An introduction to the right to health
June 2006
What is the right to health?
Article 12 of the International Covenant on Economic, Social and Cultural Rights (ICESCR) defines the right to health as “the right of everyone to the enjoyment of the highest attainable standard of physical and mental health”.
While the right to health includes the right to health care, it goes beyond health care to encompass the underlying determinants of health, such as safe drinking water, adequate sanitation and access to health-related information. The right includes freedoms, such as the right to be free from discrimination and involuntary medical treatment. It also includes entitlements, such as the right to essential primary health care. The right has numerous elements, including child health, maternal health and access to essential drugs. Like other human rights, it has a particular concern for the disadvantaged, the vulnerable and those living in poverty. The right requires an effective, inclusive health system of good quality.
International human rights law is realistic and recognizes that the right to the highest attainable standard of health for all cannot be realized overnight. States have an obligation to give effect to the right to health in the context of the resources available to them, and through making a concerted effort to operationalise the right over a period of time. Although qualified in this way, nonetheless the right to health imposes some obligations of immediate effect, such as non-discrimination, and the requirement that the State at least prepares a national plan for health care and protection.
Setting the context: legal sources of the right to health
The right to the highest attainable standard of health is codified in numerous legally binding international and regional human rights treaties. The right, or other health-related rights, are also enshrined in over 100 constitutions worldwide.
In international law, the right to health was first recognised in the WHO Constitution in 1946: ‘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’. In 1948 the Universal Declaration of Human Rights included the right to health as ‘Everyone has the right to a standard of living adequate for the health of himself and of his family, including food, clothing, housing and medical care and necessary social services’. These documents are not legally binding but are political promises, which States try to uphold .
Legally binding recognitions of the right to health have been made under international law in several instruments, including ICESCR and the Convention on the Rights of the Child. Regional treaties, including the European Social Charter, the African Charter on Human and Peoples’ Rights and the Additional Protocol to the American Human Rights on the Area of Economic Social and Cultural Rights have also addressed the right to health. At the international and regional level monitoring and accountability for the legal obligations created under these legal instruments is performed by a variety of quasi-judicial bodies such as the Committee on Economic, Social and Cultural Rights (CESCR), courts and political bodies. The CESCR monitors compliance by States with the ICESCR – with parties to the Covenant submitting periodic reports on implementation of the ICESCR, dialogue between the CESCR and State concerned, report reviews and opportunities for engagement by civil society. The CESCR issues Concluding Observations including recommendations to the State concerned.
In national law, the right to health is either recognised as a specific piece of domestic law or is recognised through a legislation regulating the provision of healthcare. Examples include Chapter II, Title I of the 1988 Brazilian Constitution was dedicated to social rights, including the right to health or a right to health care; and the 1996 South African ‘Bill of Rights’ which expressly recognises the right to health.
The Right to Health and Working Together
Under international human rights law, developed states have some responsibilities towards the realization of the right to health in poor countries. Article 2(1) of the ICESCR establishes that the implementation of the rights recognised in the Covenant is undertaken “individually and through international assistance and co-operation”. This has fuelled an emerging position in international human rights law literature that international assistance and cooperation is not simply a moral duty but is a legal duty which is grounded in binding international legal instruments. This obligation can be seen to reinforce the political commitments of development States towards the achievement of the Millennium Development Goals and objectives of international conferences, such as the International Conference on Population and Development (Cairo, 1995).
National Medical Associations and the Right to Health
As providers of health services, health professionals play an indispensable role in the promotion and protection of right to health.
They have played an important role in helping document and redress violations of human rights, such as violence and torture. Medical associations, as associations that represent doctors, have an important role to play in protecting members who seek to prevent violations and in acting when members commit violations.
Doctors and medical associations also have a positive duty to do something. For instance, doctors working in the public sector are at the forefront of the problems faced by a public health system and often witness how resources affect the provision of medical care to patients. Action by medical associations or doctors to fight for more resources, or to ensure that resources are distributed in a manner that reaches the most vulnerable populations, have played an important role in supporting the realisation of the right to health.
The resources available to national medical associations vary: while some are well resourced, others may have fewer resources to support such activities. But partnerships between NMAs in developed and developing countries might offer a way ahead. Examples of good practice include:
- Twinning or less formal models of capacity building support;
- The development of human rights guidance and educational material;
- Regional or cross-border provision of temporary personnel and services;
- Facilitation of broader health professional links and exchanges;
- Partnerships built for addressing health issues which affect more than one country, eg skills drain.
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