Evolution of the “Right to Health”
byby
Thomas A. Gionis, MD JD MBA MHA FICS FRCSThomas A. Gionis, MD JD MBA MHA FICS FRCS
United States Fulbright Scholar in LawUnited States Fulbright Scholar in Law
Chairman, American Board of Healthcare Law and MedicineChairman, American Board of Healthcare Law and Medicine
Adjunct Professor of Law, St. Thomas University School of Adjunct Professor of Law, St. Thomas University School of
LawLaw
Evolution of the Right to Health
The International Bill of Human Rights
Universal Declaration of Human Rights
International Covenant on Economic, Social and Cultural Rights
International Covenant on Civil and Political Rights
Optional Protocol to the International Covenant on Civil and Political Rights
Second Optional Protocol to the International Covenant on Civil and Political Rights, aiming at the abolition of the death penalty
Evolution of the Right to Health
The International Bill of Human Rights
Universal Declaration of Human Rights International Covenant on Economic, Social and Cultural Rights International Covenant on Civil and Political Rights Optional Protocol to the International Covenant on Civil and
Political Rights Second Optional Protocol to the International Covenant on Civil
and Political Rights, aiming at the abolition of the death penalty
WHO
World Health Organization
Evolution of the Right to Health
International Bill of Human Rights WHO
Health services ↔↔ Social goodsSocial goodsGreeks:Greeks:
Health one of the Highest GoodsHealth one of the Highest Goods(Greeks – physical)(Greeks – physical)
Importance of Health ↔↔ Individual Well-beingIndividual Well-being↔↔ Individual DignityIndividual Dignity↔↔ International SecurityInternational Security↔↔ International Human Right ?International Human Right ?
Evolution of the Right to Health
World – International - HealthWorld – International - Health: : Scope of the ProblemScope of the Problem..
To what extent can sovereign States be held To what extent can sovereign States be held responsible for health threats?responsible for health threats?
To what extent is one’s lack of health unjust?To what extent is one’s lack of health unjust?
To what extent can States be held accountable for To what extent can States be held accountable for one’s lack of health, disease or disabilityone’s lack of health, disease or disability??
Evolution of the Right to Health
World – International - HealthWorld – International - Health: : Scope of the ProblemScope of the Problem..
What is the justiciability of this right to health?What is the justiciability of this right to health?
Evolution of the Right to Health
World – International - HealthWorld – International - Health: : Scope of the ProblemScope of the Problem..
What is the justiciability of this right to health?What is the justiciability of this right to health?
What precisely do individuals have a right to, either under
an expressed or implicit right to health under international
law ?
Evolution of the Right to Health
Justiciability International Right to Health
Problem regarding justiciability = Meaning of the term “Health.”
(1). Highly subjective
(2). Individualistic; varies from person to person
(3). Variability of measures of objective standards
(4). Variability in how subjectively experienced
(5). Objectively may depend on geographic conditions(State variations)
(6). Subjectively may depend on geographic conditions(State variations)
(7). Variable constituencies
Evolution of the Right to Health
Justiciability International Right to Health(7). Variable constituencies
Does it include just physical health?
Aristotle:
“In the case of the body, excellence is health in the form of making use of the body without illness…. for many are healthy in the way said of Herodicus,
whom no one would envy for his health since [to keep it] he had to refrain from all, or nearly all, human
enjoyments.” Aristotle, On Rhetoric, New York/Oxford, 1991
(G.A. Kennedy Transaltion).
Evolution of the Right to Health
Justiciability International Right to Health
Aristotle
Health – aristocratic, not particularly democratic
Aimed at improving the health of a few [aristocratic] individuals, not an entire society as in the promotion
of public health.
Later changed as Greco-Roman empire influences.
Evolution of the Right to Health
Justiciability International Right to Health
Is the term of “International Right to Health” too vague to be justiciable?
Is the term of “International Right to Health” too broad to be justiciable?
Professor Leonard Kass, Regarding the End of Medicine and the Pursuit and Health, 40 The Public Interest 39 (1975):
Does the Right to Health include areas beyond the scope of Health?
Evolution of the Right to Health
Justiciability International Right to Health
Is an International Right to Health related to – or does it include – a component of social-well being?
Does the existence of an International Right to Health Does depend – vary – upon the development state of a sovereign?
Evolution of the Right to Health
Justiciability International Right to Health
Right to Health
Right to Health Care
Right to Health Protection
Right to Health Security
Right to Health Maintenance
Right to Adequate Standard of Health
Evolution of the Right to Health
World – International - HealthWorld – International - Health: : Scope of the ProblemScope of the Problem..
What is the justiciability of this right to health?What is the justiciability of this right to health?
What precisely do individuals have a right to, either under
an expressed or implicit right to health under international
law ?
Evolution of the Right to Health
Justiciability International Right to Health
Underlying Preconditions – Underpinnings
Does an International Right to Health include:
Prevention, treatment and control of epidemic, endemic and other diseases
Reduction Stillbirth-Rate
Reduction Maternal death rate
Reduction of Infant mortality
Evolution of the Right to Health
Justiciability International Right to Health
Underlying Preconditions – Underpinnings
Does an International Right to Health include:
Reduction of Malnutrition
Child development
Environmental Health & Hygiene
Occupational Diseases:Labor safety measures, industrial accidents, occupational diseases
Evolution of the Right to Health
Justiciability International Right to Health
Underlying Preconditions – Underpinnings
Does an International Right to Health include:
Family Planning Services
Harmful Traditional Practices
Medical Experimentation
Health of children – Immunization
Protection of Physical integrity
Evolution of the Right to Health
Justiciability International Right to Health
Underlying Preconditions – Underpinnings
Does an International Right to Health include:
Right of public health
Medical care – free basic medical care / emergency medical care
Mental health
Adequate Sanitation
Women’s Health
Evolution of the Right to Health
Justiciability International Right to Health
Underlying Preconditions – Underpinnings
Does an International Right to Health include:
Post-natal care / Abortion / HIV-AIDS
Preventive child care programs
Proper nutrition and maternal care programs
Reduction of incidence of violence against women
Sexual violence
Evolution of the Right to Health
Justiciability International Right to Health
Underlying Preconditions – Underpinnings
Does an International Right to Health include:
Maltreatment and rape of women
Abortion
Physical accessibility v. Economic accessibility
Control of food and pharmaceutical products
Assistance to mentally defective children
Evolution of the Right to Health
Justiciability International Right to Health
Underlying Preconditions – Underpinnings
Does an International Right to Health include:
Re-education of maladjusted children;
Satisfaction of the health needs of the highest risk groups
Protection against radioactive radiation transportation and dumping of nuclear waste.
Moral and Social Well-Being
Evolution of the Right to Health
Justiciability International Right to Health
Underlying Preconditions – Underpinnings
Does an International Right to Health include:
Social security and social services
Access of health facilities at work
Health insurance, and maternity protection
Nutrition, housing, sanitation, health education
Access to basic public health services
Evolution of the Right to Health
Justiciability International Right to Health
Underlying Preconditions – Underpinnings
Does an International Right to Health include:
Prison Health
Facilities for the treatment of illness and rehabilitation of health
Adequate nutritious foods and clean drinking-water
Evolution of the Right to Health
Economic, Social, and Cultural Human RightsEconomic, Social, and Cultural Human Rights
v. v.
Civil and Political RightsCivil and Political Rights
International Covenant on Economic, Social and Cultural International Covenant on Economic, Social and Cultural RightsRights
v.v.
International Covenant on Civil and Political RightsInternational Covenant on Civil and Political Rights
Evolution of the Right to Health
Economic, Social, and Cultural Human RightsEconomic, Social, and Cultural Human Rights
v. v.
Civil and Political RightsCivil and Political Rights
DistinguishableDistinguishable
InterdependentInterdependent
InterrelatedInterrelated
Equal importanceEqual importance
Evolution of the Right to Health
Civil and Political RightsCivil and Political Rights
Invoked in national judicial proceedingsInvoked in national judicial proceedings
Federal law / statutory law / common lawFederal law / statutory law / common law
Recognized national procedural remedies for complaints / Recognized national procedural remedies for complaints / protectionsprotections
Recognized international procedural remedies for complaints / Recognized international procedural remedies for complaints / protectionsprotections
““justiciablejusticiable””
Evolution of the Right to Health
Economic, Social, and Cultural Human RightsEconomic, Social, and Cultural Human Rights
Notwithstanding their acknowledgement in Notwithstanding their acknowledgement in constitutions / treaties, often found to be constitutions / treaties, often found to be non-non-justiciablejusticiable at domestic level. at domestic level.
Often, no recognized international procedural remedies Often, no recognized international procedural remedies for complaints.for complaints.
Reason for disparate treatment:Reason for disparate treatment:Ill-defined rightsIll-defined rightsCharacterized by vaguenessCharacterized by vaguenessContain a programmatic characterContain a programmatic character
(require (require positivepositive, , activeactive, , progressiveprogressive measures measures by States for by States for implementation)implementation)
Evolution of the Right to Health
Economic, Social, and Cultural Human RightsEconomic, Social, and Cultural Human Rights
Right to FoodRight to Food Right to EducationRight to Education Right to Adequate HousingRight to Adequate Housing Right to HealthRight to Health
Evolution of the Right to Health
Start of the Evolution of the Right to HealthStart of the Evolution of the Right to Health::the Public’s Healththe Public’s Health
Health, as a human right, has its foundation Health, as a human right, has its foundation within the public health movement.within the public health movement.
State’s recognition / obligation for necessity of:State’s recognition / obligation for necessity of:SanitationSanitationHygieneHygieneWater supply constructionWater supply construction
Evolution of the Right to Health
Start of the Evolution of the Right to HealthStart of the Evolution of the Right to Health::the Public’s Healththe Public’s Health
Pre-19th Century Pre-19th Century
Draining systems of Egypt, India, the Cretan-Mycenaean Draining systems of Egypt, India, the Cretan-Mycenaean culture, Troy, Inca societyculture, Troy, Inca society
Middle ages of Europe (disease prevention/sanitary Middle ages of Europe (disease prevention/sanitary protections of the community)protections of the community)
Evolution of the Right to Health