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© koninklijke brill nv, leiden, 2016 | doi 10.1163/15718158-01702007

brill.com/aphu

* CEB acknowledges this research was part of Work Package 2 (wp2) of the Go4Health Project. Funding for Go4Health from the European Union’s 7th Framework Programme (HEALTH-F1-2012-305240) and the Australian Government’s NH&MRC European Union Collaborative Research Grants (1055138).

Article

∵

Searching for the Elusive? Examining the Right to Health’s Status in the Pacific

Jennifer Y KallieSchool of Public Health, Faculty of Medicine and Biomedical Sciences, The University of Queensland

jenny.kallie@gmail.com

Claire E BrolanSchool of Public Health, Faculty of Medicine and Biomedical Sciences, The University of Queensland; Dalla Lana School of Public Health, University of Toronto

c.brolan@uq.edu.au

Nicola C RichardsSchool of Public Health, Faculty of Medicine and Biomedical Sciences, The University of Queensland

Abstract

Integrating the right to health is pivotal in progressing health and development in the Pacific. The Sustainable Development Goal (sdg) agenda provides an opportunity for this, given the relationship between health, human rights, climate change and sustain-able development. The right to health’s content can be utilised to progress country obligations in various ways: through facilitating implementation of Universal Health

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Coverage, supporting the development of health metrics, and assisting in equitable health policies. Cumulatively, such measures can act as process and outcome indica-tors of a state’s progressive realisation toward achieving the right to health.

In analysing the status of the law and policy relating to the right to health, this study has established a right to health baseline for the Pacific region at sdg commencement, contributing both to monitoring and evaluation, and promoting visibility of this often overlooked region. Methods included a systematic review of the literature on the right to health, and review of six structural rights indicators in existing law and policy relating to the right to health in the 16 Pacific Island Forum countries and territories, 14 of which are recognised as small island developing states. Findings confirm the right to health’s marginalisation in the region. The ratification of United Nations (un) treaties, integra-tion of international human rights obligations into domestic law and policy, and com-pliance with reporting requirements were found to be piecemeal and ad hoc at best.

We argue that while legal recognition is only one step in the process of realising the right to health, the existence of right to health law and policy is a pivotal start if there is to be equitable implementation of the sdg health agenda. We also recommend Pacific nations develop one reporting framework, which can double to meet their reporting requirements under un treaty bodies and sdg 3 global health commitments.

Keywords

right to health (rth) – Pacific Island Forum countries – Sustainable Development Goal agenda – rth scorecard – status of rth in the Pacific

1 Introduction

In 2009, the Secretary-General of the Pacific Island Forum (pif) Secretariat ac-knowledged integrating the right to health is pivotal in progressing the region’s health and development:

All rights are fundamental to human development; the right to health is just as critical as the right to freedom of speech; and the right to livelihood is inexorably linked to freedom of movement. These are the essential un-derpinnings of the right to development. Without support for all human rights, I do not believe we can have real prospect for communities and for Forum Member States to achieve [the] sustainable development goals.1

1 Tuiloma Neroni Slade, ‘Ratification of International Human Rights Treaties: Added Value for the Pacific Region’ (Office of the United Nations High Commissioner for Human Rights

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There is crucial need for the post-2015 Sustainable Development Goal (sdg) agenda to advance health and development in the Pacific, especially given the relationship between health, human rights, climate change and sustainable development.2 Indeed, heads of government of the 16-member pif actively shaped formulation of the post-2015 sdgs,3 unsurprising as this region is al-ready highly affected by climate change.4 In 2014 Pacific leaders voiced this concern at the un Climate Summit and at the un International Conference on Small Island Developing States (sids). In adopting the post-2015 sdgs at the un General Assembly in September 2015, the world’s governments implic-itly acknowledged the need to redress the Pacific’s unique health and devel-opment challenges.5 For example, in the post-2015 global health goal, sdg 3 (“Ensure healthy lives and promote well-being for all, at all ages”), which contains 9 Targets and 4 Means of Implementation, Means of Implementa-tion 3c draws specific focus onto the world’s sids (that includes numerous Pacific Island nations) in terms of achieving a “substantial” increase in “health financing and the recruitment, development, training and retention of health workforces”.6 Certainly challenges around human resources for health and

(ohchr) – Regional Office for the Pacific, Suva, Republic of the Fiji Islands qnd Pacific Islands Forum Secretariat (pifs), Suva, Republic if the Fiji Islands, 2009) <http://pacific .ohchr.org/docs/RatificationBook.pdf> accessed 4 September 2014.

2 Peter S Hill and others, ‘How Can Health Remain Central Post-2015 in a Sustainable Devel-opment Paradigm?’ (2014) 10 Globalization and Health; ‘Transforming our world: The 2030 Agenda for Sustainable Development’ (United Nations) <https://sustainabledevelopment.un.org/content/documents/7891Transforming%20Our%20World.pdf> accessed 6 October 2015; ‘Thematic Session – Climate, Health and Jobs: Session Notes’ (un Climate Summit, 23 September 2014) <http://www.un.org/climatechange/summit/wp-content/uploads/sites/2/2014/08/Climate-Health-and-Jobs-Session-Notes1.pdf> accessed 6 October 2015.

3 ‘Forty-Fifth Pacific Islands Forum, Koror, Republic of Palau’ (Pacific Islands Forum Sec-retariat, 29–31 July 2014) <http://www.forumsec.org/resources/uploads/attachments/ documents/2014_Forum_Communique_31Jul2014.pdf> accessed October 6, 2015.

4 Rokho Kim and others, ‘Climate change and health in Pacific Island States’ (2015) 93(12) Bul-letin of the World Health Organization 817; T Weir and others, ‘Social and cultural issues raised by climate change in Pacific Island countries: an overview’ (2016) 1 Regional Environ-mental Change; S Taylor and L Kumar, ‘Global climate change impacts on Pacific Islands terrestrial biodiversity: A review’ (2016) 9(1) Tropical Conservation Science.

5 ‘Draft resolution submitted by the President of the un General Assembly. Draft outcome document of the United Nations summit for the adoption of the post-2015 development agenda’ (un General Assembly, 12 August 2015) <http://www.un.org/ga/search/view_doc .asp?symbol=A/69/L.85&Lang=E> accessed 6 October 2015.

6 Ibid.

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health financing have been acute and longstanding in remote Pacific Island nations.7

The post-2015 sdgs are pivotal for the Pacific’s environmental well-being, human health and survival, and integration of the right to health into sdg health policy and planning by Pacific nations and their partners cannot be understated. The purpose of this article is to establish a right to health base-line for the Pacific region at sdg commencement. This will occur through two means: systematic review of the literature on the right to health and the Pa-cific, and by reviewing international and domestic laws and policy on the right to health (the structural indicators) in pif countries. This article contributes to the region’s visibility in global health and human rights affairs, which have been long-overlooked.

2 Background

2.1 Health in the PacificAustralia, New Zealand, and the 14 Pacific Island countries (pics) – Polynesia (Cook Islands, Niue, Samoa, Tonga, Tuvalu), Melanesia (Fiji, Papua New Guinea, Solomon Islands, Vanuatu), and Micronesia (Federated States of Mi-cronesia, Kiribati, Marshall Islands, Nauru, Palau) – comprising the pif, are in one of the world’s most natural-disaster prone regions (Figure  18). Many pif communities are vulnerable to the impacts of climate change,9 which

7 Lyn N Henderson and Jim Tulloch, ‘Incentives for retaining and motivating health workers in Pacific and Asian countries’ (2008) 6(18) Human Resources for Health; Azmat Gani, ‘Health care financing and health outcomes in Pacific Island countries’ (2009) 24 Health Policy and Planning; ‘who Country Cooperation Strategy for the South Pacific 2006–2011’ (World Health Organization, 2010) <http://www.wpro.who.int/entity/country_focus/country_offices/ccs_pic_2006_2011.pdf> accessed August 18, 2016; ‘Recruiting and Retaining Health Workers in Remote Areas: Pacific Island Case-Studies’ (World Health Organization, 2011) <http://apps .who.int/iris/bitstream/10665/44547/1/9789241501255_eng.pdf> accessed August 18, 2016); ‘who Country Cooperation Strategy for the South Pacific 2006–2011’ (World Health Or-ganization, 2010) <http://www.wpro.who.int/entity/country_focus/country_offices/ccs_pic_2006_2011.pdf> accessed August 18, 2016; ‘Recruiting and Retaining Health Workers in Remote Areas: Pacific Island Case-Studies’ (World Health Organization, 2011) <http://apps .who.int/iris/bitstream/10665/44547/1/9789241501255_eng.pdf> accessed 18 August 2016).

8 ‘Map of Forum Island Countries’ (Pacific Islands Forum Secretariat) <www.forumsec .org/pages.cfm/strategic-partnerships-coordination/disability/disability-in-pacific.html> accessed 9 September 2014.

9 EG Hanna and others, ‘Overview of Climate Change Impacts on Human Health in the Pacific Region’ (Commonwealth Government of Australia, Department of Climate

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threaten health security.10 Multiple additional factors exacerbate regional poverty: distance from (and inability to compete in) global markets, small do-mestic markets, limited resources, vulnerability to global economic changes, limited infrastructure and work opportunities, and dependence on fuel im-ports. Political instability (notably in lower and middle-income pics)11 and heavy reliance on aid compound the precarious economic landscape.12

Change and Energy Efficiency, 2011) <https://www.environment.gov.au/system/files/resources/913ce469-d94f-47b0-9db9-40b051a6d896/files/overview-climate-change -impacts-human-health-pacific-region.pdf> accessed 6 October 2016.

10 J Rodgers and others, ‘Climate change and health: a Pacific perspective’ in Common-wealth Secretariat (ed), Commonwealth Health Ministers’ Update 2009 (Pro-Book Publishing Limited, 2009).

11 Gregory B Poling and Elke Larsen, ‘Strengthening Governance and Development in the Pacific’ (Centre for Strategic and International Studies, May 4 2012) <https://www.csis .org/analysis/strengthening-governance-and-development-pacific> accessed 6 October 2016.

12 ‘Development Aid at a Glance: Statistics by Region: Oceania’ (Organisation for Economic Cooperation and Development, 2013) <http://www.oecd.org/dac/stats/documentupload /6%20Oceania-%20Development%20Aid%20at%20a%20Glance%202016.pdf> accessed 6 October 2016.

Figure 1 Map of Forum Island Countries

Palau

Australia

VanuatuFiji

Tonga

New Zealand

NiueCook

Islands

Samoa

Tuvalu

NauruKiribati

SolomonIslands

PNG

Federated Statesof Micronesia

Marshall Islands

MELANESIA

MICRONESIA

POLYNESIA

140ºE 160ºE 180º 160ºW 140ºW20ºN

10ºN

0º

10ºS

20ºS

30ºS

40ºS

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While pics have achieved progress on numerous health indicators, many struggle to provide basic healthcare.13 In several pics, sexually transmitted infections are on the rise as is multi-drug resistant tuberculosis, cholera and malaria.14 Non-communicable disease is the leading cause of death in eight pics.15 Other factors impacting health include gender inequalities and violence against women and children, while rapid urbanisation is resulting in densely packed squatter settlements on several islands, aggravating poverty, poor sani-tation and communicable disease.16 Also, health inequities experienced by Indigenous Australians and New Zealand’s Maori and Pasifika peoples cannot

13 ‘Pacific Island Overview’ (The World Bank, 2014) <http://www.worldbank.org/en/ country/pacificislands/overview#2> accessed 6 October 2016.

14 MD Kirk and others, ‘Risk factors for cholera in Pohnpei during an outbreak in 2000: les-sons for Pacific countries and territories’ (2005) 12(2) Pacific Health Dialog 17; Andrew Vallely and others, ‘The prevalence of sexually transmitted infections in Papua New Guinea: A systematic review and meta-analysis’ (2010) 5 PLoS One <http://journals.plos.org/plosone/article?id=10.1371/journal.pone.0015586> accessed 6 October 2016; Ian Wanyeki, ‘hiv surveillance in Pacific Island countries and territories: 2012 report’ (Secretariat of the Pacific Community, 2013) <www.spc.int/hiv/index2.php?option=com_docman&task=doc_view&gid=621&Itemid=1> accessed 6 October 2016; J O’Connor and others, ‘Tuberculosis surveillance in the Pacific Island countries and territories’ (Secretar-iat of the Pacific Community, 2009) <https://www.spc.int/frp/index2.php?option=com_docman&task=doc_view&gid=169&Itemid=33> accessed 6 October 2016); The Vivax Working Group, ‘Targeting vivax malaria in the Asia Pacific: The Asia Pacific Malaria Elimination Network Vivax Working Group’ (2015) 14 Malaria Journal 484; Shawn Wen and others, ‘Targeting populations at higher risk for malaria: A survey of national malaria elimination programmes in the Asia Pacific’ (2016) 15 Malaria Journal 271.

15 Sam Byfield and Rob Moodie, Addressing the world’s biggest killers: Non-communicable diseases and the international development agenda (Australian Council for International Development, 2013).

16 Edwina Kotoisuva, Combating violence against Indigenous women and girls: Article 22 of the United Nations Declaration on the Rights of Indigenous Peoples, International Experts Group meeting, New York, United Nations, Department of Economic and Social Affairs, 2012; Christine Forster, ‘Sexual offences law reform in Pacific Island countries: re-placing colonial norms with international good practice standards’ (2009) 33 Melbourne University Law Review 833; Rajat Khosla, ‘Sexual and reproductive health and rights in Asia and the Pacific: The unfinished agenda’ (2013) 28(1) Asia-Pacific Population Journal 5; Colleen L Lau and others, ‘Climate change, flooding, urbanisation and leptospirosis: fuelling the fire?’ (2010) 104(10) Transactions of the Royal Society of Tropical Medicine and Hygiene 631; John Connell, ‘Elephants in the Pacific? Pacific urbanisation and its discontents’ (2011) 52 Asia Pacific Viewpoint 121; Paul Jones, ‘Searching for a little bit of utopia – understanding the growth of squatter and informal settlements in Pacific towns and cities’ (2012) 49(4) Australian Planner.

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be overlooked, nor the health of vulnerable individuals in Australia’s immigra-tion detention facilities on Nauru.17

3 The Right to Health and Why it Matters

The right of everyone to enjoy the highest attainable standard of physical and mental health (right to health) was introduced in the World Health Organiza-tion’s Constitution’s preamble, and thereafter in the Universal Declaration of Human Rights 1948. Its articulation in Article 12 of the International Covenant on Economic, Social, and Cultural Rights 1966 (cescr) ensured the right to health amounts to a binding legal provision in countries that have ratified the cescr and other formative un documents that also specify this right. These include: Convention on the Elimination of All Forms of Racial Discrimination 1965 (cerd), Convention on the Elimination of All Forms of Discrimination against Women 1979 (cedaw), Convention on the Rights of the Child 1989 (crc), and Convention on the Rights of Persons with Disabilities 2006 (crpd). All countries have ratified one or more binding treaties that include the right to health.18

In 2000, in releasing its General Comment No. 14, the un Committee on Eco-nomic, Social, and Cultural Rights acknowledged the right to health (Article 12 cescr) meant access to timely and appropriate health care, as well as access to the underlying determinants of health (Figure 219). The Committee clarified

17 Ian Anderson and others, ‘Indigenous health in Australia, New Zealand, and the Pacific’ (2006) 367(9524) The Lancet 1775; Margaret Jolly, ‘Engendering Violence in Papua New Guinea: Persons, Power and Perilous Transformations’ in Margaret Jolly, C Stewart and C Brewer (eds), Engendering Violence in Papua New Guinea (anu Press 2012); John Reid and others, ‘Towards a Social-Structural Model for Understanding Current Disparities in Maori Health and Well-Being’ (2014) 19(6) Journal of Loss and Trauma 514; Peter Cramp-ton and Bridget Robson, ‘Ongoing leadership and effort needed to keep the focus on improving Maori health’ (2014) 127(1393) New Zealand Medical Journal; Jules Morgan, ‘Indigenous Australians and the struggle for health equality’ (2015) 3(3) The Lancet Respiratory Medicine 188; Chris McCall, ‘Doctors silenced over Australia’s immigration centres’ (2015) 386(10007) The Lancet 1932; Kalinda Griffiths and others, ‘How colonisa-tion determines social justice and Indigenous health – a review of the literature’ (2016) 33(9) Journal of Population Research 1.

18 Gunilla Backman and others, ‘Health Systems And The Right To Health: An Assessment Of 194 Countries’ (2008) 372(9655) The Lancet 2047.

19 ‘The right to health factsheet’ (World Health Organization, 2015) <www.who.int/ mediacentre/factsheets/fs323/en/> accessed 8 October 2015.

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the meaning of state party ‘core obligations’ (defining minimum levels of es-sential health care), and outlined how governments could ‘progressively real-ize’ this right for all citizens, especially those most vulnerable. Significantly, as part of a country’s ‘core obligations’, the Committee was unequivocal that this right’s achievement depended on shared responsibility among developed and developing states and other actors for implementation.

Since 2000, the right to health has gained traction on the global stage, il-lustrated by right to health litigation,20 appointment of a un Special Rappor-teur, and in 2013, by the unprecedented number of references to this right by health ministers attending the World Health Assembly. In addition to grow-ing calls for the introduction of a Framework Convention on Global Health underscored by the right to health,21 global health commentators have called for a new imagining of global health founded on ‘a shared commitment to realisation of health as a human right based on recognition of our common

20 Benjamin Mason Meier and Alicia Ely Yamin, ‘Right To Health Litigation And hiv/aids Policy’ (2011) 39 The Journal of Law, Medicine & Ethics 81.

21 Lawrence O Gostin and Eric A Friedman, ‘Towards a Framework Convention on Global Health: a transformative agenda for global health justice’ (2013) 13 Yale Journal of Health Policy, Law, and Ethics 1; Gorik Ooms and others, ‘Great expectations for the World Health Organization: A Framework Convention on Global Health to achieve universal health coverage’ (2014) 128(2) Public Health 173; Eric A Friedman, ‘An independent review and accountability mechanism for the Sustainable Development Goals: The possibilities of a Framework Convention on Global Health’ (2016) 8(1) Health and Human Rights 129.

Figure 2 The right to health (General comment 14)

“The right to health”

Underlying determinants Health-care

AAAQAvailability, Accessibility, Acceptability, Quality

Water, sanitation, food, nutrition,housing, helthy occupational andenvironmental conditions, education,information, etc.

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humanity’.22 In negotiations surrounding the formation of the post-2015 health and sdg agenda, advocates pressed for this right to expressly underpin the new global health goal.23

The right to health’s content can be utilised to progress a country’s rights obligations in various ways: to facilitate implementation of Universal Health Coverage and healthcare that is available, accessible, acceptable, and of quality for all (per sdg 3, Target 8 and General Comment No. 14); to sup-port the development of health metrics (and corresponding data collection mechanisms – especially to align with in-country sdg commitments); to un-derlie the importance of states’ reporting on disaggregated health data; to assist states’ development of policy to equitably improve the health of disadvantaged groups (pending country-context, and also in line with sdg commitments); and to underscore health monitoring and evaluation efforts. Cumulatively, such measures can act as process indicators and outcome indicators of a state’s ‘progressive realization’ toward achieving the right to health.24

However, pursuit of right to health process and outcome indicators only ef-fectively occurs in countries where right to health structural indicators clearly exist. In human rights terms, ‘structural indicators’ capture the structural ele-ments – laws, policies and regulations – critical to framing health system func-tioning.25 Structural indicators are among the simplest indicators, dependent on accessible information and usually framed to generate a yes or no answer. If the right to health is not explicit in domestic law, providing legislative founda-tion, it is then difficult for governments to anchor and progress equity-driven national health policy and planning efforts; a key pursuit of sdg 3. Also, with-out right to health structural indicators it is equally difficult for citizens to hold their governments to account for sdg 3 commitments. Consequently, a base-line understanding of the right to health in the Pacific region is so important.

22 Julio Frenk, Octavio Gómez-Dantés and Suerie Moon, ‘From Sovereignty To Solidarity: A Renewed Concept Of Global Health For An Era Of Complex Interdependence’ (2014) 383(9911) The Lancet 94.

23 Lawrence O Gostin, ‘A framework convention on global health: Health for all, justice for all’ (2012) 307(19) jama 2087; Gorik Ooms and others, ‘Universal Health Coverage Anchored In The Right To Health’ (2013) 91(1) Bulletin of the World Health Organization 1.

24 ‘Right of everyone to enjoy the highest attainable standard of physical and mental health’ (United Nations 58th session of the General Assembly, 2003).

25 Sofia Gruskin and Laura Ferguson, ‘Using Indicators To Determine The Contribution Of Human Rights To Public Health Efforts’ (2009) 87(9) Bulletin of the World Health Organi-zation 645.

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4 Methods

At sdg onset, this timely study seeks to establish a right to health baseline in the pif’s 16-member countries via two means: systematic review of the litera-ture and by reviewing laws and policy on the right to health – the ‘structural indicators’ (Figure 326) – to develop a Pacific Right to Health Scorecard. Here we acknowledge Backman et al.’s 2008 large-scale study (that included some pics) assessing the extent countries’ health systems included right to health

26 ‘The United Nations Human Rights Treaty System: An introduction to the core human rights treaties and the treaty bodies’ (ohchr, 2005) <www.ohchr.org/Documents/ Publications/FactSheet30en.pdf> accessed 8 October 2015.

Figure 3 Core human rights treaties with a focus on the right to healthModified from factsheet number 30 (ohchr, 2002)

CESCR1966

CERD1965

CEDAW1979

CRC1989

CRPD2006

UniversalDeclarationof HumanRights

Reports Reports

ReportsReports

Reports

Committeeon EconomicSocial andCulturalRights

Committeeon theEliminationof RacialDiscrimination

Committeeon theElimination ofDiscriminationagainst Women

Committeeon theRights ofthe Child

CommitteeonDisability

Individualcomplaintsunder art 14

Individualcomplaints &Enquiries

International Bill of Human Rights

CP CPAC

CPCPBC

ECOSOC

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features.27 However, Backman and colleagues did not investigate whether the countries of focus were meeting their right to health reporting obliga-tions to the un committees (established to monitor the treaties in question (Figures 428), nor elaborate on their Pacific findings. Thus unlike Backman et al., this study examines pic treaty ratification more closely.

4.1 Literature ReviewThe right to health was examined in each of the study’s 16 countries. Six multi-disciplinary databases were utilised (PubMed, Web of Science, Scopus,

27 Gunilla Backman and others, ‘Health Systems And The Right To Health: An Assessment Of 194 Countries’ (2008) 372(9655) The Lancet 2047.

28 ohchr (n 26).

4. Constructivedialogue between

Committee andState party

delegation duringsession

3. State party maysubmit writtenreplies to list of

issues andquestions

Key:nhri: National HumanRights Institution

ngo: Non-GovemmentOrganisation

The cycle begins one to twoyears after entry into force of thetreaty (two years for cescr,crc and crpd) and repeatsaccording to the followingperiodicity: every two years forcerd, every four years forcedaw and crpd and everyfive years for cescr and crc

1. State partySubmits its report

6. Procedures tofollow up on

implementation oftreaty body

recommendations

5. Treaty bodyissues its

concludingobservations on

the report,including

recommendations

2. Treaty bodypresents State

party with list ofissues and

questions based onconcerns reised by

the report Opportunity for input

from un system,

nhris & ngos

Opportunity for input

from un system,

nhris & ngos

Opportunity for input

from un system,

nhris & ngos

Figure 4 The reporting cycle for human rights treatiesSource: Modified from factsheet 30 (2005)

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Westlaw International, Lexis, agis). Search terms included ‘human right to health’, ‘right to health’, ‘health rights and/or right’ in combination with each of the 16 countries, and with ‘Pacific’ and ‘Association of South-East Asian Coun-tries’ (or asean) to facilitate a wider search strategy. An additional grey litera-ture search was conducted utilising websites from key regional multilateral and bilateral agencies. The included literature was subject to thematic analysis.29 The review was undertaken in 2013 following prisma guidelines (Figure 530).

4.2 Compiling a Right to Health ScorecardSix (incremental) methods of inquiry (amounting to Scorecard indicators) were employed to meet this study’s second objective. We investigated whether:

1. pif countries ratified the five international treaties containing a right to health provision; adoption of Additional Treaty Protocols was noted.

2. pif countries provided an initial report to the relevant un treaty oversee-ing committee; whether reports for this and subsequent reporting cycles were lodged in a timely manner (less than 12 months).

3. pif un-reports reported on country measures to respect, protect and ful-fil the right to health.

4. pif country Constitution’s incorporated the right to health.5. pif country National Health Plans included right to health language/

obligations.6. pif countries had a national human rights institute.

Documents obtained from the ohchr online treaty depository, the paclii law database, Google and Google Scholar searches facilitated our investiga-tion. Findings were assembled into a Pacific Right to Health Scorecard, allow-ing a right to health ranking for each country (Table 1). The maximum score was 18 points with points allocated according to research team criteria.

Inquiry iii was subject to a content analysis, which included search terms ‘health’, ‘right to health’, ‘health rights’ and ‘rights’. Where a country had ratified the cescr, an additional search was made for ‘Article 12 (cescr)’ and ‘General Comment 14’. Word frequency for the search terms was recorded (and points allotted). For Inquiry iv, a word frequency count for ‘right to health’ or ‘health rights’ was applied to pic constitutions (and points allotted). A similar process was applied to Inquiry v.

29 Virginia Braun and Victoria Clarke, ‘Using Thematic Analysis in Psychology’ (2006) 3(2) Qualitative Research in Psychology 77.

30 ‘Preferred Reporting Items for Systematic Reviews and Meta-Analyses’ (prisma) <www .prisma-statement.org/> accessed 8 October 2015.

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5 Findings

5.1 Literature ReviewWe were unable to identify an alternate literature review on the right to health in the Pacific. Most of the 66 eligible documents subjected to in-depth analysis (publication dates spanning 1997 to 2013) related to right to health literature in the context of Australia and New Zealand (58 and 22 per cent respectively), the Pacific (17 per cent), and asean (5 per cent). A noteworthy finding was

Records identified from PubMedScopus and Web of Life

databases

Records removed becauseof duplication

Records excluded based on tiltesand abstracts

Records retained for fulltext review

Records remaining afterquality analysis

Studies included inqualitative synthesis

Full-text articles excludedwith reasons

Records identified fromWestlaw International, Lexis

and agis databases

Additional records identifiedthrough other sources and

added manuallyn = 145

(n = 81 + 54 = 135)

n = 60 + 9 = 69 (–3) = 66

n = 29 + 31 = 60

n = 27 + 28 = 55

n = 56 + 59 = 115

n = 8 + 17 = 25

n = 130 n =9

ScreeningEligibility

IncludedIdentification

Figure 5 Flow chart describing selection of records for a systematic review (identification, screening, eligibility and included records)Adapted from prisma

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270

Tabl

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tiona

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pos

sibl

e sc

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18

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the paucity of literature for smaller pics, with most pertaining to Papua New Guinea.

Thematic analysis of the included literature identified 14 focus areas, thus right to health language is applied to an array of topics in the Pacific (Figure 6). Disparate themes demonstrate broad scholastic interest around health rights. Twenty-three per cent of literature thematically related to indigenous popula-tions’ right to health, with the bulk concerning Australia’s indigenous commu-nities. Some grey literature, mainly comprising multilateral regional reports, briefly mentioned the right to health; but the reports’ authors did not expand or apply this human right extensively to the Pacific/public health issue or con-text. This correlated with our findings around the right to health’s application within the peer-reviewed literature, in which application of this right to the issue at hand was often all-too cursory. Rather, authors frequently utilised ‘the right to health’ as a phrase for advocacy purposes (especially for marginalised groups).

5.2 Pacific Right to Health ScorecardKey scorecard findings are presented in Table 2, and summarised in Figure 7. The mean score for the Pacific was only 6.4 out of 18: all Micronesian coun-tries scored below this. New Zealand and Australia were top-ranked. However, their respective scores demonstrate a lack of deep engagement with the right to health.

Word frequency of ‘right to health’ and ‘health rights’ accounted for less than 0.5 per cent of total hits (0.1 and 0.4 per cent respectively) in state reports (Figure 8). The right to health was signalled only nine times and by four

2320

1712

6

4.54.5

33

1.51.51.51.51.5

0 5 10 15 20 25Indigenous people

People with disabilityInternational treaties/Constitutions/Legislation

Sexual & Reproductive HealthAsylum SeekersClimate change

Workforcetrips and Drug availability

DevelopmentEducation

Community EmpowermentTobacco legislationCost of Health care

Emerging disease

Figure 6 Percentage of papers in key themes from a 2014 literature review using right to health-related search terms for Pacific Forum countries

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272

Tabl

e 2

Righ

t to

heal

th sc

orin

g al

loca

tion

and

rank

ing

for F

orum

coun

trie

s

Coun

try

Sub

grou

pIn

tern

atio

nal t

reat

ies r

atifi

edTi

mel

ines

sCo

nstit

utio

n ha

s rth

prov

isio

n

Nat

iona

l H

uman

Ri

ghts

In

stitu

tion

Stra

tegi

c H

ealth

Pl

an w

ith

rth

sco

rera

nk

cesc

rce

rdce

daw

crc

crpd

Op.

Pro

t.In

itial

re

port

st

atus

Del

ay

mon

ths

18

Aust

ralia

1Y

2Y

1Y

1Y

1Y

1Y

1nm

126

.91

N0

Y2

N0

112

New

Zea

land

1Y

2Y

1Y

1Y

1Y

1Y

1nm

120

.72

N0

Y2

N0

121

Fiji

2N

0Y

1Y

1Y

1N

0Y

1nm

125

1ye

2N

0N

08

3Pa

pua

New

G

uine

a2

Y2

Y1

Y1

Y1

Y1

N0

M0

130.

60

yi1

N0

N0

74

Solo

mon

Is

land

s2

Y2

Y1

Y1

Y1

N0

Y1

nm1

73.9

0yd

1N

0N

08

3

Vanu

atu

2N

0N

0Y

1Y

1Y

1Y

1nm

141

.31

N0

N0

N0

65

Fede

rate

d

Stat

es o

f M

icro

nesi

a

3N

0N

0Y

1Y

1N

0Y

1M

040

40

ye2

N0

N0

56

Kirib

ati

3N

0N

0Y

1Y

1Y

1N

0M

028

7.7

0N

0N

0N

03

8M

arsh

all

Isla

nds

3N

0N

0Y

1Y

1N

0N

0M

059

1ye

2N

0N

05

6

Nau

ru3

N0

N0

Y1

Y1

Y1

Y1

M0

112

0N

0N

0N

04

7Pa

lau

3N

0N

0N

0Y

1Y

1Y

1nm

187

.50

yi1

N0

N0

56

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Cook

Isla

nds

4N

0N

0Y

1Y

1Y

1Y

1nm

184

.50

N0

N0

Y2

74

Niu

e4

N0

N0

N0

Y1

N0

N0

nm1

156

0yi

1N

0N

03

8Sa

moa

4N

0N

0Y

1Y

1N

0N

0nm

140

.81

N0

Y2

Y2

83

Tong

a4

N0

N0

N0

Y1

N0

N0

M0

117

0N

0N

0N

01

9Tu

valu

4N

0N

0Y

1Y

1Y

1N

0M

010

80

N0

N0

N0

38

Y: Y

es; N

: No;

yi:

rth

impl

ied;

ye:

rth

exp

licit;

yd

: Dra

ft co

nstit

utio

n; n

m: N

one

mis

sing

; M: M

issi

ng

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274

countries (New Zealand, Fiji, the Solomon Islands, Cook Islands). Health rights were signalled only three times and by two countries (New Zealand and Fiji). Of the six pif countries that have ratified the cescr, the cornerstone treaty for the right to health, only New Zealand’s report refers to Article 12 cescr.

Four countries (Australia, New Zealand, Papua New Guinea, Cook Islands) have ratified all five treaties. The crc is the only treaty universally ratified by

Australia

New Zealand Fiji

Papua New Guinea

Solomon Islands

Vanuatu

Federated States of M

icronesia

Kiribati

Marshall I

slands

NauruPalau

Cook Islands

NiueSamoa

Tonga

Tuvalu

181614121086420

SCO

REmaximum score

Mean

PolynesiaMelanesiaMicronesiaDonor country

Figure 7 Right to Health scores for Forum countries

State reports

Health Right tohealth

HealthRights

Equity Rights Generalarticle 12

Generalcomment

14

Search terms

500045004000350030002500200015001000500

0

Tota

l hits

0.1% 0.4% 2%

35%

63%

0% 0%

Figure 8 Total numbers of hits for key search terms – State reports for the most recently completed reporting cycles

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all 16 pif countries. With the exception of Tonga, all other countries have rati-fied the cedaw. The cescr has been ratified by only six nations.

Australia and New Zealand have completed more reporting cycles than the other pics. However, both had difficulties reporting in a timely manner with delays of 5 to 71 months for Australia (mean 26.9 months) and from 2 to 73 months for New Zealand (mean 20.7 months). Conversely, the other pics have only completed one or two treaty reporting cycles. Many have missing reports and there are several instances where governments failed to provide even the initial country report.

6 Discussion and Conclusion

Findings from the scorecard matrix triangulate literature review findings: the right to health is at the fringes of scholarly, political and legal engagement in this region. This study highlights that Pacific country’s ratification of un trea-ties, and such government’s obligation under the Vienna Convention on the Law of Treaties to translate international human rights obligations into do-mestic law and policy, is piecemeal and ad hoc at best. While it has been as-serted that the right to health’s content is now sufficiently well-understood to be applied in an operational, systematic, and sustained manner,31 our findings indicate this is not the case for the Pacific. For example, these findings contrast markedly to the Latin American region where a constitutional study on the right to health occurred in 1989.32

We also concur that pics have a low-level of engagement with internation-al human rights treaties,33 illustrated through poor compliance with treaty reporting commitments. Qualitative investigation is recommended; is this because international laws are not perceived to have a place in Pacific cul-ture?, We query whether the magnitude of compiling treaty-reports presents too great a hurdle for Pacific government’s limited technical and institutional capacity. Alternatively, perhaps an appropriate human rights measuring and

31 Paul Hunt and Gunilla Backman, ‘Health Systems And The Right To The Highest Attainable Standard Of Health’ (2008) 10(1) Health and Human Rights 81.

32 H Fuenzalida-Puelma H and S Connor S (eds), The Right to Health in the Americas. A Comparative Constitutional Study (Pan American Health Organisation, 1989).

33 Natalie Baird, ‘To ratify or not to ratify? An assessment of the case for ratification of international human rights treaties in the Pacific’ (2011) 12 Melb J Int Law 1.

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assessment tool that is ‘practical, coherent, and context specific’, such as the scientifically-tested EquiFrame,34 is necessary. However, this would need to be collaboratively developed and trialled by Pacific people and their governments to streamline and facilitate accountability and reporting. Such a tool could also progress Pacific country’s sdg 3 reporting and compliance commitments.

This study has a number of limitations. Although our literature review examined peer-reviewed literature from multidisciplinary databases as well as the grey literature, literature from books was not considered. This study’s focus on literature within journal publications reflects a public health method-ological approach rather than a legal methodological approach. Unlike public health academics, law academics receive institutional credit when publishing in book format; thus our public health research team may have overlooked rel-evant literature from legally-oriented texts. Furthermore, case law on the right to health and the Pacific was not examined, which might have assisted data triangulation. Indeed, it is highly probable there is limited right to health case law for the Pacific region as well given Australia’s prominence in the region and its lack of a federal human rights act and a subsequent, substantial and consolidated body of right to health litigation.

Rigorous investigation into all-relevant domestic legislation was beyond the scope of this study. However, structural rights indicators do have their limita-tions. For example, if a yes box is ticked in terms of a Pacific country consti-tutionalising the right to health, the important downward transference of this right from international law into domestic law cannot guarantee the right to health will be actualised in national health policy (and resource allocation). As this study demonstrates, right to health laws may exist but they might not even be reported (or adequately reported) upward by government to the in-ternational community, or even disseminated and discussed in-country with the concerned local populations and relevant ngos. Consequently, the de jure (written) law does not always translate into benefitting the de facto reality, the human lives, at its core. Moreover, from a state reporting and accountability perspective, ‘The usefulness of structural indicators is enhanced if they are employed with process and outcome indicators.’35 However, it is difficult to as-sess the usefulness of structural indicators if there is no baseline understand-ing of what currently exists.

34 M Amin and others, ‘EquiFrame: A framework for analysis of the inclusion of human rights and vulnerable groups in health policies’ (2011) 13(2) Health Human Rights 1.

35 ‘Right of everyone to enjoy the highest attainable standard of physical and mental health’ (United Nations 58th session of the General Assembly, 2003).

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Yet we argue the Pacific’s major economic and development partner, the Australian government, is unhelpful in advancing the human right to health in its explicit form (beyond its minimal baseline status) in the Pacific region. Here, we give two reasons, which are inter-related. First, the Australian govern-ment is pursuing the development policy of ‘health as a regional public good’ in the Pacific, opposed to promoting health and development as a matter of human rights.36 It follows that further investigation between the intersection (if there is one) of health as a regional public good and the human right to health in the Pacific context – and its potential ramification for sdg 3 achieve-ment – is required. Given the impetus on disease elimination under the ‘health as a regional public good’ policy, overlap with the right to health’s holistic el-emental content as set out in General Comment No. 14 is unlikely.

Second, Australia’s aversion to expressly integrate health and human rights into its regional development policy is unsurprising because unlike most West-ern liberal democracies, it is a nation without a federal Human Rights Act or Bill of Rights. Therefore, it is hardly likely the Australian Government would draw focus to the elements of the human right to health in its development policy and planning initiatives when it side-steps or disassociates the same with respect to the framing of its health policies and planning for its own Aus-tralian peoples.

Finally, while ‘Legal recognition is just one of the first steps on a long and difficult journey to realising the right to health’,37 it is a pivotal start if there is to be equitable implementation of the sdg health agenda for the Pacific’s heterogeneous and often overlooked peoples.

36 ‘Health for Development Strategy 2015–2020’ (Australian Government, Department of Foreign Affairs and Trade, June 2015) <http://dfat.gov.au/about-us/publications/Pages/health-for-development-strategy-2015-2020.aspx> accessed 6 October 2016; ‘Australia’s International Development Assistance Program 2013–14’ (Australian Government, Department of Foreign Affairs and Trade, May 2013) <http://dfat.gov.au/about-us/publications/aid/australias-international-development-assistance-program-2013-14/Documents/budget-2013-14-blue-book.pdf> accessed 6 October 2016; ‘Aid Program Per-formance Report 2012–13 Pacific Regional’ (Australian Government, Department of For-eign Affairs and Trade) <https://dfat.gov.au/about-us/publications/Documents/pacific -regional-appr-2012-13.pdf> accessed 6 October 2016; Farley Cleghorn and Catherine Barker, ‘The case for regional public goods in the Pacific’ (Dev Policy Blog, 4 March 2014) <http://devpolicy.org/the-case-for-regional-public-health-goods-in-the-pacific -04032014/> accessed 1 May 2016.

37 John Harrington and Maria Stuttaford (eds), Global Health and Human Rights: Legal and Philosophical Perspectives (Routledge Research in Human Rights Law 2010).