Towards an Improved Understanding of the International Human Right to Health

I. Introduction

In the context of international human rights, economic, social, and cultural rights are generally distinguished from civil and political rights. Although it is often asserted that both sets of rights are interdependent, interrelated, and of equal importance, ¹ in practice, Western states and NGOs, in particular, have tended to treat economic, social, and cultural rights as if they were less important than civil and political rights. ² Civil and political rights, for example, are frequently invoked in national judicial proceedings, and several complaint mechanisms are designed to protect these rights at the international level. In contrast, economic, social, and cultural rights are often considered nonjusticiable and are regarded as general directives for states rather than rights.

Another serious obstacle to the implementation of economic, social, and cultural rights is their lack of conceptual clarity. An economic and social right that is characterized by particular vagueness is the international human right to health. It is by no means clear precisely what individuals are entitled to under the right to health, nor is it clear what the resulting obligations are on the part of states. Given these difficulties, this article seeks to further clarify the scope and implications of the right to health in order to contribute to an improved implementation of this specific right. This article will address some definitional problems when it comes to the right to health, as well as its international codification and current implementation practice. Finally, this article will outline the scope of the right to health and the ensuing state obligations.

II. The Problem of Definition

When it comes to health as a human right, there is an initial problem with regard to its definition. Specifically, there is confusion and disagreement over what is the most appropriate term to use to address health as a human right. Due to this disagreement, different terms are used by various authors. The terms that most commonly appear in human rights and health law literature are: the “right to health,” the “right to healthcare” or to “medical care,” and to a lesser extent, the “right to health protection.” ³

It has been argued that the term “right to health” is awkward because it suggests that people have a right to something that cannot be guaranteed, namely perfect health or to be healthy. It has also been noted that health is a highly subjective matter, varying from person to person and from country to country. ⁴ It is argued, therefore, that the terms “right to healthcare” or “right to health protection” are more realistic. ⁵

At the international level, however, the term “right to health” is most commonly used. This term best matches the international human rights treaty provisions that formulate health as a human right. These provisions not only proclaim a right to healthcare but also a right to other health services such as environmental health protection and occupational health services. The term “healthcare” would accordingly not cover this broader understanding of health as a human right. Thus, in practice the term “right to health” is generally used as a shorthand expression for the more elaborate treaty texts. ⁶ Using such shorthand expressions is rather common in human rights discourse; terms such as the rights to life, privacy, a fair trial, and housing have all obtained a very specific practical connotation, as has the right to health.

III. International Codification of the Right to Health

The right to health is firmly embedded in a considerable number of international human rights instruments. The right to health as laid down in the preamble to the Constitution of the World Health Organization (WHO) constitutes the point of departure on which most of the provisions in these instruments are based. ⁷ The preamble formulates the “highest attainable standard of health” as a fundamental right of everyone and defines health as a “state of complete physical, mental and social well-being and not merely the absence of disease or infirmity.” ⁸ In the same vein, most treaty provisions stipulate a right to the highest attainable standard of (physical and mental) health and include...