This submission has been posted as part of a blog series that seeks to profile the newly created NNHRR Working Group on Economic, Social, and Cultural Rights blog series, its vision and plans, and to highlight the expertise of its members, showcasing their research and/or contributions to ESCR.
By: Eduardo Arenas Catalán & Leigh Haynes
Introduction
In this brief contribution, we look at the Committee on the Elimination of Racial Discrimination General Recommendation No. 37 on racial discrimination in the enjoyment of the right to health. Our interest in this instrument emerges from its suggestion that a structural approach is effective in tackling the challenge of racial discrimination. We find this appealing because it relates to our shared conviction that human rights law should not only focus on individual remedies and access to courts, but must also work towards the provision of universal public services as a conduit to achieve human rights for all. After highlighting how the recommendation addresses structural challenges, we conclude with a discussion of how the recommendation can serve as a source of inspiration for human rights law and human rights law research in addressing racial discrimination not as an individual but systemic problem.
General Recommendation No 37
In August of 2024, the Committee on the Elimination of Racial Discrimination issued General Recommendation No. 37 on racial discrimination in the enjoyment of the right to health. The recommendation makes important contributions to human rights and for public health: it highlights the structural underpinnings of racial discrimination, has a strong focus on the intersectionality of the many determinants of health, and it positions itself on an overall continuum with the human rights corpus. It also provides important context for the development of proactive, upstream measures towards the prevention of racial discrimination in the enjoyment of the right to health, which can be integrated into the work of human rights researchers.
In exploring the synergies and interdependencies between the right to health and the right to equality in the context of racial discrimination, General Recommendation No. 37 makes a significant contribution to human rights law. The main value of the recommendation lies in its invitation to conceive of human rights challenges comprehensively through the lens of intersectionality. The recommendation understands racial discrimination as a phenomenon that occurs at ‘the structural level’ (para 10), showing how it entails a health risk from the perspective of the social determinants of health (para 18). An example of this approach is the recommendation’s discussion of the right to bodily autonomy concerning criminalisation of abortion (paras 33, 34 and 51(e)). As the General Recommendation notes, criminalisation of abortion constitutes a serious health risk, especially for Indigenous women, gender-diverse persons and women of racial and ethnic minorities. At the same time, this has negative repercussions for these groups’ enjoyment of their right to equality. Human rights bodies have addressed this problem in Brazil and in Peru.
Further to presenting a more comprehensive conception of human rights challenges, the General Recommendation emphasises that racial discrimination occurs at not only interpersonal and social levels, but also at the structural level. Thus, in our view, structural implementation or the need to rely on comprehensive strategies that address the root causes of health inequities and promote social justice, equality, and inclusion (para 46), is necessary to prevent human rights violations that arise from discriminatory treatment. The recommendation provides a few examples of this. On the one hand it summons states ‘to adopt structural measures along with individual reparation’ (para 67 (h)). Similarly, the recommendation highlights the needs for health services that are free at the point of care to ensure that health services are available to all and do not result in financial hardship (para 39). Acknowledging the need for action on structural social determinants of health, the recommendation asserts that people have the right to ‘context-sensitive preventive and protective measures’ to prevent discrimination structurally and intersectionally (para 19). Such measures include those that address barriers to accessing healthy foods, disproportionate risk of occupational hazard or workplace injury, discrimination in the private rental market, and disproportionate exposure to climate-induced health hazards (paras 20, 21, 23).
A new question for critical human rights research
The General Recommendation’s observations on the structural nature of human rights pose thrilling questions for human rights law and human rights law researchers. The General Recommendation reinforces the imperative to proactively identify racism as a structural and social determinant of health embedded in institutions. Human rights work and research might take this lead to propose mechanisms that address these underlying determinants through structural implementation of human rights to prevent racial discrimination and ensure equality and the right to health.
For a start, these observations are relevant insofar as they show how human rights research and work can extend towards developing and recommending measures likely to realise human rights objectives, not only identifying threats. This is certainly so whenever these recommendations rely on respected human rights instruments such as the Alma-Ata Declaration or whenever they integrate sound epidemiological evidence. This is more than a call for more data-based evidence in human rights work and research; it entails the integration of critical scholarship.
Approaches like law and political economy, which attempt to restore structural and material analyses of inequality within legal research, including the question of ‘how law and policy construct systematic forms of hierarchy and domination through a market that is always embedded in social relations’, are relevant here. Rather than exclusively focusing on individual remedies aimed at marginalised persons or groups, such an approach is more likely to prevent human rights violations. Situating racial discrimination within the wider legal and economic structures comprising health systems allows for the problem of racial discrimination to be understood as an institutional and systemic critique. One which requires radical forms of redistribution, as recently proposed by the UNCESCR and the reorganisation of public social services along with universality.
Bio:
Eduardo Arenas Catalán, Assistant Professor in International Law, Faculty of Legal Sciences, Open Universiteit.
Leigh Kamore Haynes, Associate Professor of Practice, Department of Public Health, Simmons University.