best practice VOL 2 NO 3
Reusable Grocery Bags and Health Risks The New World Order Government’s Proper Role Health as a Human Right
A Public Policy Journal for Hong Kong
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BEST PRACTICE VOL 2 NO 3
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From the Editor
3 Contributors On Policy 4 Reusable Grocery Bags and Health Risks Lion Rock uncovers the results of incentive structure
changes on our health and environment
On Philosophy 17 Health as a Human Right Jacob Mchangama reveals that “the right to health”
is the wrong prescription – there is no evidence that it has improved healthcare anywhere in the world and in some cases it has undermined it
Leader’s Bookshelf
12 The New World Order James Lawson scrutinizes Romano Prodi’s insights on the China, US and EU relationship
28 What Makes an Entrepreneur Successful? The Extra One Per Cent: How small changes make
15 Government’s Proper Role Andrew Brandler discusses Hong Kong’s balance of
Odds and Ends
“Big Market, Small Government”
exceptional people. Reviewed by James Lawson
30 Mr. Li’s off the hook Leung Yan Ke debunks the urban legend connecting
Hong Kong’s tycoon to signal 8 typhoons
EDITOR Nicole Idanna Alpert
ADVERTISING INQUIRES Best.Practice@LionRockInstitute.org
DESIGN & PRODUCTION Anita Chong
Best Practice Advisory Board James A. Dorn, Alec Van Gelder, Philip Stevens, Tom Palmer, Reuven Brenner, Gary Shiu, Richard Wong, Francis Lui, Shih Wing Ching, Donald J. Boudreaux
COVER ARTIST Bay Leung Best Practice is published quarterly by The Lion Rock Institute to encourage discussion of policy and current issues. Topics and authors are selected to represent a multitude of different views, and those opinions expressed within Best Practice do not necessarily reflect the views of The Lion Rock Institute. The Lion Rock Institute welcomes reproduction of written material from Best Practice, but editor/author permission must first be sought. EDITORIAL OFFICE Room 1207 Kai Tak Commercial Building 317-319 Des Voeux Road Central, Hong Kong Submissions: Subscriptions: Fax:
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ARTICLE SUBMISSIONS All articles submitted to Best Practice must be exclusive unless permission has been sought. Articles should range between 600 and 4,000 words but may differ if editor’s approval has been received. Please send all articles with a cover letter giving a brief summary of the articles along with the author’s fax number, day and evening telephone number, mailing address, email address and short bio. Please send articles by email to Nicole.Alpert@LionRockInstitute.org Certain images within Best Practice are published under Creative Commons licenses. We endeavor to comply fully with the terms of such licenses to ensure attribution of the author of the relevant image. For more information or details about the authors of particular images, please view our website, www. lionrockinstitute.org, or inquire.
Editor’s Letter B
aby bath products were recently recalled because they contained excessive bacteria, enough to cause infection, but can you imagine if that happened to your reusable bag? The chances of it are just as high, and it’s just as appalling. Best Practice’s cover story put reusable bags under the microscope, and the outcome of the study is frightening – reusable bags have bugs, and a lot of them depending on your personal hygiene. In the cover story, “Reusable Grocery Bags and Health Risks,” The Lion Rock Institute found a number of public health and environmental concerns with the current use of reusable bags. The scheme’s plastic bag use is down, but not plastic being used, with more packaging, bin liner purchases, and no-handle bags. The actual stores that are in the scheme record plastic bag decreases, but not much more than the rate it was decreasing before the tax was implemented due to individual stores’ public policy campaigns and public interest. The Government’s volunteer program was highly successful, with advisors suggesting they stay the course. Still, the tax was pushed forward, and now that we’ll all need to wash our reusable 2
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bags for sanitary purposes, using up more resources, it’s confusing what is truly environmentally friendly. Given the lapse in judgment with the plastic bag tax and the subsequent public health issues, there’s room to doubt the healthcare reform proposals. It is not remarkable that given the cold reception to the last healthcare scheme (a package of reform proposals from the first stage public consultation, “Your Health, Your Life,”) that the Government recently released the second stage consultation on reforms, “My Health, My Choice.” This slogan reminds me of what Danny Williams, a Canadian politician, said when he was asked to justify his decision to avoid his government’s monopoly system and have heart surgery in a Florida hospital instead: “It’s my health, it’s my choice.” He had a choice, unlike his countrymen, because he could afford to escape his system and pay overseas hospital fees. Hong Kong’s healthcare system expects an ageing population and rising medical costs, but the Government’s current proposals seem to eventually limit choice. Limiting lead in toys and lipsticks is a good idea, opening the industry to foreigners so more
healthcare professionals can practice is also a good idea; limiting choice does not help anyone anywhere, especially in healthcare. Our philosophy section explores “Health as a Human Right” and discusses the outstanding legal controversies weaved though the universally accepted notion. Very good points are made about the legality and practicality of the right to health, noting that there are massive potential benefits from competition that can be made in the healthcare sector, and therefore, competition should not be blocked by those who have interests in keeping and promoting health as a human right. Lion Rock has made these arguments before: allowing competition will result in increased user choice – from treatments to doctors – alleviate waiting lines, offload much of the public burden, and of course, allow greater opportunities for innovation to flourish. These are the policies that we look for, and Best Practice will continue to shadow the rest until it finds that which gets us closer to the cure. Let us know what you are thinking. Letters and pieces can be sent to best.practice @lionrockinstitute.org
Contributers The Lion Rock Institute The Lion Rock Institute is Hong Kong’s leading free market think tank. It was established in 2004 by Andrew Work, Andrew Shuen and Simon Lee. Today, the Institute works with Directors, research associates, fellows and scholars to provide better policies to the Hong Kong government. Learn more about Lion Rock at www. lionrockinstitute.org.
James Lawson James Lawson is a second year at the University of Oxford, reading Politics, Philosophy, and Economics. He is President of the Oxford Libertarian Society, Treasurerelect of the Oxford University Conservative Association and an Associate of the Adam Smith Institute.
Jacob Mchangama Jacob Mchangama is the Head of Legal Affairs at CEPOS. His work focuses on the rule of law, civil liberties, human rights, constitutional matters and regulation. In 2007, Jacob worked at the major Danish law firm Plesner, where he was part of the Corporate Finance department, specializing in mergers & acquisitions and private equity. Jacob has been lecturing on International Human Rights and teaching Public International Law at the University of Copenhagen.
Leung Yan Ke Leung Yan Ke 梁妍珂 is a Research Associate with The Lion Rock Institute, Hong Kong’s leading free market think tank. Leung has published in newspapers and media around the region and in Hong Kong.
Andrew Brandler Andrew Brandler joined the CLP Group as the Group Managing Director and Chief Executive Officer in May 2000 and is responsible for overall group performance. Mr. Brandler was an investment banker, specialising in the energy and utility sectors, and was the Head of Asia-Pacific Corporate Finance with Schroders, based in Hong Kong. Mr. Brandler was the Chairman of The Hong Kong General Chamber of Commerce from May 2008 to May 2010.
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Reusable Grocery Bags and Health Risks Lion Rock uncovers the results of incentive structure changes on our health and environment
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mall changes in incentives can yield significant impacts. A fee of only HK0.50¢ for plastic bags has caused supermarket shoppers to begin carrying reusable bags. The reported decline in store purchases indicates that shoppers are disinterested in purchasing goods should they need to pay the
remain largely unstudied. Thus, a closer look into the unintended consequences of relying on reusables is imperative, especially in light of the new plastic bag levy and subsequent focus on reusable bags. The Lion Rock Institute therefore conducted a study which found a number of crucial impacts
It’s unclear whether the “war against plastic bags” has actually been advantageous, for residents or the environment. tax; they won’t make purchases unless they have a free means by which to carry their items. Before the implementation of the levy, usage of shopping bags overwhelmingly decreased due to particular stores’ efforts, and the levy has continued this trend, further decreasing use. However, it’s unclear whether the “war against plastic bags” has actually been advantageous, for reside nts or the environment. While reusables are a common alternative for consumers who wish to go “green,” such alternatives 4
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which affect public safety, change perceptions of environmental friendliness, and identify the myriad of problems that arise from mandates where incentives are intentionally changed. In July 2009, the Government implemented a levy on plastic shopping bags citing environmental reasons. The Government claimed that the policy would reduce plastic bag use and prompt consumers to switch to non-woven “green” reusable bags. In June 2010, the University of Arizona conducted
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a study on the bacterial crosscontamination of shopping bags around the same time similar studies emerged in other locales.1 University of Arizona’s study found that many consumers had never cleaned their reusable shopping bags. The studies, from Canadian and American cities, revealed a large presence of negative bacteria content and intestinal bacteria. In one study, 12% of reusable bags were positive for E Coli, the bacteria which causes food poisoning. The Minnesota Department of Health and the Canadian Federal Department, Health Canada, respectively in 2007 and 2010, advised residents to reuse shopping bags, but also mentioned the potential health risks and advocated sanitary measures when using reusable bags.2 Hong Kong’s advocacy of reusable bags was not coupled with public health messages. Unlike Canada and Minnesota, Hong Kong’s advocacy of reusable bags was not coupled with public health messages. While the Government didn’t discuss with the public any health risks, it is to be assumed that a high probability of bacteria that causes disease is present in our city’s reusable bags, as is the case in the US and Canada. Together, Momentum 107 and The Lion Rock Institute conducted a joint study on reusable shopping bags which had researchers in Kowloon and the New Territories East collect used bags for bacteriological testing3 and surveyed owners using a questionnaire.
The Institute subsequently held a press conference to release the major findings of the research results to major media outlets with the purpose to promote healthier use of the bags,4 with over a dozen news reports from various English and Cantonese media as a result. It’s Lion Rock’s hope that it has raised awareness of the potential health and safety consequences that are associated with reusable bag use, and that now residents are better informed of how to properly use their reusable bags. It is worth noting that nearly 70% of Hong Kong respondents believed that the renewable bag is more hygienic. The general
Notable studies on reusable bags Many studies surfaced on the use of reusable bags, the most recent and notable conducted from 2009 and 2010. One such study is from June 2010, conducted by the University of Arizona, which investigated the potential for reusable bags to cross contaminate foods carried in them. Reusable bags were collected at random from consumers in Los Angeles, San Francisco and Tucson as they entered grocery stores in California and Arizona. In interviews conducted with random consumers, it was discovered that very few of them
The test showed that, in general, the reusable bags had become active microbial habitats and a breeding ground for yeast and mold. public’s belief that reusable shopping bags are cleaner reflects an underestimated change in perceptions due to the Government’s promotion and the economic incentives at work with plastic bags. As renewable bags pose a potential health risk, the Government did not inform the public of the importance of personal hygiene issues that pertain to using them. It is important to note other studies’ results pertaining to reusable bags (which Lion Rock’s results closely mirrored) as a background.
washed their reusable bags, and many of them never washed them at all. Additionally, few people separated their vegetables and raw meat, and most produce was transported in the back of peoples’ cars. The scientists found very large numbers of bacteria in the used reusable bags. Greater numbers of bacteria were found in California as opposed to Arizona, which the scientists believed may be due to the drier climate in the latter. A wide variety of coliform bacteria were detected. E. coli, which indicates the presence of fecal BEST PRACTICE
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matter, was detected in 12% of the bags tested. The test also found that bacteria in bags with meat juices grew exponentially within a two hour period of storage. The number of bacteria increased 10fold within this time period when the storage temperature was 47 degrees Celsius (i.e., imitating the conditions within a car trunk). LRI also took note of a 2009 microbiological study undertaken by the Environment and Plastics Industry Council (EPIC) in Canada.5 This study collected
recently been introduced. Only 20% of the bags had been in use more than 1 year. Despite this, the test showed that, in general, the reusable bags had become active microbial habitats and a breeding ground for yeast and mold; 64% of the used reusable bags showed a presence of some level of bacterial contamination. Close to 30% of the bags had elevated bacterial counts, higher than that considered safe for drinking water. An unacceptable total coliform count was found in 12.5 percent bags, indicating the presence of intestinal bacteria. The one bag that yielded a very high total bacteria count was the only bag that had been used for longer than 2 years. These studies, as well as the inception of a plastic bag levy in Hong Kong that caused an evergrowing number of consumers to switch to reusable bags, prompted The Lion Rock Institute to conduct an exploratory investigation into the matter. It was not the Institute’s intention to
Most of the public believes the renewable bags are more hygienic. reusable bags through street exchanges in the city of Toronto. In questionnaires, almost all of the bag owners confirmed that their bags had never been washed. These bags were generally not as old as the bags tested in the University of Arizona report, as the practice of using reusable bags had only 6
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replicate the tests undertaken in the aforementioned studies, but rather merely ascertain whether harmful bacteria exists in the reusable bags in Hong Kong. Lion Rock’s findings recommend that further study into the matter is warranted, as noted on the back of the study.
The nuts and bolts of the experiment Procedures LRI prepared a list of questions, as illustrated below, for the purposes of the test and to gauge current practices and beliefs about using reusable and plastic bags. Field workers took up prominent positions at target sites (e.g., school) and by random selection, gave shopping certificates to those who answered the below questionnaire and exchanged bags with a new reusable bag (to replace the one which was collected for testing). The questionnaire (Original in Chinese) a How long has this bag been used? b When the last time this bag was washed? If never go to Question d. c How often is this bag washed? d Would you place raw or cooked food, clothing, toys, fruits and magazines in one bag? Would you separate the items or put them all in the same bag? e How many reusable bags are owned at home? f Have you had an experience of owning too many reusable bags and discarding some of them? g Which do you think is more hygienic?
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Treatment of the samples LRI employed traditional means for preparing the collected samples for testing, using ziploc bags for each individual bag sample, cutting out a portion (5cm x 5cm) from the bottom seam of each sample, categorizing and pooling the data according to the questionnaires. The samples were transported to a local lab, Intertek, in due course, and tested. All of the above procedures were conducted under room temperature in daylight, over the course of a few days. In preparing all the materials, the preparation staff used and wore safety equipment, such as masks and gloves, and kept windows closed to avoid any contamination of the samples. The samples were then counted, and the data organized. Five control groups were used to compare the results. The highlights of the results are as follows:
is more hygienic, 0.4% believe both are equal and 1.0% did not respond. As such, most of the public believes the renewable bags are more hygienic. Age of bag Of all respondents, 1.0% were using the bag for the first time, 10.9% had used it for less than a week, 17.8% of respondents had used it for less than a month, 16.8% had used it for 1 to 3 months, 13.9% had used it for 3 to 6 months, and 39.6% had used the bag for over 6 months. More than half of the respondents had used their bags for over 3 months. Date since last washed Out of all respondents, 27.2% had never washed their bag, 38.1% had last washed it in less than a week, 20.8% of respondents had last
washed it in under a month, 3.5% had last washed it in 1-3 months, while no respondents had last washed it in 3-6 months and 2.0% of respondents had last washed it in more than 6 months. Out of all respondents, 29.2% had either never washed the bag, or had not washed the bag for 3 months or more. Frequency of wash Out of all respondents, 24.8% had never washed the bag, 32.2% had washed it once every week, 21.3% of respondents had washed it once every month, 9.9% had washed it once every 1-3 months, 1.0% of respondents had washed it once every 3-6 months, and 1.0% had washed it once every 6 months or more. In total, 26.7% of respondents had either never washed the bag, or only washed it once every 3 months or more.
Questionnaire results From the data collected, the general opinions of the public on renewable bags, as well as their habits, can be analyzed. Based on the data, public perceptions of the two types of bags, reusable and plastic, differ. All percentages were rounded to 1 decimal place. Hygiene Of all respondents, 29.2% believe the plastic bag is more hygienic, 69.3% believe the renewable bag BEST PRACTICE
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Potential for cross contamination Out of all respondents, 67.3% would place raw or cooked food, clothing, toys, fruits and magazines in a separate reusable bag, while 31.7% of respondents would place them in the same bag. The ratio of those who separate items to those who do not is approximately 2:1. Number of bags owned per person Out of all respondents, 34.2% had reported they owned less than 10 reusable bags, 46.5% responded that they owned 10 to 20 bags, and 17.8% of respondents had reported they owned more than 20 reusable bags. Most people surveyed owned between 10 and 20 reusable bags. Potential errors Of the 201 surveys and bags collected, following the logging of the questionnaire and bag data, two sample bags were misplaced. Only one of the two lost samples belonged to a category that was
to be tested for contamination. Eight percent (8%) of participants were recorded as DNF (Did Not Finish). This means that eight percent of participants failed to answer all of the proposed questions within their questionnaire. The greatest number of skipped questions pertained to the date since last washed and the frequency of the wash, questions b and c in the Questionnaire. In addition, the survey and questionnaire may have been worded or conducted in a way which indicated a bias towards cleanliness of reusable bags, and therefore, some of the respondents may have purposefully answered incorrectly due to embarrassment or peer pressure. As a comparison, Professor Gerba’s study from the University of Arizona found that 97 percent of participants were blissfully unaware of the potential health consequences of reusable bag use as a comparison.
Lab results The test results rendered from experts employed at a local laboratory, Intertek, confirmed that Hong Kong is no exception. Reusable shopping bags harbor dangerous, or even deadly, bacteria, which exist locally. The bag samples returned from the laboratory were collected from school sites and corresponded to three time-frames: those participants who stated they had (1)
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washed their reusable bag within the last week, (2) washed it within the last month, and (3) not washed it for more than six months. Our lab tests confirmed that salmonella was found in the sample category obtained from “schools.” As such, 1/3 of the tested school categories were found to be contaminated with potentially lifethreatening bacteria.
Analysis Bags containing salmonella and other bacteria The results from the school samples indicated incidences of salmonella.6 In the absence of proper handling of reusable shopping bags, diseases lurk and pose serious health risks to consumers. To note, while the findings from the “schools” sample corroborated with the tests undertaken in the Gerba Williams Sinclair test at the University of Arizona, and the Environment and Plastics Industry Council in Canada (EPIC), LRI was shocked to learn that salmonella was found in their own test samples. The test the Institute performed did not employ as highly technical methodology as the studies previously mentioned, and although most likely present in the bags, it was believed that more serious forms of bacteria would not be detected with the methodology Lion Rock employed in the study. The fact that salmonella was present, living in
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children’s school bags nonetheless, gave rise to grave concerns. Lion Rock did not proceed with the same methodology as the other studies mentioned, but nonetheless, the results of the other tests are important to note. The University of Arizona report found that half of the bags tested were contaminated with coliform bacteria, including E. coli and salmonella. Crucially, these scientists determined that the bacteria levels found in the reusable bags were significant enough to cause death. Charles Gerba, a UA professor of soil, water and environmental science and co-author of the study, commented that “[the bacterium found] are a particular danger for young children, who are especially vulnerable to food-borne illnesses.” In light of salmonella found in the samples collected outside schools, there is an urgent need to address the unintended health consequences of reusable bag use. Lion Rock’s results In examining this data, it should be noted that the findings of The Lion Rock Institute are likely to be underestimated. In this particular study, The Lion Rock Institute’s objective was not
to precisely measure the exact presence of bacteria, but merely to determine if bacteria did in fact exist in our test samples. Lion Rock study samples, for instance, remained in re-sealable bags for up to four days, which is far longer than the normal testing time. The University of Arizona tested their bags within approximately 8-10 hours and kept them in an ice chest or refrigerator until they were processed. Lion Rock’s study tested the bags 4 days after collection and stored them in a dry atmosphere with light in which bacteria dies. Because of the imprecise methodology employed by Lion Rock, we believe the findings likely underestimate the presence of harmful bacteria in reusable shopping bags. E. coli and other dangerous bacteria, when not in the presence of a food source, are only able to survive outside of the
professional organization will find a far higher incidence of bag contamination. When one considers the cultural and atmospheric differences in Hong Kong, the need to investigate this matter becomes all the more urgent, as Hong Kong has a humid and high temperature climate. The University of Arizona report found a higher incidence of harmful bacteria in their California sample, which indicates that greater humidity is conducive to the breeding of bacteria. In addition, due to the value placed on eating fresh produce by Hong Kong consumers, shoppers tend to make smaller, but more frequent, shopping visits. As such, it is very likely that food produce, such as raw meat, fish and vegetables, will come into contact with one another on a daily or bi-daily basis. This is likely to increase the rate at which residual bacteria multiply in the
In light of salmonella found in the samples collected outside schools, there is an urgent need to address the unintended health consequences of reusable bag use. human body for between 8-24 hours. Due to the aforementioned imprecise testing practices, many of the dangerous bacteria will have perished in the Lion Rock bag samples. That we managed to find salmonella in our lab samples, despite our imprecision, leads us to conclude that a fuller scientific investigation undertaken by a
bags due to the continual presence of a food source. It will also increase the probability of bacteria being transported to other areas of the consumers’ household or family. Environmental impact One of the most interesting results was that nearly 70% of Hong Kong BEST PRACTICE
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respondents believed that the renewable bag is more hygienic. The general public’s belief that reusable shopping bags are cleaner reflects an underestimated change in perceptions due to the Government’s promotion and the economic incentives at play with plastic bags. Even though the renewable bags pose a potential health risk, the Government did not inform the public of the importance of personal hygiene issues that pertain to using reusable bags. It seems that both the majority of the public and the Government did not consider the outcome that reusable bags harbor dangerous bacteria. Reusable bags have shown themselves to be a health risk to consumers and alleviation of this risk requires that those using the bags must clean them on a regular basis, or after each use. The University of Arizona report suggests that people need to wash their reusable bags in
The fact that many questions remain unanswered, and that an examination of the health risks were skipped prior to the implementation of the policy, is intolerable. light of health issues, and Lion Rock’s report corroborates with this suggestion. The Institute, however, did not test how often bags must be washed to clear health risks. The issue raises a secondary concern for The Lion Rock Institute in that this will increase the environmental toll of reusable bag use. It is not obvious whether reusable bags, given the need for health and safety, are environmentally friendly. Many questions remain: what are the implications and impact of washing the reusable bags on the environment? How does this contrast with the use of plastic bags or an alternative, given the energy, soap, water, carbon, etc., that must be spent to wash a reusable bag?
Policy recommendations and considerations Hong Kong residents generally have an interest in becoming more environmentally friendly. In light of these reports on reusable bags, however, it is uncertain whether employing reusable bags is truly a sustainable and green policy for residents. It is recommended that in the future, Hong Kong residents not be led in unknown directions 10
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concerning “going green.” Otherwise, efforts are made in vain. The fact that many questions remain unanswered, and that an examination of the health risks were skipped prior to the implementation of the policy, is intolerable. The Department did not suitably examine, test and scrutinize this policy before putting it into practice. The Lion Rock Institute, therefore, recommends that the Environmental Protection Department (EPD) or Health Department (HD), as a matter of urgency, undertake a scientific investigation into this matter using the methodology employed at the University of Arizona. Given the potential risks, the department must investigate the above questions, especially the health and contamination concerns, to quickly provide answers in order to keep Hong Kong people properly informed. In light of the EPA’s plans to expand the scope of the levy on plastic shopping bags, the “Product Eco-responsibility (Plastic Shopping Bags) Bill,” The Lion Rock Institute recommended that the EPA reinvest research efforts and time into their current policy design and find whether any revisions should be
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made. Practical considerations are not currently being considered. A reasonable policy design balances all relevant health risks; a responsible government should take into account public health. It is imperative that a further study be conducted which employs higher-technological and testing capabilities to analyze potential health risks. In addition, in assessing the levy on plastic shopping bags in terms of the overall environmental impact, Lion Rock advises the EPA to consider the following: 1 It is estimated that to create a reusable shopping bag, it takes about forty to eighty bags of the same manufactured plastic materials; in addition, frequent cleaning will greatly shorten the usable life of reusable shopping bags and uses energy, water and cleaning agents in washing. Therefore, research on whether or not a “green” shopping bag, under the principle of hygienic use, is more environmentally friendly is crucial; 2 In addition to calculating the number of plastic shopping bags used, in which the data has not yet been released, understanding the costs of washing reusable bags and the hygienic measures that must be taken, the EPA must consider what type of bag is most environmentally friendly. Lion Rock has observed that in some supermarkets “self-
packaging counters” have been set up for consumers to tape and wrap their goods. This indicates that some consumers do take independent action to practice environmentally friendly measures while balancing their health and safety. The use of these counters indicates that some consumers are aware of the health risks, and know how to protect themselves against these risks. In addition, it is observed that shoppers in the wet market who use reusable bags overwhelmingly place all sundries and goods, dry or fresh alike, in separate plastic bags (fruit or meat plastic bags) before storing them in reusable or larger plastic bags. This method also serves to guard against any health risks that could result from improper practices. Residents generally have an interest in being more environmentally friendly, but want to remain practical and safe as well. In light of these reports on reusable bags, however, it is uncertain whether employing reusable bags is truly a sustainable and safe policy for residents.
Proposals for use of environmentally Friendly bags 1 After using a reusable shopping bag, it should be thoroughly cleaned; cleaning of reusable shopping bags must use appropriate cleaning agents and completely hang dry before use; 2 Should environmentally
friendly shopping bags have carried worn clothing or footwear, the bags must be cleaned thoroughly after use; it is advised that the same shopping bag not contain both food stuffs and either clothing or footwear; 3 Products such as raw fish, meat and eggs, and other food should not be kept in the same reusable shopping bag, as it is suggested to store items separately, even if in small dairy and meat bags, and then pack together in reusable bags; 4 After returning from grocery shopping, food items should be immediately removed from the reusable shopping bag and hands should be washed; 5 Do not come into contact with others, especially elderly or young children, if hands are not thoroughly cleaned after use. Also, it is not advised to use reusable shopping bags for another purpose until they have been cleaned after their initial use. The Lion Rock Institute would like to thank Raymond Ho and his office, Thomas Jessop, Laurence Pak, Judy Shing, Justin Tsang, Lion Rock staff, EPIC and Prof. Gerba of University of Arizona for increasing awareness of the health and environmental implications in using reusable bags. The Lion Rock Institute is Hong Kong’s leading free market think tank. BEST PRACTICE
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The New World Order James Lawson scrutinizes Romano Prodi’s insights on the China, US and EU relationship
to the EU’s aggregate deficit of around 6.4%. The US cannot afford to continue its governmentspending binge indefinitely into the future. However, he argued that the US currently remains the dominant super power in terms of influence in international relations. This is supported by its huge military budget, accounting for 43% of global military spending.1 He noted that the US has been shifting its focus further east; from the EU to China. While President Obama made early diplomatic visits to Beijing, he neglected to mention the EU in his first thirty speeches. For Prodi, this is indicative of how President
Prodi’s comment that we live in “uncertain times” is particularly apt. his vision of future international relations, as well as thoughts on current affairs. Prodi covered three interrelated areas of interest: the US’s problems and focus, the EU’s strengths and weaknesses, and China’s future. He began by comparing the US’s role with that of the EU. There was some pessimism expressed regarding the US’s future, reflecting its 10%+ budget deficit, compared 12
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Obama will proceed in the future. The sheer population of China was suggested as a key factor in its rise as a global power. On this, according to current World Bank data, China’s population far exceeds that of the US and EU combined. However, forecasters predict that by 2050, India will overtake China in population.2 As such, Prodi’s comment that we live in “uncertain times” is particularly apt.
World Economic Forum
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omano Prodi is a center-left politician in little need of introduction. He was twice Prime Minister of Italy (from May 1996 to October 1998 and May 2006 to May 2008). He was also the tenth President of the European Commission (from 1999 to 2004). Earlier in September, he analysed what was dubbed the “New World Order.” This synopsis promised an explanation of the reasons for a trilateral relationship between China, the US and the EU, along with an outline of its scope (what it can and cannot achieve). While Prodi did not keep to this restrictive framework, his wideranging musings encapsulated
Given his past as President of the European Commission, it is not surprising that much of his talk focused on the EU, its world position, and its supposed merits. He took some pleasure in declaring that the aggregate EU is the world’s largest economy. Yet, he did recognize signs of EU “malaise,” referring to the recent label of the EU being a “sick man,” and alluding to its weak position in international affairs. The EU has certainly faced significant difficulties in recent times, especially with the turmoil in Greece, widespread recessionary forces, and the need to cut public expenditures to avoid further debt driven crises. However, for Prodi, these government driven afflictions provide justification for the EU to expand its power. He reminded us of the undeniably positive elements of the EU, the free movement of goods and labor between member states, and played on ingrained fear
ON POLICY
H. Michael Karshis
of war in Europe. Three war-less generations of EU members states is a result we should applaud. Unfortunately, this is a smoke and mirrors act. Free trade and cooperation is attainable outside the EU. Hong Kong’s policy of unilateral free trade serves as a model policy. Several European countries have negotiated successful trade cooperation with the EU without being member states. Membership in the European Free Trade Area is currently held by Norway,
These government driven afflictions provide justification for the EU to expand its power. Liechtenstein, Iceland and Switzerland. Countries have also arranged participation in other elements of the EU, with three EFTA countries taking part in the European Economic Area, and Switzerland successfully negotiating bilateral agreements with the EU.
Prodi’s humility, admitting that “politicians are obsessed” with elections, is to be commended. He concludes that politicians “never think to the long term ... never jump into the future.” Such arguments are particularly pertinent with respect to the EU, especially as it mutates into an anti-democratic institution. The EU is taking increasing amounts of power away from national governments and their people. For example, it imposes ever more regulations; over 70% of the UK regulatory costs since 1998 have derived from the EU.3 Prodi also alluded to the worrying ambitions of the EU when he argued that it is not democratic for an individual nation-state to unilaterally reject an EU decision. This reveals a perverse perspective on the sovereignty of member states and where power should lie. When pressed on this issue, he tried not to appear too federalist, claiming he did not want the EU to control welfare policy. However, with the EU already possessing vast powers, controlling the money of most members, and working towards the creation of a military and special EU taxes, one can certainly see the signs of its evolution into a super confederate state. Furthermore, its project to harmonize and foster greater cooperation leads inevitably to the growth of centralized EU power. BEST PRACTICE
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He declared that he was proud of democracy but that it has to prove itself in terms of results. In the questions, he was asked about democracy in China. Although admitting to have no expertise on the internal politics and shifts within China, he revealed a sense that China has become more open in recent years, providing indicators for future trends. On the economy, he showed optimism (or at least wanted to avoid talking down the economy), revealing his personal opinion that a “doubledip” will be avoided. Nonetheless, he showed no wild optimism, admitting that the recent crisis was arguably the biggest (in proportional terms) since the depression of the 1930s. From his academic experience in economics,
There was much to like of what Prodi said: the humility about politicians and their electoral focus, his commitment to free trade (at least between member states), and his musings on the future state of the world (from a man of such experience in government). His view of democratic government is that they should be distant from the people and run by unelected EU “representatives,” rather than by individually elected national parliaments. Two other points of interest were his views on the state of the world economy and on democracy. 14
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he concluded from history that it takes around 6-7 years for an economy to recover fully. Overall, there was much to like of what Prodi said: the humility about politicians and their electoral focus, his commitment to free trade (at least between member states), and his musings on the future
Steve Wampler
On the Euro, it was amusing to hear his opinion that there is “nobody now” against it. Admittedly, for nations whose governments have poorly managed money, the involvement of German central bankers is a clear improvement. However, with the Euro, the shared interest rate can never be appropriate to the vastly disparate nations (unless they all rapidly converge). The result is a great distortion and misallocation of resources. The EU imposed solution to this problem is greater harmonization of policies and resources. The unfortunate implication is the transfer of power away from the people towards the EU. Again, he implied that the decisions of minority interests against the EU are anti-democratic.
state of the world (from a man of such experience in government). However, his attachment to the EU project, although perhaps natural, is objectionable. The policy trend of greater state interference, taking power further away from the people and imposing central diktat on member states, is worrying. Unless the EU improves (or member states limit its influence or leave), the big government malaise afflicting EU nations is likely to spread and worsen. Unfortunately, hopes for such change appear limited given the inbuilt incentives of those working within the EU and their vision of harmonization. We thank the American Chamber of Commerce in Hong Kong for allowing The Lion Rock Institute to cover the event. James Lawson is a student at the University of Oxford and an Associate of the Adam Smith Institute.
ON POLICY
Government’s Proper Role Andrew Brandler discusses Hong Kong’s balance of “Big Market, Small Government”
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he role of government in the economy is an ongoing topic of discussion in many societies and Hong Kong is no exception. Business supports the notion of a free market operating in accordance with clear and fair regulations equitably enforced, and we believe this is what is meant by “Big Market, Small Government.” The private sector decides where to invest, and government establishes broad regulatory parameters to protect society’s interests. The government, as a rule, does not compete with private business in the marketplace. But, it is difficult to maintain this balance between government and businesses. When government makes the rules, it does so as an
authority independent of any business considerations of its own. Only in this way can it meet the constant challenge of maintaining fairness and a level playing field. In his 2009/2010 Policy Address, Chief Executive Donald Tsang said the government’s strategy for promoting the “six industries” would be: to “remove barriers to these industries” and “help them tap into new markets.” In doing so, the government would adhere to the principle of “Big Market, Small Government.” This strategy embodies what we think is a core government duty: to create and maintain a level playing field, for all sectors and for any business. So long as the government does not veer from
this strategy, it should be able to achieve the ideal of being both small and effective. Removing entry barriers is crucial, for instance, for the development of a vibrant medical services sector. In the debate over healthcare financing reform, the government has only announced that it would provide new sites for the development of private hospitals. We agree that this is a useful action for government to take, but the Chamber’s working group on healthcare reform has highlighted the opening of Hong Kong’s “closed shop” to physicians and other healthcare professionals with recognized qualifications from abroad. Doing so, we believe, is critical to boosting the supply of private healthcare, not just to hold down the cost of services, but also to provide a genuine alternative for those who can afford private care, thereby reducing the over-reliance on public hospitals. Sometimes, the playing field is not tilted by vested interests but by the visible hand of government rules and regulations. The plastic shopping bag levy is a good example. The levy, hailed as a success by the government in reducing plastic bag usage, applies BEST PRACTICE
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ON POLICY
problem with government breaking down barriers to new markets for the benefit of private enterprises – the second prong of the strategy outlined by Mr. Tsang. In many instances market entry requires government support; the implementation of CEPA is a case in point. Hong Kong’s deeper participation in the Mainland’s domestic market necessitates the well-coordinated and proactive involvement of the HKSAR government working with its Mainland counterparts. For example, unleashing the full potential of CEPA by active promotion at local levels on the Mainland can be effectively achieved by government agencies such as the Economic and Trade
Working group on healthcare reform has highlighted the opening of Hong Kong’s “closed shop” to physicians and other healthcare professionals with recognized qualifications from abroad. difficult to compete against them. It should be a fundamental principle that the public sector refrain from engaging directly in profit-making activities unless there is a strong policy reason to do so. Upholding this principle is vital if we are serious about keeping the government small and facilitating a big market. While we argue that public bodies should exercise restraint in commercial pursuits, we have no 16
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Offices, Trade Development Council, and Invest Hong Kong. On the other hand, the government and relevant public bodies will continue to play a big role in expanding RMB business in Hong Kong, because this strategic development will require continuous policy coordination with Beijing. Indeed, there is much for government to do to assist business in tapping into new markets
Vernon Dutton
to only 4% of retail outlets in Hong Kong. As a result, while some retailers have seen their costs increase as they take on the task of collecting government revenues, the vast majority are unaffected. The playing field will only be level again when the levy is applied universally. The levy is only 50 cents per bag but an important principle is at stake. In some circumstances, the government can also upset the balance in the market when its indirect influence is exerted through publicly funded bodies engaging in commercial activities. Public bodies invariably command more resources and have a very different view about cost and risk. Private companies find it very
externally, and removing barriers internally so as to maintain the competitiveness of our economy. In our 2008 Business Summit, the Chamber came up with 15 areas in which our members feel there is scope for Hong Kong to undertake more initiatives to create new opportunities for Hong Kong businesses. We must avoid the temptations to expand government and the public sector at the expense of private entrepreneurial pursuits. Above all, the government’s key task is to maintain a level playing field for all, which has been and will continue to be Hong Kong’s key success factor. Reprinted with permission from HKGCC. Andrew Brandler is the CEO of CLP Holdings, Ltd. and was the Chairman of The Hong Kong General Chamber of Commerce from May 2008 to May 2010.
On Philosophy
Health as a Human Right
Harald Groven
Jacob Mchangama reveals that “the right to health” is the wrong prescription – there is no evidence that it has improved healthcare anywhere in the world and in some cases it has undermined it
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hanks to huge increases in material prosperity and medical science over the last two centuries, people now live longer, healthier lives than at any other point in human history. Average life expectancies have shot up in almost all countries. However, in some developing nations, there are still significant numbers of people who suffer from preventable disease and rudimentary healthcare – for instance, around 3.8 million children die every year due to preventable or curable diseases such as pneumonia or diarrhea. For many, the fact that health varies so wildly across the world in spite of these increases in wealth and science is seen as a
grave injustice. This inequality has led many in the development community to demand the provision of healthcare as a human right, with governments legally bound to fulfill this right. This clarion call has been heeded not only by the UN, but government foreign aid agencies and development NGOs around the world. However, the promotion of the right to health as an enforceable right rather than a policy goal by activist legal scholars and the development community marks a major departure from traditional conceptions of human or “natural” rights. These are best understood
freedom of expression. The widespread official adoption of the right to health and other economic, social and cultural rights represents a major shift from these so-called “negative” rights heralded by the indivisibility approach adopted by the World Conference on Human Rights in 1993. Instead of simply requiring governments to refrain from actions which might interfere with the pursuit of good health, the activist interpretation of the right to health places specific and wide ranging obligations upon governments to ensure good health is enjoyed by all citizens. Such “positive” rights have traditionally been understood
It’s ideologically driven expansion risks undermining the rule of law, stifling political pluralism, reducing individual and economic freedom and options for effective policymaking. as the right of individuals to self determination, and act as a bulwark against government interference. They include the rights to peaceful enjoyment of property and to
as political aspirations and policy goals rather than enforceable individual rights. The result of the activist interpretation has been an unprecedented expansion of BEST PRACTICE
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the scope of the right to health beyond all reasonable legal bases in international law, effectively creating an individual enforceable right from what was intentionally drafted as a political aspiration. It is not clear that widespread official promulgation of the right to the highest attainable health has made any difference to health outcomes anywhere in the world. On the contrary, it’s ideologically driven expansion risks undermining the rule of law, stifling political pluralism, reducing individual and economic freedom and options for effective policymaking. This paper unfolds as follows. The first section details the right to health in international human rights law, and explores its original conception as an aspiration to be pursued by governments. The second section explores how the right to health was expanded into a positive and individual right by certain activist scholars and judicial bodies, and examines how this new interpretation results in the unequivocally ideological view that governments should be obliged to collectively fund and provide state healthcare. The final section examines whether or not the right to health actually improves healthcare, and suggests some other human rights which may be equally, if not more relevant, to better health. It is important to note that neither international human rights law nor most national constitutions include an unqualified right to health understood as a right to 18
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This official recognition of positive rights, such as health, has not been the exclusive domain of the legal community. be healthy. The widespread use of the term “the right to health” is therefore often misleading, suggesting a broad and open-ended right, which has little support in the wording of relevant international human rights law instruments. Despite this normative confusion, this paper will generally refer to the term “the right to health” for reasons of brevity.
The right to health in international human rights law The right to health found its genesis in the move to codify human rights following the end of the Second World War. Article 25 of the Universal Declaration of Human Rights (UDHR), adopted in 1948, states that: 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 service. Article 12 of the International Covenant on Economic, Social and Cultural Rights (the Covenant), adopted in 1966 includes, inter alia, “the right of everyone to the enjoyment of the highest attainable standard of physical and mental health.” Article 12 of the
Covenant contains obligations on signatory States, such as to take steps to reduce infant mortality and to improve industrial and environmental hygiene.1 Since the adoption of the Covenant, international and regional human rights instruments that include the right to health have proliferated2 and 56 state parties to the Covenant have some form of recognition of the right to health in their national constitutions.3 This official recognition of positive rights, such as health, has not been the exclusive domain of the legal community. It has also become practically orthodox within the international development community, led by the UN which has decreed that all its development activities “should further the realization of human rights as laid down in the Universal Declaration of Human Rights and other international human rights instruments.”4 Accordingly the UNs specialized health agencies such as UNICEF, WHO and UNAIDS have adopted a human rights-based approach to their respective areas of work, which often involves health. In 2002, the UN established a Special Rapporteur on the right to health, who serves as an independent expert drafting reports and recommendations to UN organs and member states as well as
Jeffsmallwood
On Philosophy
The right to health traps any hope of improved healthcare in a sticky web.
conducting country visits.5 Against this backdrop, the rightsbased approach to development and health has become mainstream among leading NGOs such as Oxfam and Save the Children, both of whom use the right to health as a key part of their advocacy.6 Perhaps unsurprisingly, given the influence of the UN and civil society on thinking related to development, the human rightsbased approach is now reflected in the official development policies of many major donor countries including Denmark, Canada, the United Kingdom, Australia, Norway and Sweden.7 In the UK, human rights have been explicitly placed at the center of all the activities of its development agency, DfID.8
With various health-related rights now included in numerous international human rights treaties ratified by a majority of the world’s states, and at the basis of much development policy, a rightsbased approach to health would appear to be uncontroversial. But when it comes to enforcing and implementing the right to health, it not only becomes practically and legally difficult; the right to health may actually undermine the efforts to improve health for all.
The original understanding of the right to health Compared to human rights treaties on civil and political rights, the
right to health – and most other economic, social and cultural rights – is drafted in relatively vague and imprecise language. The wording of the right to health in article 12 of the Covenant originates from a proposal submitted by a former Director General of the WHO,9 who emphasized that the obligations imposed by the right to health should vary for each country, with due allowance for their resources, their traditions and for local conditions. Some Governments with immense financial resources can concentrate on highly specialized problems and provide measures which only benefit a very small number of BEST PRACTICE
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people, while others have still to create a medical profession and health services before they can contemplate action of any kind10 The deliberate vagueness of the normative content of the right to health should be seen in conjunction with article 2(1) of the Covenant, which states that the parties must take steps...to the maximum of its available resources, with a view to achieving progressively the full realization of the rights recognized in the present Covenant by all appropriate means, including particularly the adoption of legislative measures The wording clearly suggests that with certain exceptions – such as a requirement of nondiscrimination – the rights in the Covenant are policy goals or aspirations rather than enforceable individual rights. This is in stark contrast to the Covenant on Civil and Political Rights, written at the same time, which typically mentions signatories’ immediate obligation to “ensure” the rights therein. This understanding is confirmed by the drafting history of the UDHR and the Covenant. Even many of the individuals and states that supported the concept of economic, social and cultural rights expressly acknowledged that these rights were of a different nature than the classic civil and political rights and that, therefore, individual enforcement would be 20
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extremely difficult and therefore undesirable.11 When the UDHR was being considered, one of its “founding fathers,” René Cassin, continuously emphasized the different nature of economic, social and cultural rights, even while supporting the inclusion and importance of such rights in the UDHR.12 These sentiments were also shared by Eleanor Roosevelt and Charles Malik and even the socialist John Humphrey acknowledged individual enforcement of economic and social rights was unrealistic.13 Roosevelt explicitly stated that “the basic differences between civil and political rights and economic, social, and cultural rights warrant this division into two covenants.”14 Even today, governments are divided about the nature of the Covenant, with a significant number of states holding that the rights therein are non-justiciable. The United Kingdom, for instance, insists that the Covenant constitutes
Covenant because it invites “rulings based on the political preferences of the members of the Committee on Economic, Social and Cultural Rights rather than on strict law.”16 This skepticism is, ironically, shared by some of the very same countries that have included the right to health in their development policies, such as Denmark, Canada, Australia and Sweden.17
The development of the right to health The Committee on Economic, Social and Cultural Rights The original understanding of economic and social rights, such as the right to health, as being aspiration and policy oriented rather than strictly legal, has undergone an almost revolutionary change. The human rights movement, including UN experts, has “developed” the understanding and nature of these rights so as to include
Compared to human rights treaties on civil and political rights, the right to health – and most other economic, social and cultural rights – is drafted in relatively vague and imprecise language. “mere principles and values and that most of the rights contained in the Covenant are not justiciable”15 whereas Poland is skeptical of judicial enforcement of the
obligations wholly absent from the wording and drafting history of the Covenant. The main body responsible for this development has been the Committee on
On Philosophy
Economic, Social and Cultural Rights (the Committee) which is the treaty body responsible for overseeing the Covenant. According to an article written by two international lawyers from the US State Department, Michael J. Dennis and David P. Stewart,
ranking government jobs including Committee members from authoritarian states such as Belarus. It is also worth noting that, of the non-lawyers on the Committee, few have formal training in economics. Economic understanding, which is crucial to the areas covered by the
Even Scandinavian welfare states like Denmark and Sweden that have large public sectors are conscious of the need for economic freedom to finance the generous entitlements enjoyed by their citizens. the Committee’s interpretation of the Covenant is “revisionist” and amounts to a “unilateral alteration in the substantive content of the Covenant or in the obligations there under”18 – in effect, changing the essence of a ratified treaty without the consent of the signatories. This legally and democratically dubious development has been enthusiastically embraced by the human rights and development community, including the World Health Organization. As such, the Committee’s interpretation has been an important driver in development policy related to health. The revisionist approach of the Committee is all the more worrying due to the fact that its legitimacy can be questioned. While all members of the Committee are elected in their personal capacity and thus act as independent experts, several Committee members hold high-
Covenant, is therefore very limited among the Committee members, some of whom are openly hostile to conventional economic thinking.19 The lack of economic understanding prompted a former member of the Committee to resign, stating that the Committee did not take cognizance of reality and, therefore, could not function properly.20 Moreover, membership of the Committee is only a parttime job and the Committee normally only convenes twice a year for sessions of three weeks’ duration – each covering the human rights situation in 5-8 countries – with a one-week pre-session working group. The membership and working methods of the Committee raise serious questions about its ability to carry out a thorough and sufficiently qualified analysis of the complex areas covered by the Covenant,
which includes not only health but also issues such as housing, social security and employment. The lack of appropriate time and expertise has resulted in the Committee putting a lot on emphasis on so-called “shadow-reports” from NGOs.21 While input from NGOs may be valuable, many NGOS pursue special interests and political agendas, which may, therefore, assert a disproportionate influence on the Committee. The role of the Committee will become increasingly important with the recent adoption of an optional protocol to the Covenant, which will allow individual complaints, including ones alleging a violation of the right to health. Such complaints will be decided by the Committee once the optional protocol enters into force. The General Comment The Committee has drafted a number of general comments on the interpretation of the rights in the Covenant including one on the right to the highest attainable health (the General Comment).22 The Committee also issues concluding observations and comments on state reports, which states that are party to the Covenant are obliged to submit every five years. Despite its initial moderation, the WHO has been a firm supporter of the Committee’s efforts, involving itself in the drafting of the General Comment23 and adopting a human rights approach to health.24 BEST PRACTICE
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The General Comment sets out extremely broad and wide ranging obligations for signatory states, and has clearly been influenced by health advocates, stating that citizens should not only have a right to ‘timely and appropriate healthcare’ but also to socio-economic determinants of health such as housing, water and so on.25 This has prompted even fervent supporters of the Committee and the Covenant to question the legal nature of some of the many directives included in the General Comment.26 According to the Committee, the right to health includes four essential elements (a) availability, (b) accessibility, (c) acceptability and (d) quality, which must all be fulfilled. The Committee also claims the right to health includes “core obligations” – minimum requirements which must be satisfied immediately without regard to resource constraints. It should be noted that the minimum
goods and services; food; shelter; sanitation; essential medicines as well as the duty to ensure equitable distribution of all these things. It is interesting to note that the South African Constitutional Court stated that “It is impossible to give everyone access even to a ‘core’ service immediately,” explicitly rejecting the Committee’s approach in a case based on the right to health, in which a right is included in the South African constitution.28 The Committee also insists that the right to health (like all Covenant rights) gives rise to tripartite obligations to “respect, protect and fulfill.” This terminology is also derived from the work of academics rather than the wording or drafting history of the Covenant.29 The duty to respect is mainly negative in character, in that it obliges the state from directly interfering with the right to health. In contrast, the duty to protect obliges states to ensure that
There is no objective way to define “available resources” or to determine whether such resources have been used to their “maximum.” core-obligation has no basis in the wording or the drafting history of the Covenant and is largely inspired by the efforts of academics.27 The minimum core obligation under the right to health imposes a number of duties on governments, including ensuring access to health facilities and 22
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third parties do not interfere with the right to health. Accordingly, the state may be liable for the actions of private individuals and corporations in the healthcare sector, which may give rise to governments interfering with contractual freedom by requiring private healthcare providers to
pay for medical services not included in insurance schemes. The Special Rapporteur on health has gone even further by stating that pharmaceutical companies may be directly bound by the Covenant, despite the fact that the Covenant only binds states and not private companies or individuals.30 The most far reaching obligation is the obligation to fulfill, which requires states to “adopt appropriate legislative, administrative, budgetary, judicial, promotional and other measures towards the full realization of the right to health.”31 States may thus be held accountable for a wide number of acts and omissions without being able to foresee which acts and omissions will constitute potential violations of the Covenant. The following excerpt from the General Comment provides a good example: A State which is unwilling to use the maximum of its available resources for the realization of the right to health is in violation of its obligations under article 12. If resource constraints render it
On Philosophy
impossible for a State to comply fully with its Covenant obligations, it has the burden of justifying that every effort has nevertheless been made to use all available resources at its disposal in order to satisfy, as a matter of priority, the obligations outlined above. However, there is no objective way to define “available resources” or to determine whether such resources have been used to their “maximum.” Such determination will by definition depend on subjective priorities among competing interests, the balancing of which will depend on political preferences. Such matters remain essentially subjective, despite the Committee’s attempts to make them concrete. How do you, for instance, determine whether steps taken by a state are “reasonable” or “adequate” as required by the Committee?32 Moreover, the Committee’s insistence that each Covenant right will be violated if the state does not use the maximum of its available resources to fulfill it shows the circular, self-contradictory and incoherent interpretation of the Committee. By definition, no state can use the maximum of its available resources on several Covenant rights at the same time, since these rights compete for the same and limited resources. If a state cuts spending on education, welfare or housing and increases spending on health, the Committee’s interpretation could arguably lead to praise for
How do you, for instance, determine whether steps taken by a state are “reasonable” or “adequate” as required by the Committee. prioritizing health and to a violation for giving insufficient priority to the Covenant rights affected by cuts. Therefore, a state will always be open to the charge that it has not spent enough on the right to health or other Covenant rights. Not only does this dramatic expansion of the right to health conflict with the wording and the original intent of article 12, but it also undermines the rule of law by obscuring foreseeability and legal clarity. The inherent problems with foreseeability and resource allocation show the fundamental difference between Covenant rights, such as the right to health, and civil and political rights, such as the prohibition against torture and freedom of speech. Regardless of whether a country is rich or poor, closing down an opposition newspaper and torturing its journalists is a clear violation of these rights. Upholding such rights does not depend on resources or on any abstract policies being put in place by governments other than observing the rule of law. However, the revisionist interpretation of the right to health is obviously appealing to leftleaning NGOs and their allies in the development community, who can buttress their ideological desire
for more collective, state action and redistribution with human rights language, claiming that a particular government has not used “the maximum” of its available resources on health. In this way, the development community absurdly insists that economic, social and cultural rights are “indivisible” from civil and political rights despite the obvious differences. This approach is impossible to reconcile with reality. Focusing on “the right to health” and other economic, social and cultural rights also serves as a convenient way for authoritarian states to deflect attention away from violations of the most basic civil and political rights with the result that international human rights efforts at the UN increasingly focus on perceived unequal distribution of global resources rather than on securing respect for individual freedom and the rule of law.
The ideological agenda of the right to health It is increasingly clear that the agenda of those advocating the right to health is highly political. This is, notably, the case in their opposition to healthcare systems that rely on competition and patient choice. While the BEST PRACTICE
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Committee recognizes that healthcare systems that rely on the private sector may comply with the Covenant, there is little doubt that the Committee is suspicious and sometimes downright hostile towards private healthcare. Its concluding observations have, for instance, heavily criticized the predominance of private healthcare within the Republic of Korea33 and Switzerland,34 despite these countries’ relatively good performance in healthcare. The Committee has never substantiated its claim that private healthcare systems are harmful to marginalized groups or that public health systems are better at serving the health of the population in general. The potential benefits of competition in the health sector, of increased choice for patients, or of the potential of private healthcare to help alleviate waiting lines in the public health sector, are similarly ignored.
The Canadian Chaoulli judgment The Canadian Supreme Court’s judgment in the Chaoulli case exemplifies the Committee’s antipathy to patient choice in healthcare. In Canada, private health insurance had long been banned in many provinces on the basis that it would undermine the country’s public, universal healthcare system. In 2005, the Canadian Supreme Court ruled that Quebec’s ban on private health insurance interfered with 24
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the right to life and physical integrity. This judgment was met with suspicion by the Committee and a great deal of hostility from human rights activists and scholars, many of whom believed that it undermined the right to health.35 However, it could reasonably be posited that the long waiting lists that characterize Canada’s public healthcare also threaten the lives of patients awaiting treatment.36 This kind of rationing falls squarely within the Committee’s own definition of the right to health and could be construed as a violation
care systems is ideological. Despite there being a plethora of evidence documenting the failures of the Canadian healthcare system relative to those of peer countries that make greater use of the private sector in health,37none of this was mentioned by the Committee.38 The Committee’s attitude towards health systems based on choice and competition mirrors that of most human rights academics. This is no coincidence, since academics have been highly influential in “developing” the Committee’s interpretation of the
The more the right to health becomes entrenched at the domestic and international levels, the greater the risk that alternative policies based on competition and individual choice will be stifled – particularly if enforced by courts. of both the obligation to “respect” and “fulfill.” Yet the Committee not only omits any reference to these serious deficiencies in the Canadian healthcare system, it also implies that the freedom to voluntarily enter into contracts with private healthcare providers and thereby potentially save one’s own life goes against the right to health. This is clearly absurd; yet, even when a publicly financed health system shows deficiencies, the Committee will favor it over alternatives. The Committee’s insistence on the superiority of public health-
right to health and the Covenant in general. Many academics have argued that realizing the right to health is dependent on pursuing a number of clearly social democratic policies such as redistributory taxation, and a rejection of ‘neoliberal’ economic policies – without providing any supporting data or analysis.39 The anti-market assumptions of the Committee and the development community have been described thus: many of those who promote the cause of economic and social rights
On Philosophy
do so as a camouflage for arguing in favour of a particular sort of economic and social organisation. … The rhetoric about economic and social rights is characterised by an intellectual laziness exemplified by the unargued assumption that realisation of economic and social rights requires systematic redistribution of wealth. Most of this rhetoric is provided by writers who clearly have little understanding of or sympathy for economics and who, in particular, do not understand the role of the market in allocating resources and enabling individuals to make their own choices.40 The ever increasing and ideologically fuelled normative content of the right to health has been an important ally of the development community’s antimarket bias. Activists can use the supposed legal obligations of the right to health to demand that governments implement “human rights consistent” policies – in practice, policies that favor state provision of healthcare services.41
Sans Frontières has repeatedly stated that access to medicines is a human rights issue, arguing that governments should ensure the equitable distribution of drugs by abrogating the patents of rightholders.43 Oxfam has similarly argued that medical research and development priorities should be determined by governments rather than the private sector, and that privately-held intellectual property rights should be disregarded.44 However, these NGOs’ interpretation of the right to health is influenced by ideology rather than sound legal reasoning or research into effective public policy. By presenting their collectivist policy proposals as human rights obligations and marketbased alternatives as human rights violations, such NGOs automatically place opponents on the defensive: after all, few governments or agencies wish to be perceived as opposed to something as fundamental as a human right. The more the right to health becomes entrenched at the domestic and international levels,
It is increasingly clear that the agenda of those advocating the right to health is highly political. Oxfam, for instance, has criticized the World Bank’s promotion of private health insurance and service delivery on the basis that it does not respect, protect and fulfill the right to health.42 Médecins
the greater the risk that alternative policies based on competition and individual choice will be stifled – particularly if enforced by courts. This has grave consequences for political pluralism and effective
policymaking. Democratic governments should reflect the desires of the citizens who elected them. These desires may reasonably and legitimately differ from the revisionist interpretation of the right to health.
Discussion: Which rights need to be enforced to improve health outcomes? While proponents of the right to health frequently stress its legal and moral imperative, they rarely discuss whether or not the state is well placed to actually deliver high quality, universal healthcare. To ignore such practical considerations seems to be a major gap in the discourse, especially when arguing that state-managed care should be preferred (and legally required) over alternative methods of delivering healthcare. The human rights literature often simply assumes that once an abstract “right to health” is enshrined into law, the state will be capable of planning, implementing, managing and financing equitable, high-quality healthcare. The reality is very different, largely because state bureaucracies are not wellplaced to anticipate and cater for the vastly differing and constantly changing health demands and needs of a population. If the state is to be responsible for delivering healthcare, it requires a group of individuals working for the health ministry to have a detailed and thorough knowledge BEST PRACTICE
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On Philosophy
of the healthcare requirements of all their citizens at any given moment in time. For resources to be distributed effectively, bureaucratic planners will need to know exactly what diseases are most common in each locality, how many physicians, diagnostic tools and drugs are required, and so on. These requirements shift constantly as demand rises and falls depending on changes in the population, most of which are unpredictable. To be effective, planners will need to be in possession of thousands – if not millions – of pieces of constantly changing information. In practice this is impossible, and the end result is waiting lists, shortages and other forms of rationing. In Canada’s statemanaged healthcare system in 2008, for instance, only 84 per cent of individuals over 12 years old had regular access to a physician.45 The
more decentralized and make greater use of the private sector – such as the Netherlands, France, and Switzerland. For instance, cancer survival rates in Britain are amongst the lowest in Europe,46 in spite of the fact that Britain spends an equal or greater proportion of its GDP on health. The experience of Canada and Britain contradicts the belief of the development community that the state is by definition the best agent to realize the right to health. Furthermore, the revisionists’ belief that the right to health should be justiciable is challenged by the experience of developing countries such as Brazil. Brazil’s constitution explicitly recognizes the right to health, but many patients who call upon the state to fulfill this obligation are frequently met with shortages and stock outs in state pharmacies. Many of these patients have therefore – quite reasonably
Many academics have argued that realizing the right to health is dependent on pursuing a number of clearly social democratic policies such as redistributory taxation, and a rejection of ‘neoliberal’ economic policies – without providing any supporting data or analysis. inherent failures of planning are also manifest in Britain’s National Health Service, which has longer waiting lists and greater rationing of medical technology than peer OECD health systems that are 26
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– responded by suing the government.47 The right to health has, therefore, led to an explosion of judicial challenges by patients against the government, with more than 1200 cases of judicial review
sought in the Rio Grande do Sul region alone each month. Such claims act as a major burden on the judicial system as well as a heavy fiscal burden on the government. There are also severe ramifications for equity. Rather than making access to healthcare universal, in Brazil, the enforceable right to health has had the perverse consequence of favoring the politically connected or those who can afford the high cost of judicial review. In the word of researchers, “the right to health generates enormous administrative and fiscal burdens and has the potential to widen inequalities in healthcare delivery.” Also, as a consequence of the increasing amount of resources devoted to the right to healthcare, the state will be forced to undermine the provision of other necessary public services, such as policing and justice. The reality is that there is little evidence that the rights based approach has any affect whatsoever in improving health. Many countries – including France, Switzerland and Singapore – do not explicitly recognize individually enforceable rights to health in their national constitutions yet manage to deliver extremely high quality and equitable healthcare. Neither does the ratification of human rights treaties make any difference to population health, as demonstrated in a recent study published in the Lancet.48 More importantly, the Lancet study also found that established market economies have far better
On Philosophy
health indicators than African, Asian and former Soviet countries, most of whose economies are far away from the free-market “neoliberalism” denigrated by human rights activists. 49 The reason why market economies tend to do better than countries in which there is less economic freedom is that they better generate the wealth necessary for financing better health (whether privately through employees being able to afford health insurance or publicly financed through taxation). Even Scandinavian welfare states like Denmark and Sweden that have large public sectors are conscious of the need for economic freedom to finance the generous entitlements enjoyed by their citizens. According to the International Property Rights Index, Denmark has the second highest protection of private property globally whereas Sweden and Norway are tied at fourth. 50 Denmark is also ranked 9th when it comes to overall economic freedom. 51 The right to health is highly problematic when construed as an enforceable right, with the state legally bound to enforce it in a particular and ideologically skewed manner. It would be better interpreted as a human aspiration whose implementation should be left to the democratic process and be decided upon the basis of the political convictions of the electorate. Elected politicians would then be free to implement (or reject) whichever kind of health system
is deemed most appropriate by the electorate, without being at risk of breaching human rights – be it predominantly private or state managed. Nevertheless, competitive markets have already shown themselves to be fundamental to fulfilling other human aspirations. Food is necessary for survival, but governments rarely own supermarkets or manage food supply chains and hunger is almost unheard of in market economies. Thanks to markets and their
from the “right” to health and toward the fundamental rights currently denied to hundreds of millions of people in poorer parts of the world: the right to free speech and the right to own and exchange property. These are the rights that will let people lift themselves out of poverty, giving them the resources to afford clean drinking water, adequate shelter, good nutrition and the decent healthcare systems necessary to achieve good health. These are the rights that matter most and that
The inherent failures of planning are also manifest in Britain’s National Health Service, which has longer waiting lists and greater rationing of medical technology than peer OECD health systems that are more decentralized and make greater use of the private sector – such as the Netherlands, France, and Switzerland. attendant technological innovation, food is cheaper and more abundant than ever before. The same is true of clothing. Markets have already contributed to the realization of the right to health by encouraging technological and pharmaceutical innovation, and distributing that knowledge all over the world via international trade.52 If the development community is serious about human rights and improving health, they would switch their focus away
are therefore truly worthy of the term “Human Rights.” Reprinted with permission from IPN. Published by International Policy Press, a division of International Policy Network © 2009 International Policy Network Jacob Mchangama is head of legal affairs at CEPOS, Copenhagen. He is also an external lecturer of international human rights law at the University of Copenhagen. BEST PRACTICE
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Leader’s Bookshelf
What Makes an Entrepreneur Successful? The Extra One Per Cent: How small changes make exceptional people. Reviewed by James Lawson
D
r. Rob Yeung is a British psychologist well-known for his research on personality. In his recent book, The Extra One Per Cent: How small changes make exceptional people, he interviewed many successful entrepreneurs. From his work, he concludes that there are broad categories of skills that differentiate people between those who achieve mediocrity and those who attain success. He also finds that an entrepreneur need not excel in all categories. Indeed, Yeung posits that it is pointless to work on one’s weaknesses, but instead, one should focus on his
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strengths. I was fortunate to listen to him reveal several of the insights in his recent book, most notably on perspectives and interviews. He began his talk by asking the audience what skills are required to become a successful entrepreneur. The standard responses of creativity, vision, people skills, judgement, risk taking, enjoying the work, etc., were all suggested. The problem, however, is in knowing who actually possesses these skills. A US study of professors finds that 94% believed that the quality of their work is in the top quartile. In order to explore these issues further, Yeung called upon the audience to participate in a psychology test; the “Lipstick” Test (this test can also be tried now by following the instructions below). The “Lipstick” Test [don’t sneak ahead to the results]: Get some lipstick, a felt pen, or just make use of your fingers. Using your dominant hand, write a large “E” on your forehead. Do this now. Your results depend on how you wrote the letter “E.” An E is written with a vertical line and three
horizontal lines. Did you write the E so that the vertical part was on the left side of your forehead? Or, did you write the E so that the vertical part was on the right side of your forehead? Writing an E so that the vertical line is on the left is how one would write it on a page. This suggests you are writing the E to yourself, and thus have an inwards perspective. However, if you naturally wrote it with the vertical line on the right, so others around you would be able to read it from your forehead as an E, this suggests you have an outwards perspective. The advantage of the latter is that you are more likely to focus on what others think. Children are very egocentric. Similarly, as one becomes more senior and is less frequently challenged by others (as juniors can rarely advance their career by challenging their boss, whilst a boss is free to challenge his staff at will), one can forget to view things from the perspectives of others. Understanding other perspectives can be highly important in business. Yeung cites research conducted by top American M.B.A. students
Leader’s Bookshelf
to buttress his argument. He sets up a scenario with buyers and sellers with a set of basic conditions for each side (both sides were highly motivated given their business context, competitive desire to succeed, and significant financial attachment to their M.B.A program). The buyers were then divided into three groups. The first was the control group. They were given the basic information and then told to negotiate deals. About 30% of this group was successful. The second group was given empathic instructions. They achieved a higher rate of success, with around half negotiating deals with the sellers. The third group was given perspective instructions. They had a greater focus on the goals, objectives, and thoughts of the sellers. This group achieved a success rate of around 76%, more than double that of the control group. The conclusion: one should consider business from other people’s perspectives and do so actively (rather than simply assuming one does it). However, it is not really this simple. Yeung detailed the story of an entrepreneur he interviewed called Nadim. This entrepreneur went from producing various goods, from guidance systems to toys, to setting up his own toy company. Initially, and over an extended period, he had little success, despite having products in major retailers such as Tesco (the 4th largest retailer in the world, and the largest in the UK). Though he undertook waves of
market research and used focus groups, he struggled to give his toys a market edge. Then, in a last ditch attempt, he put out invitations for feedback with his toys. By hosting events for parents, he was able to monitor them closely and realize that the results generated by traditional market research were distorted. Participants had been holding back their true opinions, often saying what the researchers wanted to hear. Nadim found that while mothers will rarely admit to it in research, they often select toys based on an image they would like to project of their family. Additionally, they prefer toys with a story and names, helping them to more easily play with their children. By taking these insights into consideration and better engaging with the customers from their perspective, Nadim has since seen sales rise significantly. Whilst many in business may be highly successful, they are rarely trained in interview techniques. It is common for interviewers to ask questions about the future and people’s visions, even if they start briefly with questions about the past. Candidates arguably exaggerate and simply say what the employer wants to hear. This can result in employees failing to meet expectations. Yeung’s main suggestion was to frame questions in the past tense. This alternative type of interviewing is known as the Critical Incident Technique. These techniques originate from Sir Francis Galton’s work on the Aviation Psychology Program of
the United States Army Air Forces. The style is that of a police officer or lawyer, forensic and evaluative, similar to an interrogation more so than an interview. The example Yeung used was, “Give me an example when you got someone to change their mind.” This question was then followed by probing questions into the minutia of the account. “Why didn’t X agree with you? How did you get X to change her/his mind? What did you do to Y to make her/him change her/his mind? How effective was doing Y?” Yeung argues that such an approach, by giving one a rich perspective of a candidate’s past, gives the interviewer a better idea of whether the candidate is embellishing their application, and whether they will be effective in the real world market, rather than simply in the hypothetical. Overall, Yeung’s talk was well argued, imparting much of the wisdom found within his book, especially on interview techniques and perspectives. To gain a fuller scope of Yeung’s analysis, his book, The Extra One Per Cent: How small changes make exceptional people, should be the next point of reference. We thank the American Chamber of Commerce in Hong Kong for allowing The Lion Rock Institute to cover the event. James Lawson is a student at the University of Oxford and an Associate of the Adam Smith Institute. BEST PRACTICE
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Odds and Ends
Mr. Li’s off the hook Leung Yan Ke debunks the urban legend connecting Hong Kong’s tycoon to signal 8 typhoons
T
Adam Kubar
his past October, athletes who planned to play in Hong Kong’s Ultimate Frisbee Pan Asian games rejoiced, as others who crossed their fingers for a long T-8 Megi weekend were left disappointed when, in fact, Typhoon Megi didn’t hit Hong Kong as predicted. A popular urban legend in Hong Kong says that it’s Li Ka-shing, and not the Observatory, that is at the helm of signaling T-8s; it is said Mr. Li doesn’t allow T-8s to fall on weekdays because it would put a dent in his earnings (as workers have reason to stay home rather than shop, commute to work, etc.). It is human nature to assign a reason for everything we observe, however nonsensical, but today’s
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Alas, predicting the weather is difficult, and while we have fairly good means of doing so, getting a man like Mr. Li involved on the business side could help weather prediction advance. general discontent would have you blame a tycoon. To be fair, it wasn’t only the Hong Kong Observatory that wrongly predicted Megi would hit home, an overwhelming number of other national weather departments around the region expected the same thing. Alas, predicting the weather is difficult, and while we have fairly good means of doing so, getting a man like Mr. Li involved on the business side could help weather prediction advance. Prediction and presentation of weather are wholly different industries. The former is state run and involves specialized work, while the latter is private and seen on television networks or websites. As an example, in New York City, it is rumored that TV weather presenters have a prejudice to downplay rain forecasts for weekends. Sensible from a business standpoint, the bias helps
attract viewers to the channel and doesn’t disappointingly change weekend plans. A weather report predicting rainfall, however, would keep people indoors, resulting in revenue losses for vendors, and prompting complaints. It’s good then – while NYC broadcasters may spin their weather reports – that the public has competing avenues to access the weather, such as weather websites where state run weather models can be found. Government funding and work pioneered the web, but it is thanks to a relatively unregulated market that the internet has become commonplace, beneficial for all, and simultaneously shaped by users. Having this latitude of information at our fingertips is not the historical norm, but it is highly beneficial and is one reason non-traditional means of media are replacing older models. Consumers are happy
Odds and Ends
predictions, such as a typhoon like Megi. Of course, a thriving private sector would need to be present; otherwise, competition to make that happen cannot occur. And, to involve the private sector, we’d have to allow a superman like Li Ka-shing to do what he does best. Mr. Li’s prowess is certainly to be admired, but he can hardly control the weather. It is absurd to suggest that Mr. Li has any power over T-8s (he’s not that superman), and especially just on weekdays. It’s funny, then, to find that the HKO data trends in the opposite direction, as the number of T-8s has actually halved in the past few decades as Mr. Li’s fortunes have grown. Certainly, there’s no correlation, and for the naysayers – since the 1980s, only 23% of T-8s have fallen on weekends. So, Mr. Li is off the hook. It’s a natural inclination to assign someone as a scapegoat, but Hong Kong people have become so disenchanted with the current lack of transparency in Government that anger spreads outward to every nook and cranny. In this case, it falls more jokingly on Mr. Li than anything else. Nevertheless, it’s indicative of the current malaise
The number of T-8s has actually halved in the past few decades as Mr. Li’s fortunes have grown. Certainly, there’s no correlation, and for the naysayers – since the 1980s, only 23% of T-8s have fallen on weekends. So, Mr. Li is off the hook.
NASA Goddard Space Flight Center
to see such widespread changes catered by their own demands. After all, even jazzy TV weather graphics aren’t worth the wait when immediate access to numerous weather websites is available in centiseconds. However, it didn’t start out this way; the web has evolved via market processes, coupled with transparency and freedom to innovate. I never cease to marvel at, and wonder about, the possibilities in innovation should deregulation of industries, like weather services, occur. Tracking back to Typhoon Megi, it was only the one data model, from NOAA the US weather agency, out of many that predicted Megi wouldn’t hit Hong Kong. For the world to rely on an outlier wouldn’t be practical, which is why most news services, save the US’s, forecasted that Megi would indeed come to Hong Kong with T-8 prowess. Predicting the weather has improved, as there have been great successes made in each decade from national weather agencies. But if we can imagine market processes being more involved, we would have even greater innovation to enable better
which has become increasingly widespread. From laws such as Competition Law to the MPF, the fact that legislation has allowed favoritism and collusion to thrive between businesses and Government makes it difficult to believe that the Government is capable of doing anything to benefit the public due to its established reliance on the now common traditional structures. As the path of Typhoon Megi became clearer, it’s Lion Rock’s hope that the Government’s policies and legislation undergo a similar transformation. Moreover, it’s clear that allowing an environment in which business can innovate and compete has led to great results, and we should continue on this course for the good of our own lives and those of future generations. Leung Yan Ke 梁妍珂 is a Research Associate with The Lion Rock Institute, Hong Kong’s leading free market think tank. BEST PRACTICE
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Endnotes and Image References Reusable Grocery Bags and Health Risks Charles P Gerba, David Williams, and Ryan G. Sinclair, Assessment of the Potential for Cross Contamination of Food Products by Reusable Shopping Bags (Tucson: The University of Arizona, 2010). Also at http://bit.ly/97L2H3 2. Health Canada’s recommendations to avoid cross-contamination, http://bit.ly/aeLmkG; Minnesota Department of Health recommendations to avoid cross-contamination. Also at http://bit.ly/d3DV5n 3. The University of Arizona performed a technical study that is different from this research. Lion Rock’s study was only for the purpose of discovering the existence of pathogenic bacteria in bags; the level of bacterial content is outside the scope of this study. 4. Press Conference video: http://www.youtube.com/watch?v=-rokokHU2_I 5. EPIC, Grocery Carry Bag Sanitation:“A Microbiological Study of Reusable Bags and ‘First or Single-use’ Plastic Bags” (Toronto: EPIC, 2009). 6. Salmonella, resulting from diarrhea and vomiting, in its most severe cases can serious health hazards. In 2009, at the Tuen Mun Hospital, there were serious salmonella infections leading to grave dangers to patient health. 1.
The New World Order 1. 2. 3.
Stockholm International Peace Research Institute, SIPRI Yearbook 2010, World Armaments and Disarmament. Population Reference Bureau, 2010 World Population Data Sheet. Open Europe, Still out of control? Measuring eleven years of EU regulation.
Health as a Human Right 1. 2.
2.
3. 4. 5. 6.
7. 8. 9. 10. 11.
12. 13. 14. 15. 16. 17. 18. 19.
20. 21. 22. 23. 24.
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The States Parties to the present Covenant recognize the right of everyone to the enjoyment of the highest attainable standard of physical and mental health. The steps to be taken by the States Parties to the present Covenant to achieve the full realization of this right shall include those necessary for: a) The provision for the reduction of the stillbirth-rate and of infant mortality and for the healthy development of the child; b) The improvement of all aspects of environmental and industrial hygiene; c) The prevention, treatment and control of epidemic, endemic, occupational and other diseases; d) The creation of conditions which would assure to all medical service and medical attention in the event of sickness. See, inter alia, article 16 in the African Charter on Human and Peoples’ Rights, article 10 in the additional protocol to the American Convention on Human Rights, article 24 of the United Nations Convention of the Rights of the Child, article 35 of the EU Charter on Fundamental Rights, Article 11 of the European Social Charter, and Article 11 of the Revised European Charter. Gunilla Backman et al, “Health Systems and the right to health: an assessment of 194 countries”, in the Lancet Vol. 372 December 13, 2008 p. 2059 UNICEF. 2004. “The Human Rights-Based Approach,” United Nations Children’s Fund. http://www.unicef.org/sowc04/files/ AnnexB.pdf. (Accessed on 09/09/2009) See Human Rights Commission resolution 2002/31 Esmé Berkhout and Harrie Oostingh. 2008. Health insurance in low-income countries: Where is the evidence that it works? Joint NGO Briefing Paper of 7th May 2008. Oxford: Oxfam International. http://www.oxfam.org.uk/resources/policy/health/downloads/bp112_health_ insurance.pdf. (Accessed on 09/09/2009) Dzodzi Tsikata. 2004. “The rights based approach to development: potential for change or more of the same?” IDS Bulletin 35(4): 130–133. http://www.dfid.gov.uk/Global-Issues/How-we-fight-Poverty/Human-Rights/Humanrights-and-justice/ UN Doc. E/CN.4/544. Ibid. Michael J. Dennis and David P. Stewart “Justiciability of economic, social and cultural rights: Should there be an international complaints mechanism to adjudicate the rights to food, water, housing and health?” in American Journal of International Law, Vol. 98, No. 3 (Jul., 2004) pp. 462–515, pp. 476–489. See also Whelan, Daniel, Indivisible Human Rights: A History. University of Pennsylvania Press (forthcoming, 2010). Johannes Morsink.1999. The Universal Declaration of Human Rights, Origins, Drafting and Intent, University of Pennsylvania Press. Pp. 223–232. Ibid. and Dennis and Stewart op.cit. note 11 p 479 note 116 and Hobbins, A.J. Red. 1996. On the Edge of Greatness: The Diaries of John Humphrey, First Director of the United Nations Division of Human Rights. Montreal: McGill University Libraries. P. 202. Department of State Bulletin, December 31, 1951, pp. 1059, 1064–1066 available at http:// www.udhr.org/history/statement.htm (accessed on 20 October 2009) Concluding Observations of the Committee on Economic, Social and Cultural Rights United Kingdom of Great Britain and Northern Ireland, the Crown Dependencies and the Overseas Dependent Territories E/C.12/GBR/CO/5 22 May 2009 See UN Doc. A/C.3/63/SR.40 at para. 40. See A/HRC/8/7 of 23 May 2008 Dennis and Stewart op.cit. note 11 p. 494 For criticism of the Committee’s lack of macroeconomic understanding see Mary Dowell Jones, 2004, Contextualising The International Covenant On Economic, Social And Cultural Rights: Assessing The Economic Deficit, Martinus Nijhoff Publishers, p. 2. The Committee’s former chairman has stated that “Descriptions of macro or even microeconomic policies… are in fact of no intrinsic value”. Ibid p. 5. UN Doc. E/C.12/1994/SR.24 at para 1–4. M. Langford and Jeff A. King, the Committee on Economic, Social and Cultural Rights in M. Langford (ed.), 2008, Social Rights Jurisprudence Emerging Trends in International Law, Cambridge University Press, p. 481. The right to the highest attainable standard of health: 11/08/2000. E/C.12/2000/4. Gunilla Backman et al. 2008. “Health Systems and the right to health: an assessment of 194 countries”, Lancet 372: 2048. The WHO has dedicated a website to the issue of health and human rights. See http://www.
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25. 26. 27.
28. 29. 30. 31. 32. 33. 34. 35.
36. 37.
38. 39.
40. 41.
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45. 46. 47. 48. 49. 50. 51. 52.
who.int/hhr/en/. See also http://www.who.int/hhr/HHRETH_activities.pdf for an overview of the WHO’s work on human rights and health. The right to the highest attainable standard of health: 11/08/2000. E/C.12/2000/4. Para. 11. M. Langford and J.King. 2008 ”Committee on Economic, Social and Cultural Rights” in Social Rights Jurisprudence Emerging Trends in International and Comparative Law. Edited by M. Langford. Cambridge University Press p. 481 See P. Alston. 1987. “Out of the Abyss: The Challenges Confronting the New U.N. Committee on Economic, Social and Cultural Rights,” Human Rights Quarterly 9(3): pp. 332 – 382 and M. Langford and J.King. 2008”Committee on Economic, Social and Cultural Rights” in Social Rights Jurisprudence Emerging Trends in International and Comparative Law. Edited by M. Langford. Cambridge University Press P. 492. Minister of Health and Others v Treatment Action Campaign and Others 2002 (5) SA 721 BCLR 1033 (CC) para. 35. Ida Lisabeth Koch. 2005. “Dichotomies, Trichotomies or Waves of Duties?” Human Rights Law Review. 5: 81–103. See UN.Doc A/61/338 para. 93. The right to the highest attainable standard of health: 11/08/2000. E/C.12/2000/4 para. 33. An evaluation of the obligation to take steps to the “Maximum of available resources” under an optional protocol to the Covenant UN Doc E/C.12/2007/1 at para. 8. Concluding Observations of the Committee on Economic, Social and Cultural Rights, Republic of Korea, U.N. Doc.E/C.12/1/Add.59 (2001) para. 26. Conclusions and recommendations of the Committee on Economic, Social and Cultural Rights, Switzerland, U.N. Doc. E/C.12/1/Add.30 (1998) para. 24 and 36. Conclusions and recommendations of the Committee on Economic, Social and Cultural Rights, Canada, U.N. Doc. E/C.12/CAN/CO/4, E/C.12/CAN/CO/5 (2006) para. 36. See also King, Jeff A., Constitutional Rights and Social Welfare: A Comment on the Canadian Chaoulli Health Care Decision. Modern Law Review, Vol. 69, No. 4, pp. 631–643, July 2006. Available at SSRN: http://ssrn.com/abstract=913125 or DOI: 10.1111/j.1468– 2230.2006.00602_1.x Chaoulli v. Quebec (Attorney General), [2005] 1 S.C.R. 791, 2005 SCC 35 para. 38–43. Nadeem Esmail and Michael Walker. 2008. How Good Is Canadian Health Care? 2008 Report: An International Comparison of Health Care Systems. Vancouver: Fraser Institute. http://www.fraserinstitute.org/commerce.web/product_files/ HowGoodisCanadianHealthCare2008.pdf. (Accessed on 09/09/2009) Conclusions and recommendations of the Committee on Economic, Social and Cultural Rights, Canada, U.N. Doc. E/C.12/CAN/CO/4, E/C.12/CAN/CO/5 (2006) See e.g. Alicia Ely Yamin. 2008. “Beyond Compassion: The Central Role of Accountability in Applying a Human Rights Framework to Health,” Health and Human Rights 10(2): 11 and Radhika Balakrishnan and Diane Elson. 2008. ”Auditing Economic Policy in the Light of Obligations on Economic and Social Rights,” Essex Human Rights Review 5(1). http:// projects.essex.ac.uk/ehrr/V5N1/ElsonBalakrishnan.pdf. (Accessed on 09/09/2009) Bernard Robertson. 1997. “Economic, Social and Cultural Rights: Time for a Reappraisal,” New Zealand Business Roundtable. http://www.nzbr.org.nz/documents/publications/ publications-1997/nzbr-rights.doc.htm. (Accessed on 09/09/2009) See http://www.guaranteedhealthcare.org/blog/human-righthealth-care/2009/06/22/ amnesty-international-usa-calls-senateconsider-single-payer and NESRI. 2009. “A Human Rights Assessment of Single Payer Plans,” National Economic & Social Rights Initiative. http://www.nesri.org/Single_Payer_Human_Rights_Analysis.pdf. (Accessed on 09/09/2009) Esmé Berkhout and Harrie Oostingh. 2008. Health insurance in low-income countries: Where is the evidence that it works? Joint NGO Briefing Paper of 7th May 2008. Oxford: Oxfam International. http://www.oxfam.org.uk/resources/policy/health/downloads/bp112_ health_insurance.pdf. (Accessed on 09/09/2009) Speech given by Bernard Pécoul, Director, Campaign for Access to Essential Medicines, MSF on the 25th Anniversary of the WHO Essential Medicines List. Available at http:// www.msf.org/msfinternational/invoke.cfm?component=article&objectid=82D6EC2B9E93–4672–9F3697B8F8829D36&method=full_html.(Accessed on 09/09/2009) Anna Marriott. 2009. Blind Optimism: Challenging the myths about private health care in poor countries. Oxford: Oxfam International. P. 1. http://www.oxfam.org.uk/resources/ policy/health/downloads/bp125_blind_optimism_private_health_care.pdf. (Accessed on 09/09/2009) 2009. ” Canadian Community Health Survey,” Statistics Canada. http://www.statcan.gc.ca/ daily-quotidien/090626/dq090626beng.htm. (Accessed on 09/09/2009) Cancer survival rates amongst worst in Europe, Daily Mail, 24th March 2009, available at http://www.dailymail.co.uk/health/article-1164295/Cancer-survival-rates-Britain-wostEurope.html, accessed 11 Sept 2009 João Biehl et al. 2009. “Judicialisation of the right to health in Brazil,” Lancet 373: 2182–2184. Alexis Palmer et al. 2009. “Does Ratification of human-rights treaties have effects on population health?” Lancet 373: 1989. See eg. Economic Freedom of the World: 2008 Annual Report, Chapter II available at http:// www.freetheworld.com/2008/EFW2008Ch2.pdf. (Accessed on 09/09/2009) http://www.internationalpropertyrightsindex.org/atr_Fina11.pdf 2009. “Index of Economic Freedom 2009,” Heritage Foundation. http://www.heritage.org/ index/ranking.aspx. (Accessed on 09/09/2009) Ann L. Owen, and Stephen Wu. 2007. ”Is Trade Good for Your Health?” Review of International Economics 15(4): 660–682.
Photo Credits P12 P13 P14 P16 P17 P19 P30 P31
World Economic Forum, http://www.flickr.com/photos/worldeconomicforum/962944853/ H. Michael Karshis, http://www.flickr.com/photos/hmk/380966844/ Steve Wampler, http://www.flickr.com/photos/sgw/2892058635/ Vernon Dutton, http://www.flickr.com/photos/nursingpins/3947412234/ Harald Groven, http://www.flickr.com/photos/kongharald/3186297316/ Jeffsmallwood, http://www.flickr.com/photos/jeffsmallwood/233853485/ Adam Kuban, http://www.flickr.com/photos/slice/2682984875/ Goddard Space Flight Center, http://www.flickr.com/photos/gsfc/5097207310/
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