John Harrington and Maria Stuttaford

1 Themes

In the last decade, the human right to health has moved to the centre of political debate and social policy across the globe. Civil society organizations have put this right at the heart of campaigns for health justice at national and global levels. It features prominently in the output of the United Nations (UN) and regional human rights bodies, as well as national courts and legislatures; national constitutions increasingly include explicit recognition of the right to health. Long neglected in the legal academy, many scholars now labour to develop its normative content, to contextualize its application and to evaluate it from the point of view of moral philosophy and theories of justice. This has been a remarkable transformation.

The right to health has certainly been a feature of international human rights law since the Second World War. The Universal Declaration of Human Rights (1948) states that ‘everyone 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 and necessary social services’ (Art 25.1). The Preamble to the Constitution of the World Health Organization (WHO 1948) contains a similar affirmation. These principles were given legal force in the International Covenant on Economic, Social and Cultural Rights (ICESCR) (1966).1 In Art 12.1 ICESCR States Parties ‘recognize the right of everyone to the enjoyment of the highest attainable standard of physical and mental health’. The right is similarly recognized in Art 5(e)(iv) of the Convention on the Elimination of All Forms of Racial Discrimination (1965), Arts 11.1(f) and 12 of the Convention on the Elimination of All Forms of Discrimination against Women (1979) and Art 24 Convention on the Rights of the Child (1989). However, notwithstanding this pedigree, the right to health was relegated to secondary status as a social and economic right for much of the postwar period; it was fatally identified with Soviet ideology during the Cold War. Widespread political hostility was underpinned by juristic and philosophical scepticism. For many, the very idea of a right to health suffered from vagueness, incoherence and incompleteness, especially when compared with more established civil and political rights (see Evans 2002). How could States guarantee to make everyone healthy? How could any limit be set to this obligation? What of other State priorities? Scarcity of resources was inevitable and could not be wished away by fine-sounding principles. As a result, the right played little positive role in the creation of welfare States in Europe and North America or in the endeavours of the developmental State in Africa, Asia and Latin America.

Ironically, the fortunes of the right to health have been transformed in the period after the end of the Cold War, just as State socialism was overwhelmed by a reinvigorated, globalizing capitalist system. The right seems to have been freed from the stigma of association with the Eastern Bloc. At the same time, it has gained in relevance as a response to the collective and individual trauma caused by a drastic reduction of social guarantees in many countries (MacDonald 2005). Moreover, multiple health catastrophes in the developing world – some relatively new, like HIV/AIDS, some of long standing like tuberculosis, diarrhoea and malaria – have at last called forth the concern and engagement of lawmakers, activists and professionals (Thomas and Weber 2004). The right to health has been deployed to give normative force to claims for access to essential medicines and for international solidarity in combating disease (Sell 2002).

These political changes have been supported by a number of important legal developments. In 2000, the UN Committee on Economic, Social and Cultural Rights (CESCR) published General Comment 14, an extensive and authoritative interpretation of Art 12 ICESCR. This work of elaboration and application was continued from 2002 with the appointment of Professor Paul Hunt as UN Special Rapporteur on the Right of Everyone to the Highest Attainable Standard of Health (Commission on Human Rights 2002). Most recently, in December 2008, the UN General Assembly adopted an Optional Protocol to the ICESCR allowing individuals and groups to bring complaints against States for violations of the right to health, among other social and economic rights (UN 2008). The firsthand experiences of the Special Rapporteur are considered in the third chapter of this volume. The Optional Protocol has yet to come into force, so its effects remain to be seen. We turn, therefore, to the path-breaking normative implications of General Comment 14. This develops the specific implications of the right to health as a social and economic right of progressive realization. The latter attribute does not mean that the right is emptied of ‘all meaningful content’ (CESCR 2000: para 31). On the contrary, it implies a ‘specific, continuing obligation to move as expeditiously and effectively as possible towards the full realization of Article 12’ (CESCR 2000: para 31). Detailed and regularly monitored targets are essential to this process. Moreover, although it is unfolding over time, the implementation of the right demands that certain essential steps are taken immediately. Most significant of these is the requirement that States adopt and implement a national health strategy addressing the needs of the whole population with regard to health care provision and the underlying determinants of health (CESCR 2000: para 43). A planned, systemic approach to health is thus a requirement of international human rights law. General Comment 14 goes on to state that ‘gross inequality in health status, particularly between developed and developing countries, as well as within countries, is politically, socially and economically unacceptable’ (CESCR 2000: para 38). No longer a matter of fate, health injustices must be specifically tackled.

The terms of General Comment 14 mean that the right to health cannot be reduced to a bare mechanism for reallocating resources to (or within) the health budget, vitally important as this is. It is not merely a vehicle for individual litigation in pursuit of private advantage (although this is not without significance in its implementation). Rather, as the essays in this collection demonstrate, the right to health has a powerful and wide-ranging contribution to make to law, politics and policy-making. This contribution registers in three important and interrelated ways: cognitive, archaeological and critical. The cognitive gain from the right to health arises from its coupling of law with diverse health knowledges (Bauch 1996; Harrington 1999). As has been suggested above Art 12 ICESCR is an open-textured norm. Its core term (‘the highest attainable standard of physical and mental health’) cannot be adequately defined within the self-referential terms of legal argument. Rather, the right can only gain significant content through specific standards and measures developed by health practitioners, and with the input of ordinary citizens. It is, of course, true that law and biomedicine have long been linked in this way. The application of coercive mental health legislation, for example, often depends on the opinion of one or more psychiatrists (Keywood 2003). But such cognitive openings of the law to medicine are generally quite narrowly circumscribed. The scope of Art 12 is, by contrast, much greater. As General Comment 14 states, it entails an immediate obligation to commence planning for an integrated health care system and for measures to secure the non-medical, underlying determinants of health (CESCR 2000: para 30). To this extent, the meaning of the core term is produced by the interaction of a variety of disciplines in and around public health.

The coupling of law and public health in Art 12 facilitates a kind of parallel processing, whereby measures and proposals are simultaneously subject to evaluations within each system (Luhmann 1997: 776–788). Thus, data showing health disparities as between men and women, say, register as a matter of concern within public health science. For that reason, they simultaneously constitute evidence of a violation of Art 12 (see CESCR 2000: para 57). The effect is to extend the reach of human rights law: a great deal more of the social world becomes subject to the application of legal standards; many more sources of injustice and inequality are brought to light and condemned. It also provides a normative challenge to health workers and administrators, imbuing much of their work with direct normative significance. Human rights law can thus provide an orientation to values beyond the interests of the profession and the profit-maximizing calculus of the market (Farmer 2005: 234).

The cognitive gain extends beyond the disciplinary symbiosis of law and public health. As several contributors to this volume note, the right to health includes strong obligations on States to ensure transparency, participation and accountability. These requirements, it can be argued, do not merely follow on from a predefined right to health; they are not simply the legal manifestation of a ‘top-down’ regime of consumer surveys and formulaic consultation procedures. Rather, by enabling popular participation in the definition of health needs and in the development of health policy, they contribute reflexively to the process of defining the right itself (see Teubner 1990: 27). This process is ongoing. The political opening up through the right to health thus represents a distinctive gain in knowledge and information, as the users and potential users of health services actively participate in shaping their own prospects (CESCR 2000: para 53). In other words, by virtue of its inherent openness, the right to health facilitates its own self-transformation and, thereby, the open-ended transformation of society.

The archaeological potential of the right to health is realized through a retrieval of formerly suppressed knowledges relating to human welfare. Action to improve health has long been dominated by a rigidly biomedical model, which privileges clinical care over more wide-ranging interventions (McKeown 1976). This model strongly promoted the monopolistic ambitions of the medical profession. Alternative therapy and lay healing practices were marginalized and subordinated to medicine by legislative fiat. Curative medicine has also proven to be a fertile sphere of accumulation for commercial interests (Leys 2001). Its key features – drugs, equipment and clinical services – are produced as discrete, saleable commodities. These absorb much the greater part of public and private spending on health across the globe. By contrast, as has been noted, the ‘inclusive’ right to health requires policy-makers to move beyond narrow vertical interventions aimed at specific diseases and to address the underlying determinants of ill health (CESCR 2000: para 4). This holistic approach revives the nineteenth-century tradition of social medicine associated with Rudolf Virchow, which was directed at the underlying economic and environmental causes of human morbidity (see Göckenjan 1985). It draws equally upon the primary health care movement of the 1970s, associated with the World Health Organization’s Declaration of Alma Ata (WHO 1978). The latter also promoted a holistic approach and put community participation, in developing countries and elsewhere, at the heart of health improvement strategies.