The Right to Health of Nomadic Groups

By Marchi, Paolo | Nomadic Peoples, June 2010 | Go to article overview

The Right to Health of Nomadic Groups


Marchi, Paolo, Nomadic Peoples


Abstract

Nomadic groups have often being discriminated against in many different fields. Often states do not meet their obligation to respect, protect and fulfil nomads' human rights. This article applies a human rights perspective to nomads' difficulties in accessing health care services. The article highlights how to use international human rights instruments and standards, and even regional and national case law, in order to remind states of their obligations towards nomads. The final section is a case study focussing on the nomadic population of Turkana, Kenya.

Keywords: human rights, indigenous peoples, right to health, access, Turkana

Introduction

This article offers a human rights analysis of the problems faced by nomadic peoples in using health care services, and in particular looks at issues of accessibility and 'acceptability' (facilities, goods and services have to be respectful of medical ethics and culturally appropriate).

The first part of the article focuses on the contextualization of nomadic groups. It is important, from a legal point of view, to define whether they can be identified as minorities and/or indigenous peoples, in order to better pinpoint the specific obligations states have toward them. The importance of establishing if nomadic peoples can be considered minorities and/or indigenous peoples, and therefore can 'enjoy' a special treatment due to long time discrimination against them, is tied to two main factors.

First of all showing that they are minorities and that they are constantly discriminated against would open the possibility of applying 'positive discrimination' (also called affirmative action) to them. In cases where a specific group has suffered because of constant discrimination by the dominant group in a country, human rights law allows for a 'positive discrimination', therefore a state can establish temporary rules that in a 'disproportionate' way are favourable to the group that has been discriminated against in order to recreate a balance between the groups (1) (those are just temporary measures).

The second factor is related to the concept of progressive realization within the maximum of available resource, as conceived by the International Covenant on Economic, Social and Cultural Rights (ICESCR: art. 12). This concept allows states to realize the right in a gradual way, according to their available resources, rather than under the obligation of doing it immediately. However, the option of progressive realization does not apply when it comes to 'core obligations'. In those cases, states remain under the obligation to realize the right immediately. The obligation to eradicate any kind of direct or indirect discrimination against nomadic groups in the enjoyment of their right to the highest attainable standard of health is one of such 'core obligations'.

The second part of the article deals with the concept of the right to the highest attainable standard of physical and mental health, as outlined in the ICESCR, with a particular focus on its underlying determinants and its accessibility and acceptability aspects. The two principles of 'participation' and 'nondiscrimination' are analysed from the two different angles: indigenous peoples' rights, and the fight to health. The analysis of these two human rights principles from these different angles has interesting implications.

The last part of the article uses a case study (Turkana) to address the practical applications of the legal instruments analysed in the previous sections. The choice of the Turkana has been made on the basis that, as far as access to health services is concerned, this group has a lot in common with other groups of nomadic pastoralists in Africa. It is also interesting to focus on an African context, as in a hypothetical scenario of bringing a complaint before a judicial or quasijudicial body, the one most inclined to consider other human rights instruments would be the African Commission. …

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