University of Essex, Colchester.U.K. 27-28 April 2004
The Secretariat of the EU-China Human Rights Network
at the Irish Centre for Human Rights would like to acknowledge the work of
Ms. Judith Bueno De Mesquita, Dr. Chang Peng’ao and Professor Emmanuel Decaux in the preparation of this discussion paper.
The EU-China Human Rights Network is a project funded by the European Commission. The opinions, findings and conclusions expressed do not necessarily represent the views of the European Commission. THE RIGHT TO HEALTH
1. Introduction The right to the highest attainable standard of health (often referred to as the “right to health”) is a fundamental human right. The right to health was first recognised in the Constitution of the World Health Organization (WHO) in 1946, and has since been enshrined in a range of international and regional human rights instruments.
The enjoyment of the right to health is affected by a number of socio-economic, political and legal factors. Significant determinants of health include poverty; discrimination; availability of affordable health services and medicines; adequate sanitation and access to clean water; budgetary allocations towards the health and other relevant sectors; government policies and national legislative frameworks, and so on. A great many national and international legal and policy developments have a bearing on the right to health, including international trade agreements, systems of intellectual property protection, and privatisation.
Taking into consideration the range of determinants of health, and relevant national, regional and international health-related developments, the EU-China Human Rights Network seminar on the right to health will focus on unpacking the meaning of the right to health and resulting obligations on States. Particular attention will be given to the protection of the right to health enshrined in the International Covenant on Economic, Social and Cultural Rights (Article 12). Relevant European Law, and domestic law and policy in EU countries and in China, will also be a focus of the seminar. In addition, specific issues of relevance to the right to health and other related human rights will be given attention, such as public health emergencies including SARS, HIV/AIDS, the roles and responsibilities of health professionals and health professional associations, and the role of social security in relation to the right to health.
2. International, European and Chinese Law
International Law: A wide range of international treaties and other international standards recognise the right to health and other related human rights.
The Universal Declaration of Human Rights recognises that: "Everyone has the right to a standard of living adequate for the health and well-being of himself and his family, including food, clothing, housing, medical care and necessary social services, and the right to security in the event of sickness and disability. Motherhood and childhood are entitled to special care and assistance" (Article 25)
The International Covenant on Economic, Social and Cultural Rights recognises “the right of everyone to the enjoyment of the highest attainable standard of physical and mental health”. The Covenant obligates States parties to take steps towards the realization of the right to health, including 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" (Article 12)
The Convention on the Elimination of All Forms of Racial Discrimination emphasizes the rights to equality and non-discrimination in the context of the right to health. It requires States Parties to "guarantee the right of everyone, without distinction as to race, colour, or national or ethnic origin, to equality before the law …in the enjoyment of …the right to public health, medical care, social security and social services" (Article 5.e)
The Convention on the Elimination of All Forms of Discrimination Against Women stipulates: "States Parties shall take all appropriate measures to eliminate discrimination against women in the field of health care in order to ensure, on a basis of equality of men and women, access to health care services, including those related to family planning." (Article 12.1). States must also " ensure to women appropriate services in connection with pregnancy, confinement and the post-natal period, granting free services where necessary, as well as adequate nutrition during pregnancy and lactation" (Article 12.2)
The Convention on the Rights of the Child stipulates that "States Parties recognize the right of the child to the enjoyment of the highest attainable standard of health and to facilities for the treatment of illness and rehabilitation of health. States Parties shall strive to ensure that no child is deprived of his or her right of access to such health care services" (Article 24.1). The Convention contains a detailed list of measures which it requires States parties to take towards this ends, including reducing infant and child mortality, providing necessary medical assistance and health care, combating disease and malnutrition, and ensuring access to health information and education (Article 24.2).
Other documents and standards which help clarify the right to health include General Comments adopted by treaty monitoring bodies, standards and bodies of principles adopted by the General Assembly, and Conventions of the International Labour Organization.1 In 2002, the Commission on Human Rights appointed a Special Rapporteur on the right to health. The reports of the Special Rapporteur help clarify the norms and obligations of the right to health, and contain information on the relationship between the right to health and, among others, poverty, discrimination, the Millennium Development Goals, sexual and reproductive health, access to drugs and violence prevention.2
European Law: In Europe, the central regional protection of the right to health is found in the European Social Charter (Revised). Part I of the Charter recognises: “Everyone has the right to benefit from any measures enabling him to enjoy the highest possible standard of health attainable”. Part II of the Charter recognises that that States must, directly or in cooperation with public or private organisations, remove causes of ill-health; provide advisory and educational facilities for the promotion of health and the encouragement of individual responsibility for health; and prevent as far as possible epidemic, endemic and other diseases, as well as accidents (Article 11). The State must also ensure the right to social and medical assistance (Article 13). The European Social Charter contains a number of other relevant provisions. For example, it recognises the right to safe and healthy working conditions. In addition to the European Social Charter, the European Convention on Human Rights indirectly gives protection to the right to health, through, among others, its provisions on the prohibition of torture and other cruel, inhumane and degrading treatment and punishment (Article 3) and the right to respect for private and family life (Article 8). Within European countries, there are additionally domestic legal standards relating to the protection of the right to health.
China: The Constitution and other law in China contain various provisions relevant to the right to health.
The Constitution of the People’s Republic of China recognises responsibilities of the national government to guarantee the health of the country's citizens. Article 21 stipulates: "The state develops medical and health services, promotes modern medicine and traditional Chinese medicine, encourages and supports the setting up of various medical and health facilities by the rural economic collectives, state enterprises and institutions and neighborhood organizations, and promotes health and sanitation activities of a mass character, all for the protection of the people's health. The state develops physical culture and promotes mass sports activities to improve the people's physical fitness." Articles 26, 42, and 45 of the Chinese constitution respectively recognise the responsibilities of the State towards environmental health, occupational health and safety and the right to material assistance from the State for the elderly, people with disabilities and people when they are ill.
The General Principles of Chinese Civil Law states: "Citizens shall enjoy the rights to life and health" (Article 98).
The Criminal Law of the People’s Republic of China (Articles 330-337)and the Law on Prevention and Cure of Contagious Diseases address the issue of the spread of communicable diseases.
China has enacted several laws and regulations regarding the activities of the medical and public health professionals and institutions.
In summary, the right to health is enshrined in international, European and Chinese law. This legal recognition of the right to health provides the foundation for the EU-China Human Rights Network Seminar on the right to health.
While the right to health is firmly protected in law, as is the case in relation to other human rights, treaty provisions on the right to health do not always give a clear, detailed picture of the norms of the right to health and obligations on States. Until recently, this was problematic. Until the 1990s, the right to health was marginalized by the international human rights community. This was part of a broader neglect of economic, social and cultural rights compared to civil and political rights. In recent years, this situation has begun to be redressed, with the international human rights community giving greater attention to economic, social and cultural rights, including the right to health. This has helped clarify the meaning of the right to health. The General Comments adopted by UN treaty bodies, in particular General Comment 14 on the right to health, contains a particularly useful and authoritative analysis of the norms of, and obligations arising from, the right to health.
The norms set out in international human rights instruments, and General Comments, can be used as a framework to assess the enjoyment of the right to health in Europe and in China, and to assess what further legislative, administrative, budgetary, judicial, promotion or other measures may be necessary.
3. The normative content of the right to health The right to health should not be understood as a right to be healthy. International human rights law is primarily concerned with the relationship between the State and individuals, and the State cannot guard against every possible cause of ill-health. For example, genetic factors, individual susceptibility towards ill-health, and the adoption of risky lifestyles play a role in determining an individual’s ill-health. The right to health can be understood as a right to “the enjoyment of a variety of facilities, goods, services and conditions necessary for the realization of the highest attainable standard of health.”
The right to health is an inclusive right, extending not only to timely and appropriate healthcare, but also to the underlying determinants of health, such as: access to safe water and adequate sanitation, healthy occupation and environmental conditions, and access to health-related information and education, including on sexual and reproductive health.
The right to health contains freedoms and entitlements. Freedoms include the right to control one's health and body and the right to be free from interference, such as the right to be free from torture, non-consensual medical treatment and experimentation. Entitlements include the right to a system of health protection that provides equality of opportunity for people to enjoy the highest attainable level of health. Specific entitlements include rights to child, maternal and reproductive health and the right to the prevention, treatment and control of diseases, including access to essential medicines.3 In its General Comment 14 on the right to health, the Committee on Economic, Social and Cultural Rights has elaborated a conceptual framework for the right to health. According to this framework, the right to health encompasses an entitlement to available, accessible, acceptable and quality facilities, goods and services associated with health and the underlying determinants of health.4
Availability means that health facilities, goods and services must be available in adequate numbers within a State.
Accessibility means that they must be accessible economically and geographically, as well as accessible to the population on a non-discriminatory basis. In addition, accessibility includes the right to seek, receive and impart information and ideas concerning health issues.
Acceptability means that all health facilities, goods and services must be respectful of medical ethics and culturally appropriate, i.e. respectful of the culture of individuals, minorities, peoples and communities, sensitive to gender and life-cycle requirements, as well as being designed to respect confidentiality and improve the health status of those concerned.
Quality means that health facilities, goods and services must be scientifically and medically appropriate and of good quality. This requires, among others, skilled medical personnel, scientifically approved and unexpired drugs and hospital equipment, safe and potable water, and adequate sanitation.
Equality and non-discrimination are fundamental elements of the right to health. Article 2.2 of the International Covenant on Economic, Social and Cultural Rights creates an obligation on States to guarantee that rights contained in this treaty will be exercised without discrimination of any kind as to race, colour, sex, language, religion, political or other opinion, national or social origin, property, birth or other status. General Comment 14 on the right to health also states that discrimination on grounds of health status, including HIV/AIDS, disability or sexual orientation.5 In the event of violation of the right to health, the victim should have access to an effective judicial or other remedy at the national and international level.6 The right to health is closely related to a number of other human rights, including the rights to food, housing, education, non-discrimination, equality, privacy, the prohibition on torture, participation, access to information, and the freedom of movement and association. The enjoyment of these human rights contributes towards the realization of the right to health, while the enjoyment of the right to health facilitates the enjoyment of these and other fundamental human rights.
Obligations on States
The right to health gives rise to a range of obligations on States. The following paragraphs elaborate some of these obligations.
Progressive Realization and Immediate Obligations: Article 2.1 of the International Covenant on Economic, Social and Cultural Rights places an obligation on States to take steps towards the progressive realization of the right to health, and other economic, social and cultural rights. Progressive realization means that States have an obligation to move as expeditiously and effectively as possible towards the realization of the right to health.
Notwithstanding the progressive nature of obligations in relation to the right to health, States parties to the International Covenant on Economic, Social and Cultural Rights nevertheless have some immediate obligations. For example, States have an immediate obligation to guarantee non-discrimination and equal treatment, and an immediate obligation to take deliberate, concrete and targeted steps towards the full realisation of the right to health.
Respect, Protect Fulfil: States have three layers of obligations towards the right to health.7
The obligation to respect the right to health means that States must refrain from interfering directly or indirectly with the right to health. For example, the State should not deny or limit equal access to medical care should not censor, limit or withhold or intentionally misrepresent health-related information; and should refrain from unlawfully polluting the air, water and soil.
The obligation to protect means that States must take measures that prevent third parties from interfering with the right to health. For example, States must ensure that the privatization of the health sector does not constitute a threat to the availability, accessibility, acceptability and qualityof health care facilities, goods and services; and States should ensure that medical practitioners and other health professionals meet appropriate standards of education, skill and ethical codes of conduct.
The obligation to fulfil gives rise to a wide range of obligation on States. Among others, it requires States to give adequate recognition to the right to health in the domestic legal and political systems and to adopt a detailed national health policy with a detailed plan for realizing the right to health.
International Assistance and Co-operation: In addition to obligations at the domestic level, the right to health gives rise to an obligation of international assistance and cooperation (ICESCR, Article 2.1). For example, States are obliged to respect the enjoyment of the right to health in other jurisdictions, to ensure that no international agreement adversely impacts on the right to health, and that their representatives in international organizations (e.g. the World Trade Organization, the World Bank and the International Monetary Fund) take due account of the right to health in all policy making matters.8
Core Obligations: At the heart of the right to health, the Committee on Economic, Social and Cultural Rights has recognized that States parties have a core obligation to ensure the enjoyment of minimum essential levels of the right to health, namely, among others, to ensure the right of access to health facilities, goods and services on the basis of non-discrimination, especially for marginalized or vulnerable groups of persons; to ensure access to basic shelter, housing, sanitation, adequate food, and water; to provide essential medicines as defined by WHO; to ensure equitable distribution of all health facilities, goods and services; and to adopt a national health strategy and plan of action designed to ensure the right to health of everyone.9 Limitations: Issues of public health are sometimes used by States as grounds for limiting the exercise of fundamental human rights. Such limitations must be in accordance with the law, including international human rights law, strictly necessary for the promotion of general welfare in a democratic society, proportional, subject to review and of limited duration. The Siracusa Principles10and General Comment 14 both provide a useful guide as to when limitations are permissible.
Obligations on other actors: While international human rights law places primary obligations on States towards the realisation of the right to health, it also acknowledges the responsibilities and important roles that can be played by other actors towards this objective.
V. Conclusion Different political, economic, social and cultural conditions within countries may have a bearing on the most appropriate measures to be taken by a State towards the realisation of the right to health. Nevertheless, the right to health is a universal entitlement, and the internationally recognised norms associated with the right to health, and corresponding obligations on States, have universal application. The EU-China Human Rights Network seminar on the right to health and right to social security, April 2004, will examine international human rights standards on the right to health, in particular ICESCR, and consider the situations in China and EU countries, including good practice and where improvements might be made.
1 A useful list of instruments and other international document is contained in the Annexes to the Preliminary Report of the UN Special Rapporteur on the right to health, E/CN.4/2003/58
2 See UN Documents E/CN.4/2003/58; E/CN.4/2004/49; E/CN.4/2004/49/Add.1; A/58/427.
3 See, for example, ICESCR Article 12.2; General Comment 14, paragraphs 11 and 18-21.
4 General Comment 14, para. 12.
5 General Comment 14, para. 18.
6 General Comment 14, para. 59-62.
7 General Comment 12, paragraphs 33-37.
8 General Comment 14, paragraphs 38-42.
9 General comment 14, para. 43.
10 Siracusa Principles on the Limitation and Derogation of Provisions in the International Covenant on Civil and Political Rights, E/CN.4/1985/4.