The Right to Health: Where Do We Stand and How Far Have We Come?

Fourteen years ago, in these pages, I reviewed a monograph by Brigit Toebes with an almost identical title to the one under consideration now (The Right to Health as a Human Right in International Law).¹ Assessing the extent of developments that have taken place with respect to the right to health in the last ten to fifteen years is the principal subject of John Tobin's excellent new book, The Right to Health in International Law. As Tobin himself says, "one of the greatest challenges in undertaking such an assessment is to navigate between the extremes of great enthusiasm and optimism, manifested by many of the proponents of the right to health, and the deeply pessimistic views of those who doubt that the concept has sufficient traction in terms of coherence, definability, political viability, economic sustainability, or justiciability."² Indeed, this volume is most certainly not a call to action and it is virtually devoid of hortatory statements with regard to the emancipatory potential of applying human rights to health. It is a carefully reasoned and dispassionate examination of the evolution of norms relating to the right to health.

Tobin is not alone in this attempt to gauge how far we have come. A flurry of books have come out in recent years regarding the right to health, including collected volumes such as Realizing the Right to Health (Swiss Human Rights Series, 2009, Andrew Clapham, Mary Robinson, Claire Mahon, and Scott Jerbi eds.) and Jonathan Wolff's 2012 monograph, The Human Right to Health (Amnesty International Global Ethics Series). Another major collected volume will be released by Oxford in 2013 to commemorate the sixty-fifth anniversary of the Universal Declaration of Human Rights.³ At the same time, at least two collected volumes on the right to health are to be published over the next twelve months assessing regional experiences in Latin America and Africa.⁴

The Right to Health in International Law has a particular focus, however, which distinguishes it from these other works. Although Tobin, who is an Associate Professor at the University of Melbourne Law School, makes some mentions of the way the right to health has been used by advocates at the domestic level and in development practice, his real focus is on international law, particularly the work of the Committee on the Rights of the Child (CRC), the Committee on Economic, Social and Cultural Rights (CESCR), and the UN Special Rapporteur on the Right to Health. This focus is a great strength of the book, as it allows Tobin to provide an in-depth analysis of the evolution of the concept and norms relating to the right to health. It also, however, leads to a partial view of the impact of developments with respect to the right to health as, in my view, the most exciting developments have been at the national level where people have used assertions of health rights to vindicate legal claims, reform legislation, and mobilize political and social movements.

The volume is organized into nine chapters, along with an introduction and conclusion. The nine chapters cover the history of the right to health; conceptual foundations; a proposed methodology for producing meaning for the right to health; the meaning of international formulation—the right to the highest attainable standard of health; the obligation to recognize the right to health by all appropriate means; the progressive obligation to realize the right; specific measures; the obligation to abolish harmful traditional practices; and the international obligations of assistance and cooperation. Each chapter includes a helpful summary of overarching points, which no doubt will be welcome to students.

Tobin devotes considerable attention to exploring the philosophical foundations of the right to health and in so doing makes an important contribution to linking the heretofore disconnected dialogues regarding the right to health in the international law and philosophy communities. He rightly notes that philosophers have been skeptical of the right...