In light of the intense debate over health care in the United States and recent passage of a law addressing the health care system here, many of our readers have asked us: is health care is a human right and, if so, what does that right entail?
To answer, let’s take a step back and look at human rights in general. Human Rights are defined as the basic rights and freedoms to which all human beings are entitled. A nation is obliged to recognize the human rights of its citizens and ensure their protection. Though the right to health has been recognized in international treaties and declarations, nations (often referred to in international documents as “States”) there is debate about just what this right entails and how far a government’s responsibility for its citizens’ health extends. It is generally accepted that the right to health has two components: the right to health care and a right to health conditions.
The Universal Declaration of Human Rights (UDHR), which the majority of States in the world have signed, declares a universal right to, at a minimum, “adequate” health care. Article 25 of the UDHR states that “[e]veryone has the right to a standard of living adequate for the health and well-being of himself and of his family, including food, clothing, housing and medical care...” The UDHR is not binding as treaty law on States, but is part of international customary law and the rights contained within are legal standards for States to follow.
Similarly, the constitution of the World Health Organization (WHO), the public health arm of the United Nations, states “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 International Covenant on Economic, Social and Cultural Rights (CESCR) is arguably the most important instrument relating to the right to health and is binding on signatory States. In Article 12, the Covenant states that the parties to the Covenant “recognize the right of everyone to the enjoyment of the highest attainable standard of physical health.” The CESCR has interpreted the right to health as “an inclusive right extending not only to timely and appropriate health care, but also to the underlying determinants of health.” The States that sign the CESCR pledge to take steps to the maximum that they can to achieve the rights outlined in the Covenant, including ensuring the right to physical health. The United States has not signed the CESCR, but 160 countries, a large majority of countries in the world, are parties to the treaty and are committed to working towards progressive realization of this right.
In reviewing the language of these documents, one might wonder what “highest attainable” means, especially given the disparities in resources around the world. As Amnesty International has explained, the right to health -
“should not be seen as a right to be healthy. The state cannot be expected to provide people with protection against every possible cause of ill health or disability. Nor should the right to health be seen as a limitless right to receive medical care for any and every illness or disability that may be contracted. Instead, the right to health should be understood as a right to the enjoyment of a variety of facilities and conditions which the state is responsible for providing as being necessary for the attainment and maintenance of good health.”
So what exactly does this mean for governments?
There are generally recognized “components of the right to health care” that most advocates would agree apply to governments including: universal and equitable access, adequate health care infrastructure that is available in all geographic areas, respect for citizens’ dignity, and care that is medically appropriate and of good quality.
Some States have gone further than these general guidelines in recognizing the right to health care in their Constitutions and outlining the responsibilities of their government in protecting this right. In South Africa, for example, the right to health care is part of the nation’s Bill of Rights. Duties of the South African government include disseminating appropriate health information, refraining from denying or limiting access to health care services to anyone, and supporting people in making informed choices about their health. The new Charter of Fundamental Rights of the European Union (EU) states “everyone has the right of access to preventative health care.” The EU is to ensure “a high level of human health protection… in the definition and implementation of all Union policies.” Most industrialized nations have adopted a national health care plan ensuring access to health care for all citizens.
What about poorer countries?
Some may argue that States, especially poorer ones, will likely not have the money to dedicate to achieving such broad health care provisions for all their citizens. However, even if this is the case, a lack of available resources is never a valid excuse for a government not protecting fundamental rights, including the rights to health and healthcare. Consideration of the different status of States’ economies and societies is reflected in the concept of “progressive realization.” Furthermore, the Office of the UN Human Rights Commissioner has stated “the phrase must be read in light of the overall objective… of the Covenant which is to establish clear obligations for States parties in respect of the full realization of the rights in question.” The obligation to realize the right to health is not in any way eliminated as a result of resource constraints.
What about the United States?
While a candidate for office, President Obama stated that health care is a right and not a privilege. This position is consistent with the United States’ history of state-provided health care, a right for which both Presidents Theodore and Franklin Roosevelt advocated. Supporters of the new health care legislation state that it aims to provide more affordable, better quality healthcare to all Americans. These goals would address the universal and equitable access component of the right to health care. Many aspects of the law will not be in place until 2014, and it remains to be seen whether the law will adequately fulfill Americans’ right to health care.
 The National Health Law Program’s Right to Health Care, available at www.nesri.org/fact_sheets.../Right%20to%20Health%20Care.pdf
Prepared by International Justice Project Intern Kacey Mordecai.