Although the foundations for modern public health were laid in earlier centuries, it really came into existence during the Industrial Revolution in 19th century Europe. Industrialised society, with its unhealthy working and living conditions, created serious health problems necessitating public health measures. Through pressure from an important public health movement in England, a Public Health Act was adopted, which foresaw a system with boards of health.
At the international level, the formulation of health as a human right was initiated at the United Nations Conference in 1945. A special memorandum which declared that ‘Medicine is one of the pillars of peace’ led to the insertion of a reference to health in Article 55 UN Charter and to the adoption of a declaration on the establishment of an international health organisation. The World Health Organisation (WHO) came into existence in 1946. It was the first organisation to formulate an explicit ‘right to health’ in the Preamble to its constitution. The WHO text inspired the definition of a right to health in the various human rights treaty provisions discussed below.
It is difficult to pinpoint exactly what the right to health entails, but specific elements that constitute the core content of the right to health have been identified by scholars, activists and relevant UN bodies. States must guarantee these elements under all circumstances, regardless of their available resources.
Inspiration for the core content of the right to health derives from the Health for All and Primary Health Care strategies of the WHO, which stipulate that ‘there is a health baseline below which no individuals in any country should find themselves’. Thus, irrespective of their available resources, states should provide the following basic services: a) access to maternal and child health care, including family planning; b) immunisation against the major infectious diseases; c) appropriate treatment of common diseases and injuries; d) essential drugs; e) adequate supply of safe water and basic sanitation; and f) freedom from serious environmental health threats. In addition to the scope of core content, a number of guidelines constitute the framework of the right to health: a) availability of health services; b) financial, geographic and cultural accessibility of health services; c) quality of health services; and d) equality in access to available health services.
In order to clarify what the normative content of the right to health entails, it is useful to identify the obligations of states in relation to the right to health. The tripartite typology of obligations demonstrates that the right to health gives rise to both the negative obligation to ‘respect’, as well as the positive obligations to ‘protect’ and to ‘fulfil’ (see I§1.F). The obligation to respect the right to health includes the obligation to respect equal access to health services, on the one hand, and the obligation to refrain from activities that are detrimental to health such as environmental pollution, on the other. The obligation to protect the right to health includes the obligation to take legislative and other measures to ensure that people have equal access to health services provided by third parties, and the obligation to protect people from health infringements by third parties. Finally, the obligation to fulfil includes the adoption by the state of a national health policy, and that it devotes a sufficient percentage of its available budget to health.
A. Standards
The right to health has been included in a number of human rights treaties. At the UN level, the provisions of several instruments deal with the right to health. The main ones are Article 25 UDHR; Article 12 ICECSR; Article 12 CEDAW; Article 24 CRC; Article 5 CERD; Article 28 CMW; and Article 25 CRPD.
Article 12 ICESCR states that everyone has the right to ‘the highest attainable standard of physical and mental health’. Article 12(b) identifies four steps the state has to take in order to promote conditions in which people can lead a healthy life. These include, inter alia, the improvement of environmental hygiene, preventive health care and the prevention of occupational diseases. Thus, Article 12 ICESCR acknowledges that the right to health includes a wide range of socio-economic factors which are underlying determinants of health, such as food, housing, potable water, safe and healthy working conditions, as well as a healthy environment.
Article 12 CEDAW stipulates the right to health care of women. The text focuses on equal access to health care facilities for women. Pre and post-natal care are specially emphasised in the second paragraph, services which states parties are to provide for free. Article 11(1)(c) CEDAW refers to ‘the right to protection of health and safety in working conditions [?]’. Article 14 CEDAW deals with the situation of rural women. According to paragraph 2(d), states shall ensure that rural women have ‘access to adequate health care facilities, including information, counselling and services in family planning’. The text in this Convention is narrower than Article 12 ICESCR in that it only refers to health care services and not health-related issues.
Article 24 CRC contains an elaborate provision on the right to health of children. Similar to Article 12 ICESCR, it recognises the right to ‘the highest attainable standard of health’ of children. The article is broader than Article 12 CEDAW in that it refers not only to a right to health care facilities, but also to adequate food, drinking water, environmental health, access to information and prohibition of traditional harmful practices.
Article 5(e)(iv) CERD establishes the right of everyone to enjoy, without distinction as to race, colour, or national or ethnic origin, inter alia, the right to public health and medical care.
Article 27 CMW requires states parties to provide emergency medical care to migrant workers and members of their families.
Article 25 CRPD mandates non-discriminatory treatment and specialised services for disabled people. The Convention requires early intervention and treatment of disabilities, and further, that health facilities be as close as possible to the communities of disabled people.
In addition, the Convention Relating to the Status of Refugees sets out, in Article 23, the obligation for states to accord to refugees in their territories ‘the same treatment with respect to public relief and assistance as is accorded to their nationals’. Some protection of the right to health is also envisaged in the Geneva Conventions and Additional Protocols, such as the obligation to provide medical care for the wounded (Common Article 3(2) and Article 7 of Protocol II) and Article 12 of the First and Second Geneva Conventions.
Several other instruments adopted under the framework of the UN provide for the right to health, such as the Declaration on the Protection of Women and Children in Emergency and Armed Conflict; the Standard Minimum Rules for the Treatment of Prisoners; the Body of Principles for the Protection of All Persons Under Any Form of Detention or Imprisonment; the Declaration on the Rights of Mentally Retarded Persons; the Declaration on the Rights of Disabled Persons; and the Declaration on the Rights of Indigenous Peoples.
At the regional level, the right to health has been included in human rights instruments of all three regional organisations. At the Inter-American level, the American Declaration of the Rights and Duties of Man contains the right to health (Article XI). As has been mentioned, the Inter-American Commission uses the Declaration to supervise all members of the OAS including those that are not parties to the American Convention. In addition, when preparing state reports, the Commission sometimes includes a chapter on the enjoyment of economic, social and cultural rights, issuing recommendations in this regard (see, e.g., Mexico, Country Report 1998). In addition, Article 10 Protocol of San Salvador specifically deals with the right to health. This article is notable for many reasons. Firstly, the first paragraph states that ‘Everyone shall have the right to health [?].’ This is the first article that uses the term ‘right to health’. Secondly, Article 10(1) not only recognises that everyone shall enjoy physical and mental well-being but also social well-being. Thirdly, Article 10(2) mentions six concrete steps that the states parties must undertake in order to guarantee the right to health. In addition, the right to a healthy environment is to be found in a separate provision (Article 11 Protocol of San Salvador).
At the African level, the right to health is found in Article 16 ACHPR. The first paragraph of Article 16 is similar to Article 12 ICESCR in that it recognises that everyone ‘shall have the right to enjoy the best attainable state of physical and mental health’. However, unlike Article 12(1) ICESCR, this article does not enumerate clear undertakings for the state. In addition, the African Charter on the Rights and Welfare of the Child includes the right to health (Article 14).
In the European system, Article 11 European Social Charter deals with the right to health. This article differs from the above-mentioned articles:
With a view to ensuring the effective exercise of the right to protection of health, the Parties undertake, either directly or in co-operation with public or private organisations, to take appropriate measures designed inter alia:
A. To remove as far as possible the cause of ill-health;
B. To provide advisory and educational facilities for the promotion of health and the encouragement of individual responsibility in matters of health;
C. To prevent as far as possible epidemic, endemic and other diseases as well as accidents.
A few comments on this article are necessary. First, the references to individual responsibility in health matters and to the co-operation with public or private organisations are unusual. Secondly, the three state obligations mentioned are very vague. The term ‘as far as possible’ used in paragraphs 1 and 3 weakens the mandatory character of the obligation. Thirdly, no references are made to child health, occupational health and to environmental health. A positive feature of the text, however, is the provision of advisory and educational facilities mentioned in paragraph 2. The right to health at the European level is also provided by Article 3 of the Convention on Human Rights and Biomedicine, which enshrines equal access to health care.
B. Supervision
The main supervisory body concerning economic, social and cultural rights at the universal level, the Committee on Economic, Social and Cultural Rights, will hopefully soon have the legal prerogative to receive individual complaints upon the entry into force of the Optional Protocol to the IESCR. Currently, the Committee carries out supervision by means of examining states’ reports and providing recommendations to states parties (‘concluding observations’) on the implementation of the right to health. In addition, the Committee has contributed greatly to the understanding of this right, in particular through its General Comment 14 on the right to the highest attainable standard of health.
Through the Optional Protocol to CEDAW, it is possible to submit complaints by or on behalf of individuals and groups for alleged violations of the right to health contained in the CEDAW. The only complaint decided by the Committee to date is Szijjarto v. Hungary- involving the forced sterilization of a Roma woman. The Committee found that Hungarian medical staff failed to give a sufficient amount of information about the consequences of sterilisation to the applicant. It was therefore impossible to obtain her informed consent to proceed with the operation – constituting a violation of Article 12. Under the integrated approach, the Human Rights Committee has dealt with the right to health in its case-law, even though the ICCPR does not explicitly include the right to health (see, e.g., Kelly v. Jamaica and Lewis v.Jamaica).
In addition to the bodies described above, several international institutions are charged with protecting the right to the highest attainable standard of health. The most prominent is the WHO which has several programmes and standards in place that deal with, inter alia, preventing the use of tobacco, promoting breastfeeding and preventing and treating HIV/AIDS. The WHO sought an advisory opinion of the International Court of Justice (seeAdvisory Opinion on the Legality of the Use by a State of Nuclear Weapons in Armed Conflict (1996)). The Court found that it was not able to give the advisory opinion because, in its view, the question did not arise within the scope of the activities of the organisation. While WHO is authorised to deal with the effects on health of the use of nuclear weapons, the question put to the Court related not to such effects but rather to the legality of the use of such weapons in view of their health and environmental effects. The World Bank has adopted a comprehensive ‘Strategy for Health, Nutrition, and Population Results’ to reinforce its work to improve the health conditions of the people in client countries, particularly the poor and the vulnerable, in the context of its overall strategy for poverty alleviation. Health issues also come to play in the work of the World Trade Organisation (WTO). An example is the Agreement on the Application of Sanitary and Phytosanitary Measures which forms part of the WTO body of law aimed to prevent states from using sanitary measures as a pretext for banning or inhibiting foreign imports.
At the regional level, the Inter-American Commission had until recently only dealt with the right to health under the American Declaration of the Rights and Duties of Man. This is because the Commission was reluctant to invoke Article 26 ACHR as it is a general clause, which does not enumerate any individual economic, social and cultural rights, and which refers to the ‘progressive nature’ of these rights. However, in a recent case, the Commission decided that the right to health is protected by the Convention under Article 26 and, consequently, that the Commission is empowered to hear individual cases of violations (see, e.g., Miranda Cortez et al. v. El Salvador (Case 12.249)). The Commission stated that ‘although establishing violations to Article 10 of the Protocol of San Salvador is beyond our competence, [...] the standards referring to the right to health will be considered in our analysis of the merits of the case, pursuant to Articles 26 and 29 of the Convention.’ The significance of this case of direct enforceability of the right to health derives from the fact that the Commission is taking firm steps towards achieving the effectiveness of economic, social and cultural rights. Thus, the same criterion could be applied to other social rights implicit in Article 26 ACHR.
Although Article 10 Protocol of San Salvador explicitly sets forth the ‘right to health’ for all individuals, the Protocol only provides the possibility of submitting individual petitions before the supervisory organs of the Inter-American system with respect to the right to education and the right to form and join trade unions.
The Inter-American Court has taken a different approach to that of the Commission. The Court has relied on Article 2 ACHR (the duty to adopt domestic laws in accordance with Convention rights) to examine whether, and to what extent, national legislation protects a general right to health. In Albán-Cornejo et al. v. Ecuador the Court not only linked the right to health with Article 10 Protocol of San Salvador, but more innovatively with the Convention’s rights to life and humane treatment. It concluded that the Convention, under Article 2, requires a state to adopt legislation that safeguards the right to medical services. Without appropriate legislation the state acts inconsistently with the rights to life and humane treatment.
In the African system, communications alleging violations of economic, social and cultural rights have often been presented to the African Commission in association with other violations. A majority of the Commission’s findings in this regard have arisen in the consideration of deportation and nationality-related cases. Examples include the Mauritania cases, which deal with racial discrimination against the black Mauritanian community by the ruling Beydane community. The Commission found, inter alia, that the starvation of black prisoners, and depriving them of blankets, clothing and health care violated Article 16 of the African Charter (see, e.g., Malawi African Association, Amnesty International, Ms. Sarr Diop, Union Interafricaine des Droits de l’Homme and RADDHO, Collectif des Veuves et Ayants-droit and Association Mauritanienne des Droits de l’Homme v. Mauritania, Communications 54/91, 61/91, 98/93, 164/97-196/97 and210/98). The Commission has also found a violation of Article 6 where a state party by reason of corruption and mismanagement had failed to provide basic services necessary for basic health, including safe drinking water, electricity and basic medicine for its health facilities (see, e.g., Free Legal Assistance Group, Lawyers’ Committee for Human Rights, Union Interafricaine des Droits de l’Homme, Les Témoins de Jehovah v. Zaire, Communications 25/89 and 47/90 and The Social and Economic Rights Action Centre et al. v. Nigeria, Communication 155/96).
In the European system, the European Court has dealt with the right to health under political and civil rights, such as, for example, the right to non-discrimination or the right to privacy. This was done in the Guerra v.1. The Court found that the failure of Italy to prevent a chemical plant from releasing dangerous toxic fumes amounted to a violation of the right to privacy (Article 8 ECHR) of those injured by the gases. Another example isEnhorn v. Sweden. Here the Convention right to liberty was at stake. The Court examined Swedish legislation permitting the compulsory isolation of a person with HIV/AIDS. The Court observed that the detention of an individual with an infectious disease will be lawful if the spread of the disease is harmful to public health and safety and if detention constitutes the last resort in stopping that spread. On the specific facts of the case, however, the Court found that the compulsory isolation of the applicant was not a last resort in order to prevent him from spreading the HIV virus after less severe measures had been considered and been found to be insufficient to safeguard the public interest. The Swedish authorities had accordingly unlawfully deprived the applicant of his liberty.
The European Committee of Social Rights has taken a firm stance on the right of foreign nationals to medical services. The Committee held, in International Federation of Human Rights Leagues v. France, as a principle of law, that any ‘legislation or practice which denies entitlement to medical assistance to foreign nationals, within the territory of a State party, even if they are there illegally, is contrary to the [European Social] Charter.’ On the facts of the case, the Committee found a violation of Article 17 ESC – the right of children to protection – after changes to French legislation curtailed the access of children of illegal immigrants to medical services.
In 2002, the UN Commission on Human Rights appointed a Special Rapporteur on the Right of Everyone to the Enjoyment of the Highest Attainable Standard of Physical and Mental Health. The mandate of the Rapporteur was assumed and extended by the Human Rights Council. The Rapporteur monitors, amongst other things, the situation of the right to health throughout the world. The Rapporteur identifies general trends related to the right to health, undertakes country visits and communicates with states and other concerned parties with regard to alleged cases of violations of the right to health. Furthermore, the Rapporteur promotes the full realization of the right to health through dialogue with relevant actors by participating in seminars, conferences and expert meetings (see Human Rights Council Resolution 6/29). In his 2008 report to the Human Rights Council the Special Rapporteur made an effort to reconceptualise the role of health care systems in society. National health care systems have been defined by the Rapporteur as a ‘core social institution’ in the same way a ‘justice system’ is a core social institution. This enables the Rapporteur to make the following point: the right to the highest attainable standard of health is necessary for a functioning health care system, in the same way that the right to a fair trial is necessary for a functioning justice system. Although both systems can operate without these guarantees, human rights frame policy decisions and government action – highlighting what is necessary or harmful in each system.
There have also been notable cases on the protection of the right to the highest attainable standard of health at the domestic level, such as the landmark decision of the South African Constitutional Court in Minister of Health and Others v. Treatment Action Campaign (TAC) and the Supreme Court of India case of Paschim Banga Khet Mazdoor Sanity and Others v. State of West Bengal and Anor.
BIOETHICS AND HUMAN RIGHTS: THE CHALLENGE OF UNIVERSAL STANDARD SETTING IN THE CONTEXT OF THE HUMAN GENOME PROJECT
The advance in the fields of molecular biology and genetics are of such great significance that they affect not only all the spheres of ordinary life but also threaten to compromise the destiny of the human species. The ethical reflections raised around these questions have been called ‘bioethics’.
The confrontation between the individual’s intrinsic value as a person and the implicit risk associated with the advance of science in challenging this value is especially visible in reference to the International Human Genome Project (IHGP), launched in the 1990s, whose objective was to identify the map of the structure of the human genome and to sequence human DNA. The map has been completed and it has been agreed that it will be freely accessible to any scientist of the world. Progress in the field of genetics is claimed as being necessary for a healthier population as well as in the cure of fatal diseases. However, it is clear that research in this field may put at stake the very survival of human beings as species.
The impact of the new technologies raises questions of potential new sources of discrimination, especially differences between poor and rich. In this context the obligation of the state to ensure that medical practitioners and other health professionals meet appropriate standards of education, skill and ethical codes of conduct is particularly relevant. Particular emphasis has been given to the right to enjoy the benefits of scientific progress and liberalisation of trade in confrontation with intellectual property rights and the question of patenting.
Prohibiting research and application in this sphere is probably not a realistic/desirable solution; instead, regulating how its fruits are to be utilised seems to be increasingly necessary to prevent permanent damage to individuals, groups of individual and/or humanity as a whole.
Since the abstract concept of ‘human dignity’ seems to be the only consensual one, bioethics researchers have sought this as a natural link into the field of human rights. Thus, the normative instruments that have been developed so far in response to this scientific revolution have focused on the protection of human rights.
The UNESCO Declaration on Human Genome and Human Rights 1997 endorsed by the UNGA in 1998, tries to provide a starting point for this discussion at the international level. The first legally binding international instrument in this field is the Convention for the Protection of Human Rights and Dignity of the Human Being with Regard to the Application of Biology and Medicine. This regional instrument was adopted by the Council of Europe in 1997. Standards have also been adopted by the European Union, though these are limited to regulation of specific existing practice and do not tackle the issue of general scientific advances.
In the case of a potential conflict between the preservation of the human being from harm and other intervening interests, preference should be given to the preservation and protection of the human person. One drawback inherent in the human rights approach that should also be considered is the lack of global participation in the formation of the required standards. This could potentially be the source of new conflict, affecting the implementation of such principles if they are seen as ‘alien’ and/or ‘imposed’.
Elvira Dominguez