09.05.18

Argentina: Alarming regressive measure on the right to health

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On September 3, 2018, after acknowledging the ongoing economic and financial crisis, the government of Argentina announced a series of austerity measures aimed at reducing Argentina’s fiscal deficit in 2019. The announcement confirmed the rumors of a substantial restructuring in the cabinet and the elimination of ten Argentine ministries, including the Ministry of Health.

Under the new restructuring plan, the Ministry of Health will be degraded to the rank of State Secretariat and absorbed by the Ministry of Social Development. With this change, the Health Ministry becomes a dependency of another ministry, it loses its functional and budgetary autonomy and its power to formulate, intervene and prepare public policies in a direct relationship with the provinces.

The full impact of this decision is not clear yet, but the announcement has raised grave concerns and even led to the resignation of the Director of the AIDS, Sexually Transmitted Diseases, Hepatitis, Tuberculosis and Leprosy program. At the moment, other resignations within the former Health Ministry are not ruled out.

Austerity measures, such as the ones announced by the government of Argentina, carry the risk of having a great impact on the ability of individuals to exercise their human rights and, at the same time, diminish the power of States to fulfil their obligations to protect those rights. These measures exacerbate existing structural inequalities and particularly affect vulnerable and marginalized groups in society who suffer from decreasing access to basic necessities. Besides, austerity measures bring concerns over the progressive realization of economic, social and cultural rights and the principles of non-retrogression, non-discrimination and minimum core obligations.

Argentina ratified the International Covenant on Economic, Social and Cultural Rights (ICESCR) in 1986, which sets out the State’s obligation to take appropriate measures, according to the maximum of its available resources to achieve progressively the full realization of the rights recognized in the Covenant, including the right of everyone to the enjoyment of the highest attainable standard of physical and mental health (article 12). This obligation can also be found in other human rights treaties; for instance, in Article 26 of the American Convention on Human Rights.

The principle of progressive realization implies a correlative duty not to take any regressive measure that would impair the enjoyment of economic, social and cultural rights. With regards to the right to health, the Committee on Economic, Social and Cultural Rights –the body that monitors the implementation of the ICESCR— has noted that “there is a strong presumption that retrogressive measures taken in relation to the right to health are not permissible”. Therefore, in times of crisis any policy change, must meet certain requirements: first, the policy must be a temporary measure “covering only the period of crisis”; second, the policy must be necessary and proportionate; third, the policy must not be discriminatory and designed in a way that mitigate inequalities and ensure that the rights of the disadvantaged and marginalized groups are not disproportionately affected; fourth, the policy must identify the minimum core content of rights and ensure its protection at all times; and, fifth, there must be a genuine participation of affected groups and individuals in decision-making processes.

Argentina’s announcement on the Ministry of Health is alarming. Lowering the rank of the Ministry of Health to a State Secretariat under the orbit of another ministry has the potential of causing retrogression in the enjoyment of the right to health as it decreases public expenditure on health programs and State-sponsored projects and can severely undermine, among others, the access to health facilities, goods and services by vulnerable and marginalized groups. It is important for the government of Argentina to formulate and implement a response to the economic crisis that is consistent with the parameters of international human rights law.

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The views reflected in this blog are those of the individual authors and do not necessarily represent those of the O’Neill Institute for National and Global Health Law or Georgetown University. This blog is solely informational in nature, and not intended as a substitute for competent legal advice from a licensed and retained attorney in your state or country.

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