations abroad provided it has the resources to do so.

One may ask why States have voluntarily entered into agreements and made political promises to offer international assistance on matters of health. Part of the answer is that governments and most political leaders understand that they have ethical responsibilities to those who are less fortunate at home and abroad. For one thing, their electorates may hold them accountable if they behave unjustly. For another, political authorities incur risks and costs if they fail to address social problems – and this is true increasingly when they ignore visible suffering among people in poor countries. Finally, many officials and political leaders may feel personally a moral impulsion to act. The “common concern of mankind” is a powerful ethical force in any locale.32 Developing inclusive and effective international collaboration is extremely difficult to achieve both generally and in particular cases. While States acknowledge their general commitment to a just international order, they remain unwilling to say that their decisions to assist other States and societies abroad are more than elective. In general, they wish to retain their freedom and to choose when to assist and to determine what kind of assistance is to be offered. As long as this is so, international assistance will remain uneven and inadequate.