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| UN Headquarters in Geneva, Switzerland. 2017/UN photo |
The argument is based on a 2 February 2017, five-page, confidential memo sent from the Office of the UN High Commissioner on Human Right in Geneva to the US Department of State in Washington, DC. The memo expresses “serious concerns” about the prospective loss of health insurance coverage for nearly 30 million Americans. The memo goes on to urge the US Government to take “all necessary interim measures [. . .] to prevent the alleged violations”. As if the Commission’s memo wasn’t clear enough, there is a bold threat that if the “allegations” of loss of health coverage are proved accurate, then the person(s) responsible for failing to prevent said loss are guaranteed to be held accountable.
The memo was written by Dr Dainius
Puras, Special Rapporteur on the Right of Everyone to the Enjoyment of the
Highest Attainable Standard of Physical and Mental Health, cites three specific
areas of treaty law as grounds for why repealing the ACA would constitute a
violation of public international law.
First is that Article 25 of the
Universal Declaration of Human Rights “establishes everyone’s right to a
standard of living adequate for the health and well-being, including food,
medical care and necessary social services.”
Next, Dr Puras cites Article 5(e) of
the International Convention on the Elimination of All Forms of Racial
Discrimination, ratified by the United States in 1994, calls on states to
“guarantee the right of everyone,” including “the rights to public health, medical
care, social security and social services” without regard to race or color.
Lastly, Article 12 of the International
Covenant on Economic, Social and Cultural Rights, under which states have “the
core obligation to ensure the right of access to health facilities, goods and
services on a non-discriminatory basis, especially for vulnerable or
marginalized groups.” The agreement was signed but not ratified by the US,
which is still “obliged to refrain from acts that would defeat the covenant’s object
or purpose, in conformity with Article 18 of the Vienna Convention on the Law
of Treaties.”
When I worked in the diplomatic world,
I was taught that the epithet “serious concerns” is kind of like saying “we are
so f—ng angry right now that we are ready to fly in a start shooting someone!!”
Couple this language with the bold threat of “guarantee the accountability of
any person responsible” for the loss of health coverage and now you have a
complete cease and desist demand with scathing undertones.
Making demands and threats is not good
diplomacy. The UN, through the said declaration, convention, and covenant, has
reiterated that the aspirational standard of living includes not only includes
food and shelter, but access to medical care and social security and other
social services. This is agreeable, but it is a long stretch to say health care
is a universal human right.
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| UN Council on Human Rights Chamber. 2017/UN photo. |
The principle of universal rights was
first emphasized in the 1948
Universal Declaration on Human Rights, which lists free speech, freedom
from fear and want, and the freedom to rebel against tyranny and oppression if
freedoms are not protected by rule of law as values recognized the by the
international community. Other core values listed are the dignity and worth of
the individual human life, equality between men and women, and the promotion of
better standards of life.
Within the Declaration are listed the
articles, which resemble the US’ Bill of Rights and a few later amendments.
They include right to due process under law, right of a speedy and fair trial,
prohibition on slavery, prohibition against torture and inhuman punishment,
right of privacy, right to have a nationality, right to flee persecution and
seek asylum, right to movement, right to marry and have a family life, right to
own property, freedom of thought, conscience and religion, freedom of
expression and opinion, right to assemble and associate, right to work and seek
employment, et cetera.
In addressing Dr Puras’ Article 25
Human Rights claim, he stopped shy of reading the entire clause, which
indicates that “right of a standard of living adequate for health and
well-being” can mean many clean air, pure water, transparency about what is in
food and drugs, adequate law enforcement, etc. However, the clause goes on to
read that the right to adequate food, clothing, housing, medical care, social
security in the event of circumstances beyond the individual’s control, such as
disability, widowhood, old age, or sickness.
It is pretty safe to say that the
Declaration on Human Rights may be broadly interpreted to suit a person’s
needs, falls short in declaring universal affordable health insurance a human
right. The Declaration makes clear an obligation on nations to take care of
citizens who have fallen through the cracks – the disabled, sick, old, and
widowed. The connecting factor between these groups is that they cannot
contribute to the economic output of a nation.
Dr Puras’ memo fails to consider the notion
that repealing the ACA might actually make health insurance in American more affordable
and more accessible. There would have to be some tweaks to the law, but
certainly allowing consumers to buy across state lines and to allow insurers to
offer a la carte plans would reduce the cost.
Considering healthcare costs for the US
are three times the OECD average currently (OECD health statistics 2016), the
idea of affordable healthcare being only tied to insurance premiums is absurd
economics.
The average self-employed Colorado
family with a special needs child could expect to pay in 2016 around $50,000 in
health insurance premiums. According to the US Census ACS survey, the 2015 real
median household income in Colorado was just under $64,000. Assuming that
family pays 20% in taxes, that leaves about $1,000 (after health insurance) for
rent/mortgage, food, water, clothing, transportation, leisure activities, etc.
According to the Economist, Americans
in the lowest 20% of income are 15.5% better off, whereas all other income decile
are worse off by 0.3-1.1%. It seems tough to put a number to Americans being
worse or better under the ACA, as there are many moving parts, such as Medicaid
Expansion, which would have most certainly helped the lowest 20%.
The Economist also reported that in the
first quarter of 2017, American household income reached its highest level since
the 2007-08 Financial Crisis began. Considering the ACA was signed into law by
Pres Obama on 23 March 2010, it is hard to say how much improvement, if any,
the law made since American’s earnings ratcheted down and health care and
education costs began raising prices astronomically.
Recently I visited Connect for Health
Colorado, Colorado’s health insurance marketplace, after plugging in my age,
and a few key health stats (note, under the ACA you cannot be turned down for a
pre-existing condition, but your premium can increase) and the lowest monthly
quote I received was $750! Multiplied by 12 to see a full year’s cost and the
number is $9,000! In 2016-17, the penalty for not having health insurance is
2.5 percent of income or $695, whichever is greater. Economically speaking, it
is cheaper to pay the penalty, and then quickly enroll in an exchange plan if
my health takes a dramatic turn for the worse.
Dr Puras then uses the International
Convention on the Elimination of All Forms of Racial Discrimination as grounds
that repealing the ACA would unjustly discriminate against some people. Having
the ACA in place unjustly discriminates against the middle class and the way
the ACA targets self-employed persons is particularly disturbing. Assuming
Medicaid Expansion stays in place, it is a tough argument to say that repealing
the ACA is discriminatory.
The last part of Dr Puras’ legal
authority is the International Covenant on Economic, Social and Cultural Rights,
which the US signed, but has not ratified, thus its bindingness is persuasive
only. The key argument is over “access to health facilities.” In the US, if you
are injured or in need of medical attention, you will receive it at the nearest
hospital, with top facilities, highly skilled doctors and nurses, and never
will you be discriminated against on the basis of race, economic status, lack
of health insurance, religion, sex, gender, political persuasion, et al. The
reason is the adherence to the Hippocratic Oath, which is a core principle in
American medicine and treatment. If you are unable to pay, the local government
will pick up the tab, with reimbursements coming from the state level. This is
not the preferred way of doing business and the medical provider will want to
work out a payment plan, but at no point in time was access to health
facilities denied before or after the ACA.
Under UN General Assembly Resolution
A/67/L.36 (6 Dec 2012), affordable universal healthcare became part of the UN's
Post-Millennium Development Goals. The resolution is a way to hold member
states accountable if they fail to comply. The Commission on Human Rights is
charged with overseeing compliance, since spending on healthcare is treated as
a fundamental human right. Poorer states may rely on foreign states for
financial assistance.
A major problem with basing interpretation
and authority on UN General Assembly resolutions is that the United Nations
doesn’t consider UNGA resolutions to be legally binding.
Further, United States courts
traditionally have not considered UNGA resolutions to be authoritative sources
of international law, unless the resolution merely restates legal principles
that could be verified by reference to recognised sources such as customary
international law, treaties, and judicial decisions.
Even as some US courts are more
receptive now days to UNGA resolutions, there is a danger here, as many UNGA
resolutions contradict treaties, other resolutions, member state’s
constitutions, and member state’s domestic law.
Quick example: UNGA Resolutions 339 A
and B - Delegations voted in favour of both resolutions which called for
maintaining a UN Command on the North/South Korean border and dissolving the UN
Command and remove all foreign troops from South Korea.
Only 58 out of 200+/- nations have a
form of affordable universal health care hardly constitutes sufficient state
practice to establish customary international law (other element required is
opinion juris, which is the belief that practice is legally obliged).
Even if affordable health care is
deemed a right under treaty or convention, enforcement will be a problem.
It seems that if the UN is so concerned
about the domestic affairs of nations, they should fund and provide the
services they are desirous of compelling.
At a time when nations are ever more
sceptical of large International organisations, perhaps flaming the
dissatisfaction is inimical diplomacy.
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