1.  Content/Scope

7  The right to health, as codified in Article 12 ICESCR, is a fundamental human right. It encompasses two broad components: health care and underlying determinants of health (CESCR General Comment No. 14 para. 11). As such, it is inextricably linked to other human rights, such as the right to life, adequate housing, an adequate standard of living, education etc (right to housing; right to education). Article 12(2) ICESCR lists a number of elements that are explicitly included such as maternal, child, and reproductive health, occupational health, the prevention, treatment, and control of diseases, and access to health facilities, services, and goods.

8  In general terms, the right to health demands that health services are available, accessible, acceptable, and of quality, also referred to as the AAAQ framework (CESCR General Comment No. 14 paras 12–21). That means health services should be available in sufficient quantity within the State party (CESCR’General Comment No. 14’ para. 12(a); CESCR General Comment No. 22 para. 12); physically, geographically, and economically accessible on a non-discriminatory basis (CESCR General Comment No. 14 para. 12(b)i–iv; CESCR General Comment No. 22 paras 15–19); acceptable in the sense of respectful of medical ethics and patient confidentiality, culturally appropriate, and sensitive to gender, age, disability, and life-cycle requirements (CESCR General Comment No. 14 para. 12(c); CESCR General Comment No. 22 para. 20); and of good quality meaning evidence-based, scientifically and medically appropriate, and up-to-date (CESCR General Comment No. 14 para. 12(d); CESCR General Comment No. 22 para. 21).

9  Availability demands, first, suitable and sufficient resources and, second, the willingness and capacity to utilize them appropriately and effectively (Saul 996). Economic accessibility or affordability requires that payment for health services and underlying determinants should be based on the principle of equality to ensure that poorer households are not disproportionately burdened with health expenses (CESCR General Comment No. 22 para. 17). Below, we will see that particularly the unavailability or unaffordability of health care services has been the subject of judicial scrutiny by domestic courts.

2.  State Obligations

10  The right to health is not a right to be healthy but encompasses a number of freedoms and entitlements so that individuals are able to attain their highest possible standard of health (CESCR General Comment No. 14 paras 8–9). States parties are under a duty to progressively realize the right to health to the maximum of their available resources, including through international assistance and cooperation, using all appropriate means (Art. 2(1) ICESCR; CESCR General Comment No. 3 para 1). As such, access to health facilities, goods and services will vary among States parties depending on numerous factors, including a state’s developmental level. The Committee has noted, though, that there is a strong presumption that retrogressive measures, measures which take a step back in fulfilling the ICESCR’s rights, are not permissible under the ICESCR (CESCR General Comment No. 14 para. 32). Simultaneously, states parties have immediate right to health obligations, such as the prohibition of discrimination as found in Article 2(2) and Article 3 of the ICESCR, and so-called ‘core obligations’, which ensure the satisfaction of, at the very least, the minimum essential levels of the Covenant’s rights and without which the rights would be devoid of any meaning or relevance (CESCR General Comment No. 3 para. 10). Guided by the Alma-Ata Declaration (International Conference on Primary Health Care 1978), states’ right to health core obligations include, amongst others, the obligation to ensure: access to health facilities, goods and services without any form of discrimination, especially for vulnerable and marginalized groups; equitable distribution of health facilities, goods, and services; access to the minimum essential food so as to ensure freedom from hunger; access to basic shelter, housing, and sanitation, and an adequate supply of safe and potable water; and access to essential medicines (CESCR General Comment No. 14 para. 43). These core obligations are prioritized state obligations under the ICESCR (CESCR General Comment No. 3 para. 10; CESCR General Comment No. 14 para. 47; Forman (2016) 536–38).

11  States parties’ obligations are conceptualized into three categories: a duty to respect, meaning states must abstain from interfering directly or indirectly with individuals’ enjoyment of the right to health; a duty to protect, that is prevent third parties from interfering; and a duty to fulfil, that is adopt appropriate measures, whether legislative, administrative, budgetary, or judicial, towards the full realization of the right to health (CESCR General Comment No. 14 para. 33; CESCR General Comment No. 22 paras 39 et seq). As such, states parties have a significant margin of discretion in determining the most appropriate and feasible measures to implement the right to health at national level (CESCR General Comment No. 3 para. 4; CESCR General Comment No. 14 para. 53). The CESCR recommends legislative implementation finding that domestic incorporation of the right to health can significantly enhance accountability in case of possible violations (CESCR General Comment No. 14 paras 36, 59). Although health rights may be protected in national laws and policies, constitutional protections are typically more difficult to repeal. Moreover, some argue that the constitutional protection of the right to health has a practical beneficial effect on populations’ health (Kavanagh 355–56). However, in that regard it must also be noted that countries without any constitutional health-related rights may still have high-quality health care systems (Flood and Gross 66; Heymann 652).

12  The value of a human rights-based approach to health lies in that it acknowledges that individuals who need health care are rights holders with legally binding entitlements, while crystallizing—new—state obligations that can be enforced by courts (Kavanagh 333). Such an approach goes beyond charity and humanitarianism. The ‘legalization’ or ‘judicialization’ of the right to health has become most prominent in the last two decades. Particularly newly created constitutions in Latin America and Southern Africa have inclusive health—and other social—rights in response to legacies of dictatorships and apartheid that resulted in great disparities between the rich and poor (Flood and Gross 64). It is especially in response to the HIV/AIDS pandemic that domestic litigation has played a key role (Cabrera and Ayala).

1.  No Constitutional Health-Related Rights

19  High-income countries in particular have been slow to implement the right to health. The assumption, sometimes, is that the right to health is realized through the creation of a universal health care system. Without constitutional protection, health rights litigation can be limited in scope or even nearly non-existent. Examples include the United States, where courts have largely rejected rights-based claims to health care (Hoffman 355–57), but also New Zealand, where individuals rarely seize the courts to challenge denials of access to health care (Manning 34).

20  By contrast, even though Canada’s Charter of Rights and Freedoms (1982) (Can) does not include the right to health—or medical—care, individuals have taken to the courts to litigate health rights through various means. Health rights litigation has had ‘mixed success in Canadian courts, making it hard to neatly encapsulate the content of the ‘right’ to health’ (Flood 86). Although the Supreme Court of Canada (Cour suprême du Canada) acknowledged the possibility that the right to life, liberty, and security of the person (s 7 of the Constitution of Canada (Canadian Constitution Acts, 1867 to 1982): 1 January 1982 (as Amended to 2011)), may confer positive obligations onto the government (Gosselin v Quebec (Attorney General) (2002) (Can)), the courts have generally been restrained in their approach to the right to life, rarely reading substantive, positive health rights into it (Flood 87). A notable exception to such restraint is Eldrige v British Columbia (Attorney General) (1997) (Can), where the failure to provide sign language translation in hospitals was found to be a violation of equality rights in Section 15 of the Canadian Charter of Rights and Freedoms (1982) (Can). The most success, however, has been as regards negative health rights claims, challenging government restrictions on individual liberty. In Chaoulli v Quebec (2005) (Can) the plaintiffs argued that the ban on private health insurance in the face of long wait times was a violation of their rights to life and security under Quebec’s Charter of Human Rights and Freedoms (1975) (Can) and Section 7 of the Canadian Charter of Rights and Freedoms (1982) (Can). The Supreme Court in a four-three decision agreed and renounced the prohibition on the basis of the Quebec Charter, while it was a tie—three-three with one judge not ruling—on the question whether there was a violation of Section 7 of the Canadian Charter of Rights and Freedoms (1982) (Can). In essence Chaoulli legitimized a two-tiered health care system, a ruling that has been criticized (Flood 94–96), although legally speaking the impact of the judgment is limited only to the Quebec province.

2.  Non-Justiciable Constitutional Health-Related Rights

21  Some constitutions do contain health-related rights but consider these to be non-justiciable. The justiciability of socio-economic rights as been a contentious issue ever since the emergence of such rights (Cabrera and Ayala). It is closely related to the traditional dichotomy that views civil liberties and political rights as negative rights on the one hand, and socio-economic rights as positive rights on the other. Socio-economic rights are considered core elements of national policy with budgetary implications and, in light of the principle of separation of powers, it is then considered inappropriate for the non-democratically elected judiciary to adjudicate such cases. Yet this conceptual distinction between the two sets of rights is oversimplified and outdated. Human rights are universal indivisible, interdependent and interrelated (Vienna Declaration and Programme of Action, UN World Conference on Human Rights para. 5).

22  Where the right to health is non-justiciable it can be aspirational rather than guaranteed. For example, the Constitution of the Republic of Uganda: 8 October 1995 (as Amended to 2017) states that ‘all Ugandans enjoy rights and opportunities and access to … health services’ and specifies that the state shall ‘take all practical measures to ensure the provision of basic medical services to the population’ (National Objectives and Directive Principles of State Policy, Arts XIV(b) and XX). Yet these National Objectives and Directive Principles of State Policy, being located outside of the substantive sections of the Constitution, reflect a commitment but are not considered legally binding rights conferring obligations onto the State (Malagala 94). As such, they are non-justiciable, meaning that an alleged violation cannot be reviewed before domestic courts.

23  The absence a justiciable right to health does not necessarily say anything about the state of a country’s public health system. For example, Sweden has a robust public health care systems even if faced with challenges such as growing demand and diminished capacities. Article 2 of the Constitution of the Kingdom of Sweden, The Instrument of Government: 28 February 1974 (as Amended to 2009) (Swed) views the right to health as programmatic, that means it is ‘incumbent upon the public institutions … to promote social care and social security and good conditions for health’. It is not considered an individual, justiciable right. The role of—constitutional—jurisprudence in the context of health care is therefore secondary, although there has been a growing role for European law characterized as ‘quasi-constitutional protection emerging around health rights’ (Lind 76). Similarly, Article 22 of the Constitution of the Kingdom of the Netherlands: 24 August 1815 (as Amended to 2017) (Neth) states that ‘the authorities shall take steps to promote public health’. The right’s programmatic nature means it is considered having a weaker standing compared to other constitutionally protected individual rights (Den Exter 194). Moreover, because the Constitution prohibits constitutional judicial review (Constitution of the Netherlands, Art. 120), constitutional right to health jurisprudence is absent. Individuals seeking access to health care services have, though, on occasion successfully been able to invoke international and European—human rights—law (Den Exter 200–5).

3.  Overcoming Non-Justiciability

24  In other countries, domestic courts have overcome the arguments raised against the justiciability of the right to health in different ways.

4.  A Justiciable Constitutional Right to Health—South Africa

34  The South African experience is markedly different. The South African Constitution explicitly entrenches justiciable health-related rights, including for children and prisoners (Constitution of South Africa, ss 12, 27, 28(1)(c), and 35(2)(e)). Even so, it has far less right to health-related jurisprudence, especially when compared to the high-intensity justiciability rate of this right in Colombia (Young and Lemaitre 197).

35  In Section 27 of the Constitution of South Africa, the universal right to health reads as follows:

36  As the South African Constitution allows for the judicial review of legislation and executive policies, it thus renders the right to health justiciable (Constitution of South Africa, s 38; Ex Parte Chairperson of the Constitutional Assembly: In Re Certification of the Constitution of the Republic of South Africa (1996) (S Afr) para. 78). In the context of South Africa’s inherited legacy of apartheid, the enshrinement of a justiciable right to health was a turning point.

37  Seemingly inspired by the international right to health, Section 27(2) and Section 7(2) of the Constitution of South Africa mirror the language of Article 2 ICESCR and the CESCR’s General Comments, requiring the State to take reasonable measures, within its available resources, to progressively realize the right to health, as well as to respect, protect, promote, and fulfil it.

38  The impact of the newly constitutionalized right to health was tested almost immediately when the Constitutional Court rejected an appeal for dialysis from a dying man, finding that the public health system’s guidelines were applied rationally and in good faith (Soobramoney v Minister of Health (1997) (S Afr)). However, it was President Mbeki’s government’s response, or better said lack thereof, to the HIV/AIDS epidemic that was a much more critical test for the right to health in South Africa.

39  Minister of Health v Treatment Action Campaign (2002) (S Afr) is the most important right to health-related case in the South African context. The Treatment Action Campaign contended that the government’s policy to limit access to antiretroviral drugs, ie Nevirapine, that could halve the risk of HIV transmission from mother to child was a violation of the constitutional right to health. By the time the case reached the Constitutional Court, the Court had already demonstrated its willingness to interfere with government decisions, most notably in its Grootboom decision where it established the so-called reasonableness standard to assess State compliance with its constitutional obligations relating to socioeconomic rights (Government of the Republic of South Africa v Grootboom Case (S Afr) (2000)).

40  In Treatment Action Campaign, the government justified its policy to make Nevirapine available only in a small number of test sites throughout the country on the basis of the necessity to study the effectiveness of a possible future nation-wide programme. The very act of judicial review was at the heart of the government’s defence. The Constitutional Court found that the government’s policy did not meet the reasonableness test, because it ignored urgent health needs and excluded significant segments of society, namely children born in public hospitals to predominantly poor mothers, who consequently would have significantly worse health outcomes and even decreased life expectancies. The government itself acknowledged that the cost of the medicine was not a factor, and therefore any arguments on the lack of resources did not carry any weight. Moreover, the medicine was both safe and effective. Consequently, the Court ordered the government to remove, without delay, any restrictions and make Nevirapine available in the public sector, as well as to design and implement a comprehensive programme to prevent mother-to-child-transmission (Treatment Action Campaign (2002) (S Afr); Forman and Singh 309–10).

41  Later on, the Court confirmed that the constitutional right to health also includes a right to access to affordable medicines (Minister of Health v New Clicks South Africa (2005) (S Afr)). Nonetheless, the Court’s reasoning demonstrates that the right to health does not bestow an individual entitlement to health care services and State obligations are constrained by progressive realization within available resources. That has raised concerns about the Court’s willingness to enforce health-related rights in a meaningful way (Forman and Singh 315–16). Even so, the South African experience demonstrates that a justiciable, constitutionally protected right to health can effectively be enforced by domestic courts, and even advance health equity as long as it is accompanied by political will.

42  Yet, not all countries with constitutions that contain justiciable socio-economic rights have taken such an approach. As opposed to the approach retained by the South African Court Japan’s Supreme Court adopted ‘a number of techniques which tend to encourage restraint and avoid constitutional conflict’ (Kuramochi 256) thereby only very weakly enforcing health rights claims, even though the Japanese Constitution contains a justiciable right to health (Constitution of Japan: 3 November 1946 Main Text, Chapter III Rights and Duties of the People, Art. 25 (Japan)).

Select Bibliography

• Cabrera, OA, and Ayala, AS, ‘Advancing the Right to Health through Litigation’ in Zuniga, JM, Marks, SP, Gostin, LO, (eds), Advancing the Right to Health (OUP 2013).

• Cepeda Espinosa, MJ, and Landau, D, Colombian Constitutional Law: Leading Cases (OUP 2017).

• den Exter, A, ‘Health Care Access in the Netherlands’ in Flood, CM, and Gross, A, (eds), The Right to Health at the Public/Private Divide: A Global Comparative Study (OUP 2014) 188.

• Flood, CM, ‘Litigating Health Rights in Canada. A White Knight for Equity?’ in Flood, CM, and Gross, A, (eds), The Right to Health at the Public/Private Divide: A Global Comparative Study (OUP 2014) 79.

• Flood, CM, and Gross, A, ‘Litigating the Right to Health: What Can We Learn from a Comparative Law and Health Care Systems Approach’ (2014) 16 Health and Human Rights 62.

• Flood, CM, and Thomas, B, ‘Justiciability of Human Rights for Health’ in Gostin, LO, and Meier, BM, (eds), Foundations of Global Health and Human Rights (OUP 2020) 177.

• Forman, L, Caraoshi L, Chapman, AR, and Lamprea E, ‘Conceptualising Minimum Core Obligations under the Right to Health: How Should We Define and Implement the “Morality of the Depths”’ (2016) 20 The International Journal of Human Rights 531.

• Forman, L, and Singh, JA, ‘The Role of Rights and Litigation in Assuring More Equitable Access to Health Care in South Africa’ in Flood, CM, and Gross, A, (eds), The Right to Health at the Public/Private Divide: A Global Comparative Study (OUP 2014) 288.

• Grover, A, Misra, M, and Rangarajan L, ‘Right to Health. Addressing Inequities through Litigation in India’ in Flood, CM, and Gross, A, (eds), The Right to Health at the Public/Private Divide: A Global Comparative Study (OUP 2014) 423.

• Heymann, J, Cassola, A, Raub, A, and Mishra, L, ‘Constitutional Rights to Health, Public Health and Medical Care: The Status of Health Protections in 191 Countries’ (2013) 8 Global Public Health 639.

• Hoffman, AK, ‘A Vision of an Emerging Right to Health Care in the United States: Expanding Health Care Equity Through Legislative Reform’ in Flood, CM, and Gross, A, (eds), The Right to Health at the Public/Private Divide: A Global Comparative Study (OUP 2014) 345.

• Kavanagh, MM, ‘The Right to Health: Institutional Effects of Constitutional Provisions on Health Outcomes’ (2016) 51 Studies in Comparative and International Development 328.

• Kuramochi, T, ‘The Protection of Human Rights and the Role of Constitutional Judicial Review in Japan’ (2015) 26 King’s Law Journal 252.

• Lamprea, E, ‘Colombia’s Right-to-Health Litigation in a Context of Health Care Reform’ in Flood, CM, and Gross, A, (eds), The Right to Health at the Public/Private Divide: A Global Comparative Study (OUP 2014) 131.

• Lind, AS, ‘The Right to Health in Sweden’ in Flood, CM, and Gross, A, (eds), The Right to Health at the Public/Private Divide: A Global Comparative Study (OUP 2014) 51.

• Malagala, TA, ‘Human Rights-Based Accountability for Healthcare in Uganda’ (2011) 17 East African Journal of Peace and Human Rights 89.

• Manning, J, ‘Litigating a Right to Health Care in New Zealand’ in Flood, CM, and Gross, A, (eds), The Right to Health at the Public/Private Divide: A Global Comparative Study (OUP 2014) 19.

• Mapulanga-Hulston, JK, ‘Examining the Justiciability of Economic, Social and Cultural Rights’ (2002) 6 The International Journal of Human Rights 29.

• Perehudoff, SK, Toebes, B, and Hogerzeil, H, ‘Essential Medicines in National Constitutions: Progress since 2008’ (2016) 18 Health and Human Rights 141.

• Saul, B, Kinley, D, and Mowbray, J, The International Covenant on Economic, Social and Cultural Rights: Commentary, Cases and Materials (OUP 2014).

• Tobin, J, The Right to Health in International Law (OUP 2012).

• Toebes, B, ‘Health and Human Rights: In Search of the Legal Dimension’ (2015) 9 Human Rights and International Legal Discourse 212.

• Yamin, AE, ‘Taking the Right to Health Seriously: Implications for Health Systems, Courts and Achieving Universal Health Coverage’ (2017) 39 Human Rights Quarterly 341.

• Young, KG, and Lemaitre, J, ‘The Comparative Fortunes of the Right to Health: Two Tales of Justiciability in Colombia and South Africa’ (2013) 26 Harvard Human Rights Journal 179.

Select Documents

• Charter of the United Nations (adopted 26 June 1945, entered into force 24 October 1945) 1 UNTS 16.

• Constitution of the World Health Organization (signed 22 July 1946, entered into force 7 April 1948) 14 UNTS 185.

• Covenant of the League of Nations (signed 28 June 1919, entered into force 10 January 1920) (1919) 225 CTS 195.

• International Covenant on Civil and Political Rights (adopted 16 December 1966, entered into force 23 March 1976) 999 UNTS 171.

• International Covenant on Economic, Social and Cultural Rights (adopted 16 December 1966, entered into force 3 January 1976) 993 UNTS 3.

• UNCESCR, ‘General Comment No. 3, The Nature of States Parties’ Obligations’ (1990) UN Doc E/1991/23.

• UNCESCR, ‘General Comment No. 14, The Right to the Highest Attainable Standard of Health’ (2000) UN Doc E/C.12/2000/4.

• UNCESCR, ‘General Comment No. 22, The Right to Sexual and Reproductive Health’ (2016) UN Doc E/C.12/GC/22.

• UN World Conference on Human Rights ‘Vienna Declaration and Programme of Action’ (25 June 1993) UN Doc A/CONF.157/23.

• UNOHCHR and WHO, ‘Factsheet No. 31, The Right to Health’ (2008).

• UNGA Resolution 217 A (III) ‘Universal Declaration of Human Rights’ (10 December 1948) GAOR 3rd Session Part I Resolutions 71.

• WHO ‘Declaration of Alma-Ata.International Conference on Primary Health Care’ (6–12 September 1978).

Select Cases

• Ahmadou Sadio Diallo (Republic of Guinea v Democratic Republic of the Congo) [2010] ICJ Rep 582 (ICJ).

• Chaoulli v Quebec (Attorney General) [2005] 1 SCR 791 (Can).

• Consumer Education and Research Centre v Union of India (1995) 3 SCC 42 (India).

• Decision SU-225/98 (20 May 1998) (Colom).

• Decision SU-480/97 (25 September 1997) (Colom).

• Decision T-484/92 (11 August 1992) (Colom).

• Decision T-760/08 (31 July 2008) (Colom).

• Eldrige v British Columbia (Attorney General) [1997] 3 SCR 624 (Can).

• Ex Parte Chairperson of the Constitutional Assembly: In Re Certification of the Constitution of the Republic of South Africa [1996] 4 SA 744 (S Afr).

• Gosselin v Quebec (Attorney General) [2002] 4 SCR 429 (Can).

• Government of the Republic of South Africa v Grootboom [2000] 1 SA 46 (S Afr).

• Minister of Health v New Clicks South Africa [2005] 2 SA 311 (S Afr).

• Minister of Health v Treatment Action Campaign [2002] 5 SA 721 (S Afr).

• Mullin v The Administrator, Union Territory of Delhi (1981) 2 SCR 516 (India).

• Novartis AG v Union of India (2013) Civil Appeal Nos 2706–2716 (India).

• Panikurlangara v Union of India (1987) 2 SCC 165 (India).

• Paschim Banga Khet Samity v State of West Bengal (1996) 4 SCC 37 (India).

• Pt Paramanada Katara v Union of India (1989) 4 SCC 286 (India).

• Soobramoney v Minister of Health (Kwazulu-Natal) [1997] 1 SA 765 (S Afr).

• Srivastava v Chandigarh Administration (2009) 14 SCR 989 (India).

• State of Punhav v Ram Lubhaya Bagga (1998) 1 SCR 1120 (India).