Health Care is a Right, not a Privilege

“If you have your health, you have everything,” the classic saying goes. This is obviously not perfectly accurate, as many healthy people certainly do not have everything. However, it does reflect the connection that the right to health has to other human rights, and the interdependency that all human rights have with each other. Poor health can keep us from going to school or to work, caring for our families, or fully participating in our communities. States are responsible for respecting, protecting and fulfilling their human rights obligations, with international, regional, national and local actors supporting states and holding them accountable. The right to health exists, distinct from traditional political and civil rights, and there is an entire global apparatus built around making the right meaningful and real. I will spend this year exploring and evaluating these systems and human rights frameworks, seeking to understand how to best implement the human right to health.

The right to health was first recognized in the 1946 World Health Organization (WHO) constitution, which states that “the enjoyment of the highest attainable standard of health is one of the fundamental rights of every human being without distinction of race, religion, political belief, economic or social condition.” The right to health was also affirmed in the Universal Declaration of Human Rights in 1948 and in the International Covenant on Economic, Social and Cultural Rights (ICESCR) in 1966. States that ratify the ICESCR are bound by international law to protect the right to health with “progressive realization.” This means that states must do everything they can to the best of their available resources. Subsequent human rights instruments address the right to health, including the Convention on the Rights of the Child in 1989 and the Convention on the Rights of Persons with Disabilities in 2006. Every state in the world is now party to at least one human rights treaty that addresses health-related rights. The treaty bodies that monitor the Conventions have made general comments and recommendations on health-related rights issues, providing an authoritative interpretation of what the right to health means. Although a common criticism of the right to health is that it is difficult to define, it has been increasingly specified by a variety of governance actors. International conferences and declarations, such as the UN Sustainable Development Goals, also delineate what the right to health means. States enact domestic legislation and policies that further their commitment; at least 121 constitutions recognize their governments’ health related duties. 

So what does the right to health mean? States are obligated to fulfill the right through the provision of access to health care and hospitals, safe drinking water and sanitation, and food and housing. It entitles people to a system of disease prevention, treatment and control with access to essential medicines. It extends beyond these entitlements to people’s freedoms, such as the freedom to say no to medical treatment. It relates to a range of health determinants, including gender equality, healthy working conditions, and health-related education. The right to health is not the right to be healthy, which is outside of states’ direct control. This is why it is referred to as the right to the “highest attainable standard” of health. UN bodies, specialized agencies, the private sector, and even health professionals have responsibilities related to the right to health. The nature of businesses’ specific obligations are a bit unclear, and states are ultimately accountable for human rights violations, but there is a growing effort to define human rights standards that are applicable to businesses.

The right to health is idealistic in many ways, but it can be monitored and enforced. Accountability and monitoring take place at national, regional and international levels with involvement from states, NGOs, national human rights institutions, international treaty bodies and UN Special Rapporteurs. At the national level, administrative and political mechanisms contribute to accountability, such as national health policies and budgets. National judicial mechanisms can provide legal remedies to individuals when their rights are violated. Incorporating the right to health into national or subnational laws allows courts to judge violations with direct reference to the ICESCR. For example, Argentinian courts have ruled that the state must guarantee an available supply of antiretroviral drugs to people who are HIV-positive. Additionally, the Treatment Action Campaign in South Africa illustrates the ability of NGOs to use advocacy and social mobilization to fight for the right to health in its work for equal access to HIV treatment. In 2001, the Pretoria High Court ruled in favor of the Treatment Action Campaign and held that government restrictions on the drug nevirapine were unconstitutional, since the drug was proven to be effective but the government decided that it could only be distributed at two research sites. The Constitutional Court upheld the Pretoria ruling, stating that the government’s policy did not meet South Africa’s constitutional obligations to provide access to health care that “takes account of pressing social needs.” The government then removed nevirapine restrictions at public hospitals and clinics and created a comprehensive program to progressively realize the rights of pregnant women to prevent mother-to-child HIV transmission.

A World Health Organization official give a dose of Polio Vaccine to Somali child in Mogadishu, Somalia, Monday, Sept. 11, 2006. (AP Photo/Mohamed Sheikh Nor)
At the international level, UN Treaty Bodies, along with the UN Special Rapporteur on the right to health, implement human rights treaties. Each treaty is monitored by a committee, which evaluates governments and issues recommendations for further action. Several committees have individual complaints mechanisms, where those who claim to be victims of human rights violations can submit complaints. 

Through this series of blog posts, I will write about the usefulness of the human rights framework to global health endeavors. I strongly believe that, as the UN High Commissioner on Human Rights and WHO have stated, “The right to health is a fundamental part of our human rights and of our understanding of a life in dignity.” Physical and mental health allow adults to work and children to learn. The right to health cannot be realized without the realization of other rights that exist at the root of poverty, such as the rights to food, housing and water. Through exploring victories and pitfalls, I want to improve our understanding of how to best implement the right to health in practice. Achieving health equity worldwide requires innovative and interdisciplinary work, which necessitates a comprehensive understanding of international human rights law and governance.

Julia Kaufman is a T’18 Alumna and a 17′-18′ Human Rights Scholar at the Institute.

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