The Right to Health Research Papers (original) (raw)

Everyday there are always chances and forum for us to discuss or be concerned about the matter of “health” or staying “healthy”, from private life to public issues, from domestic policies to global governance, because “health”, by definition or criteria, is highly related to personal dignity, lifestyle, and living conditions. Being the basis of everyone’s personal development, maintenance and protection of health has been long recognized as one of the fundamental human rights by international human rights law, in such forms of “the right to a standard of living adequate for the health” or “the right to the enjoyment of the highest attainable standard of physical and mental health” contained respectively within the UDHR and the ICESCR, and in fact, the WHO Constitution even manifests more that “The enjoyment of the highest attainable standard of health is one of the fundamental rights of every human being without distinction of race, religion, political belief, economic or social condition.”
Notwithstanding this undeniable importance, one question is frequently raised by international community, particularly by States when ratifying, or after ratifying, human rights treaties: as a human right, what does “health” indicate and entail upon States and other non-State actors in law? It is because “health” involving with too many complicated factors. Namely, despite recognitions of the existence and necessity of the right to health, but to ensure the right to health not to be infringed upon, or to be remedied when being violated, still depend on those questions of “what the substantial legal obligations are, how to comply with, and how to monitor and evaluate the situations of States’ compliance.” All of these questions have eventually been clarified in 2000 by CESCR’s No. 14 General Comment, which is referred to and based on by this study as well when interpreting the normative contents of the right to health.
Besides, this study also highlights the relationship between a government and people from the lens of public health. Looking closer upon the methodology and current development of public health, such as identification of social determinants of health and internationalization of health governance, it is found that “public health” has a dual sense, externally and internally, for States under international law; that is, not only public health affairs are definitely subject to the principles of jurisdictional exclusiveness and non-interference, but also they can be regarded as performances of health protection for people. This can be inferred by the interpretations of States’ “right to protect public health” and individuals’ “right to health care” provided separately in the preambular clause of the WHO-FCTC and the Charter of Fundamental Rights of the European Union. As a result, this normative implication may serve as the rationale of the principles of “health promotion” and “health equity” in modern public health.
In the last part of this study, it applies the homogeneity and complementariy between the right to health and public health to answering the question of “whether and how the right to health can be implemented in national public health based on the nexus between the right to health and public health under international human rights law”. For instance, the requirements of priority setting and public participation contained within “the right to health” can be taken as the theoretical basis and strategic guidance of public health policies on one hand. On the other hand, the process, outcomes, and any investigations into people’s health by “public health” mechanisms may be used as factual evidence for the right to health indicators-benchmarks assessment, and this is also why the CESCR emphasizes that monitoring over satisfaction of the right to health should refer to the Alma Ata Declaration in 1978, the Program of Action of the International Conference on Population and Development in 1994, the health-related Millennium Development Goals in 2000 and so on.
At the final stage, this study would like to further elaborate upon the theory of “right to health-based public health”, which has been consistently advocated by human rights organizations and public health community, including the UN and all its specialized agencies, based on the inextricable nexus between the right to health and public health, such as the principles of non-discrimination, progressive realization and whichever central to safeguarding human dignity and social justice. Therefore, this study hopes to prove the necessity of its existence in theory and the feasibility of its application in practice, by demonstrating that the right to health can serve as the justification to legitimize public health measures on one hand, and public health may provide practicability to implement the right to health on the other hand, according to the theory of “right to health-based public health”.