By Tais A. Ruiz Palacios, LLB Student International and European Law, t.a.ruiz.palacios@student.rug.nl

One of the most pressing concerns in the international community, particularly in what concerns the realisation of human rights de jure and de facto, is the provision of appropriate medical care to marginalised groups, such as indigenous peoples, in a safe and non-discriminatory manner. Despite several international instruments having developed this right of access to healthcare,[1] indigenous populations are being restricted, or even outright prevented, from enjoying an appropriate standard of healthcare. Thus, the following question arises: To what extent do the rights guaranteed under international law successfully realise and sufficiently protect the rights of these marginalized groups in practice?

This question will be examined in a two-part blog post series. This first instalment will focus on the Convention concerning Indigenous and Tribal Peoples in Independent Countries (C169) (hereinafter ILO Convention C169) and the UN Declaration on the Rights of Indigenous Peoples (hereinafter ‘UNDRIP’). Particularly, it will provide a brief explanation of their relation to the right to access to healthcare, and the different approaches they take in the development of this right. The second part of this blog post series part will address a case study (Peru), in order to understand how the standards and rights found in international instruments can be seen in national practice.

ILO Convention C169 was adopted in 1989, as one of the first international instruments concerning the rights of indigenous populations. Besides from its legally binding nature, this instrument is extremely relevant as it explicitly provides for the right to healthcare and adequate living conditions, holding in Article 7 C169 that efforts in these two areas, as well as work and education, are to be a priority in policymaking within the territory they inhabit.[2] The right to health is further developed in Article 25(1) C169: national governments are to take measures to ensure that indigenous and tribal people ‘may enjoy the highest attainable standard of physical and mental health’, whether by the government providing them with “adequate health services” or resources so that these communities can themselves develop and deliver health services.[3] This is further developed in subsections 2 to 4, which focus on community building and inclusion for the development of health services.

Despite being legally binding, the protection afforded by the ILO Convention C169 might not be entirely effective in the enforcement of the right to access to healthcare for indigenous populations. Tennant highlights that, during what he calls the ‘ILO period’, the main actors in the implementation of the rights of indigenous peoples were national governments.[4] Given that national governments are not always privy to the particularities of the situation of indigenous communities, not least because of their marginalisation throughout history, it is of no particular surprise that these rights were not sufficiently effective in practice. Therefore, in order to better provide for the right to access to healthcare, it might be necessary to recognise that indigenous peoples themselves should be at the forefront of the implementation of their rights, and the drafting of international and national instruments seeking to protect them.

Tennant highlights that processes that have not included participation by indigenous people are ‘rejected as illegitimate’,[5] as ‘indigenous people are, like other peoples, both capable and entitled to participate equally in the international legal and political system’. For this reason, ILO Convention C169 has been rejected,[6] as it contains a view on indigenous populations from the point of view of developed countries, which in turn affects how their rights are formed and subsequently enforced. One document that is legitimate in the eyes of indigenous peoples is the UN Declaration on the Rights of Indigenous Peoples (A/RES/61/295) or UNDRIP. Article 24 of the UNDRIP makes it clear that indigenous peoples have the right to practice traditional medicine, and at the same time, have ‘an equal right to the enjoyment of the highest attainable standard of physical and mental health’.[7] Member States are to take the ‘necessary steps’ to gradually fully realise this right. It is particularly interesting to note that, unlike ILO Convention C169, the Declaration takes notice and emphasises the importance of traditional medicinal practices.

The drafting, amendment, and adoption of its text included representatives of indigenous peoples, a novelty for processes establishing international instruments. The only ‘issue’ that can be attributed to it, which arguably may not even be a considerable hindrance given the rise of soft law in international law, is that UNDRIP is a non-legally binding United Nations Resolution.

This reconfiguration of the traditional model of international processes searching for a de jure protection and guarantee of the right to access to healthcare of indigenous peoples was produced in hopes of a better protection than C169. Since indigenous communities and organisations have participated in its drafting, UNDRIP could be considered the realisation of the procedural resistance identified by Tennant. Only in including indigenous peoples, can we properly understand and address the ‘social determinants of health’ that prevent their equal access to healthcare. As the UN highlighted, ‘indigenous people should not be cast as victims, however, but as critical assets to the diversity of global humanity’.[8] The inclusion of indigenous populations could, perhaps, provide a better protection to these peoples regardless of the non-binding character. 

Nevertheless, the words written on a document, despite including these ‘critical assets to diversity’, may not be sufficient to ensure the indigenous population’s rights, at least not in the long run. For instance, the Interethnic Association of Development of the Peruvian Jungle (‘Asociación Interétnica de Desarrollo de la Selva Peruana’ or AIDESEP) notes on the 6^th anniversary of UNDRIP that this declaration develops the rights established in ILO Convention 169, and provides opportunities for the indigenous peoples, and their communities and organisations, to communicate their proposals and share their points of views. Particularly, AIDESEP highlights that this Declaration ‘legitimises the Amazonic resistances and claims. Where nobody can make invisible or deny the existence of the indigenous peoples and their rights’.[9]  However, 5 years after this article, in 2017, AIDESEP noted that ‘In Peru there is no recognition of the indigenous peoples to the lands and territories they possess, occupy, use or have acquired traditionally, in conformity with Convention C169 of the ILO and UNDRIP, despite the state being part of Convention C169 and signatory of the UNDRIP’.[10]

Although this particular comment concerns territorial rights, an analogy can be made with the current status of the Peruvian indigenous populations in what concerns the right of access to health. It appears that the inclusive nature of UNDRIP, albeit initially with a hopeful and optimistic reception, did not make this de jure document a de facto reality. The actual situation of the indigenous populations in what concerns this right of access to health, as will be appreciated in the second part of this blogpost ‘De facto’, remains precarious and with much room to improve.

[1] International Covenant on Economic, Social and Cultural Rights (adopted 19 December 1966, entered into force 3 January 1976) 993 UNTS 3, Art. 12(1); Art 12(1) ICESCR reads “The States Parties… recognize the right of everyone to the enjoyment of the highest attainable standard of physical and mental health… “.Convention on the Rights of the Child (adopted 20 November 1989, entered into force 2 September 1990) 1577 UNTS 3, Art 24; Art 24(1) CRC reads “States Parties recognize the right of the child to the enjoyment of the highest attainable standard of health and to facilities for the treatment of illness and rehabilitation of health. States Parties shall strive to ensure that no child is deprived of his or her right of access to such health care services.” Universal Declaration of Human Rights (adopted 10 December 1948 UNGA Res 217 A(III) (UDHR), Article 25; Art 25(1) UDHR reads “Everyone has the right to a standard of living adequate for the health and well-being of himself and of his family, including food, clothing, housing and medical care and necessary social services…”; it is important to note that the UDHR is a non-binding international instrument.

[2] Art. 7(2) C169 reads “The improvement of the conditions of life and work and levels of health and education of the peoples concerned, with their participation and co-operation, shall be a matter of priority in plans for the overall economic development of areas they inhabit. Special projects for the development of the areas in question shall also be so designed as to promote such improvement.”

[3] Art. 25(1) C169 reads “Governments shall ensure that adequate health services are made available to the peoples concerned, or shall provide them with resources to allow them to design and deliver such services under their own responsibility and control, so that they may enjoy the highest attainable standard of physical and mental health.”

[4] Chris Tennant, ‘Indigenous Peoples, International Institutions, and the International Legal Literature from 1945-1993’ (1994) 16 Human Rights Quarterly 1, 35-6 .

[5] Chris Tennant (n 12), 46.

[6] Chris Tennant (n 12), 48.

[7]United Nations Declaration on the Rights of Indigenous Peoples (n 7), Article 24.

[8] United Nations Press:  https://www.un.org/press/en/2007/ga10612.doc.htm

[9] AIDESEP: http://www.aid e sep.org.pe/noticias/recuento-un-dia-como-hoy-hace-6-anos

[10]AIDESEP:  http://www.aidesep.org.pe/noticias/informe-de-la-coalicion-de-organizaciones-indigenas-amazonicas-del-peru-agrupadas-por