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

One of the most disadvantaged groups  throughout history are indigenous peoples, who regularly face inequality in multiple manners and multiple sectors, such as the access to healthcare. This blogpost will address the status of the indigenous peoples of the Peruvian Amazonia in what concerns the right to access to healthcare. Having already discussed the legal situation in what concerns this right, we will turn towards this case study to visualise whether international instruments such as C169 and UNDRIP have achieved a de facto protection of indigenous populations.

Throughout history, the (physical and mental) health of indigenous communities has been jeopardised in multiple manners, and in multiple moments. For instance, a recurrently cited ‘hazard’ to indigenous communities was the introduction of foreign illnesses and diseases with pandemic potential. This might have been true in the era of colonisation, since during that period alone, approximately 95% of the indigenous population of Latin American countries was decimated[1]. Such effects have been popularly held as a direct consequence of a “lack of immunity” on the behalf of the indigenous communities to common illnesses. However, since various indigenous populations have been in contact with urban areas in a recurrent manner, be it for personal purposes or because of their professional endeavours, the ‘lack of immunity’ is not a strong argument in modern-day society. But the lack of proper access to healthcare in a suitable manner is.

Indigenous populations are subject to a multiplicity of factors that put them at much more risk of succumbing to physical illnesses due to lack of appropriate access to health care: geographical isolation, linguistic and cultural differences, socio-economic status, ethnicity, etc. These barriers continue to be unaddressed, resulting in either a lesser availability to medical resources and adequate healthcare, or a complete absence of these.[2] For instance, as reported in the study “Healthcare Access and Health Beliefs of the Indigenous Peoples in Remote Amazonian Peru” (2014), 20% of the subjects studied had never had access to a doctor, and 70% recognised that they would not be able to consult one.[3] Whereas the first response could be explained by geographical isolation, the latter was caused by the lack of economic resources to afford consults with health practitioners.

This inequality on the basis of socio-economic status can be considered to interfere with Article 24(1) UNDRIP, and Article 25(1) ILO Convention C169. These provisions require the national governments to provide ‘Indigenous individuals also have the right to access, without any discrimination, to all social and health services.’, and to ‘ensure that adequate health services are made available to the peoples concerned or shall provide them with resources to allow them to design and deliver such services under their own responsibility and control…’, respectively. There is no equal access to health services, nor availability to these services, where there is no support for these communities that do not have the necessary monetary resources to access medical treatment.

Besides addressig these factors, it is necessary to ensure an adequate approach for the gradual realisation of the right to access to healthcare, particularly in what concerns the structure of the healthcare system. Due to the geographical isolation and dispersion of indigenous people, a decentralised healthcare system could be an appropriate manner to address this particular issue, if implemented correctly.  However, it was found that the approach towards a “decentralised” healthcare system, in order to assist the most isolated communities of the Peruvian Amazon region, was inconsistent. For example, whereas the national measures regarding the Human Immunodeficiency Virus (HIV) included decentralizing provisions, the guidelines established to tackle Tuberculosis (TB) did not include provisions for that purpose.[4] This means that, while the right to access to healthcare for indigenous populations in what concerns HIV can be realised due to the appropriate conditions for the implementation of a decentralised healthcare system, this right cannot be guaranteed in view of TB treatment and detection.

Although Article 24(2) UNDRIP does not specifically provide for a decentralised strategy, rather focusing on the ‘gradual realisation’ of this right, Article 25(2) ILO Convention C169 provides that ‘health services shall, to the extent possible, be community-based. These services shall be planned and administered in co-operation with the peoples concerned and take into account their economic, geographic, social and cultural conditions…’. A strategy for decentralisation could meet this requirement of a ‘community-based’ health service. However, due to the lack of practicality and efficiency in the current state of the decentralised system, it cannot be said that this provision has been adequately translated into reality.

This article only considered Peru, but it is not ungrounded to suppose that the situation is similar in cases of other indigenous groups. Furthermore, these two examples do not address factors that further impede access to healthcare by such communities. There is a certain percentage of indigenous groups that is illiterate, that may use autochthonous languages, that might not be capable of properly understanding a diagnosis or the implications of a disease due to a lack of education, and that do not have a proper space to recover or to be treated in.

While the aforementioned international instruments, the UNDRIP and ILO Convention C169 provide a framework in which policies to ensure the access to healthcare by indigenous people can be framed, it has proved to be difficult to realise these measures in practice. It appears that neither the legally binding ILO Convention C169, nor the legitimate UNDRIP managed to protect the rights of indigenous peoples.  Indigenous populations continue to be vulnerable in society in various regards, both in health and in law. This is particularly troubling in light of the current global pandemic, which emphasises the need for further action, both at the national and international level, to address the health concerns present in indigenous communities.

This post only targets the surface of the problem. There are many more barriers to healthcare not explicitly covered here, such as systemic racism, lack of secure housing, no access to hygienic products, the cost of medical procedures, lack of proper programs targeting mental health…, all of which affect indigenous populations. There is much uncertainty on how equality of access to healthcare can be achieved. Nevertheless, the fact remains clear: the right of access to healthcare, while internationally guaranteed de jure, is not a de facto reality for many vulnerable groups and minorities.

[1] Hamilton MJ, Walker RS and Kesler DC, ‘Crash and Rebound of Indigenous Populations in Lowland South America’ (2014) 4 Scientific Reports 4541 <https://doi.org/10.1038/srep04541>

[2] Negin J and others, ‘HIV Among Indigenous Peoples: A Review of the Literature on HIV-Related Behaviour Since the Beginning of the Epidemic’ (2015) 19 AIDS and Behavior 1720 <https://doi.org/10.1007/s10461-015-1023-0>

[3] Brierley CK and others, ‘Healthcare Access and Health Beliefs of the Indigenous Peoples in Remote Amazonian Peru’ (2014) 90 The American journal of tropical medicine and hygiene 180 <https://pubmed.ncbi.nlm.nih.gov/24277789>

[4] Gianella C and others, ‘Vulnerable Populations and the Right to Health: Lessons from the Peruvian Amazon around Tuberculosis Control’ (2019) 18 International Journal for Equity in Health 28 <https://doi.org/10.1186/s12939-019-0928-z>