RIGHT TO HEALTH CARE UNDER INTERNATIONAL INSTRUMENTS

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RIGHT TO HEALTH CARE UNDER INTERNATIONAL INSTRUMENTS The international community faces a daunting task of assuring and providing adequate health care to its ever growing population. The concomitant aspect of health i.e. health care has been internationally recognized and provides for a fundamental basic human right. It is a matter of fulfilment and satisfaction that the international community has quite a few significant achievements to its credit in the field of health. The conquest of small-pox, a deadly disease, the dramatic increase in the life expectancy and the global increase in the public expenditure for health care have been some of the outstanding achievements of the present century.[1] However, these achievements pale into insignificance when appreciated in the context of the formidable problems and obstacles which the states have to encounter and surmount in their efforts to survive for the attainment of the international goals. The most formidable problems that confront the members of the international community, both the developed and the developing, are the challenges posed by the newly emerging infectious diseases like AIDS, tuberculosis, malaria, cholera, etc. and non- communicable chronic diseases such as cancer, circulatory diseases, metabolic and hormonal imbalances and mental disorders. It may be appreciated that while the developed world has been able to rid itself of most of the infectious diseases, the developing world is fighting, with its back to the wall, the double burden of these infectious as well as chronic diseases. The concerted global action to improve the quality of life of the world’s people by improved system of health care is an imperative international necessity. The international community has tom fight on a global scale the twin enemies of infectious as well as chronic diseases. This can be done only by providing effective and comprehensive health care programmes in the national jurisdiction of the member countries. These programmes must address not only the problem of providing health or medical care for the individual but also the problem of providing healthy living conditions such as clean water, clean air, nutritious food, adequate housing, hygienic sanitation facilities, immunisation and firmly established health services. This is really a formidable international obligation and a testing challenge to the developing countries especially which cannot be met without the cooperation and help of the developed countries. So the developing countries, particularly African and South Asian countries, should take this task seriously and should pull up their sleeves to take their health care commitment critically. These countries should strive to translate the international human right to health care into an enforceable basic human need in their national jurisdictions by appropriate constitutional and legislative measures so that the right may not remain a distant mirage. The right to health care, as an international human right, is founded on the edifice of the prescriptions of the United Nations Charter, the International Bill of Rights, the Convention on Elimination of All Forms of Discrimination Against Women, 1979, the United Nations Convention on the Rights of the Child, 1989, etc. Therefore the members of the international community are expected to build their health care strategies on this edifice. United Nations Charter The United Nations Charter does not expressly provides for the provisions for health care. The Charter declares that the promotion of respect for human rights and fundamental freedoms for all without distinctions based on race, sex, language or religion is one of its fundamental purposes of the establishment of the United Nations Organization.[2] To achieve this purpose, the United Nations is charged with the responsibility to promote, interalia, higher standards of living, full employment, conditions of economic and social progress and development, and solutions of international economic, social, health and related problems.[3] In similar vein, the member states are obliged to pledge themselves to take joint and separate action in cooperation with the United Nations Organization for the achievement of the declared purposes.[4] Thus, the United Nations which is charged with the promotion of respect for human rights has to function through the General Assembly which is entrusted with this function.[5] It is an accepted fact that the resolutions of the General Assembly are not at all legally binding on the member countries. Consequently, many member states have not thought it appropriate and necessary to respect and observe human rights in their national jurisdictions. Nevertheless, the international legal obligation to promote respect for, and observance of, human rights, as enshrined in the United Nations Charter is significant in one sense, for, it serves to remove the subject of human rights from the exclusive domestic domain and to transform it into a subject of international concern.[6] This has paved the way for the adoption of not only the Universal Declaration of Human Rights by the United Nations General Assembly but also the conclusion of various international multilateral human rights instruments by the U.N. as well its specialised agencies and various regional inter-governmental organizations. The Universal Declaration of Human Rights Ever since the adoption by the world community of the Universal Declaration of Human Rights, 1948. Public disclosures relating to health have been conducted in the language of rights on the assumption that the State has definite obligations in the maintenance of public health, that is, conditions in which people can live healthy. The adoption of the UDHR by the U.N. General Assembly revolutionized the human rights in the world, thereby marking the ushering in of a new era in the mankind’s struggle for freedom and human dignity. The Declaration proclaims that all human beings are born free and equal in dignity and rights[7] and that they are entitled to a social and international order in which the rights and freedoms are set forth in this Declaration can be fully realised.[8] A significant feature of the UDHR is that it proclaims and recognizes the importance of not only civil and political rights but also economic, social and cultural rights. Of these, individual rights to social security, to work, to protection against unemployment, to rest and leisure and to protection against torture and cruel and inhuman treatment are some of the important rights the enjoyment of which depends on the efficacy of the right to health and health care. Coming to the crucial provision of the Declaration which expressly recognises the right to health, Article 25 reads: “1. Everyone has the right to a standard of living adequate for the health and wellbeing of himself and of his family, including food, clothing, housing and medical care and necessary social services, and the right to security in the event of unemployment, sickness, disability, widowhood, old age or other lack of livelihood in circumstances beyond his control. 2. Motherhood and childhood are entitled to special care and assistance. All children, whether born in or out of wedlock, shall enjoy the same social protection.” The rights proclaimed by the Declaration are not absolute as they are subject to the authority of the member states to enact laws limiting the exercise of these solely for the purpose of securing “due recognition and respect for the rights and freedoms of others and of meeting the just requirements for the rights and freedoms of others and of meeting the just requirements of morality, public order and the general welfare in a democratic society.”[9] It may be appreciated that while the Declaration proclaims that all members of the society are entitles to the realisation of the economic, social and cultural rights which are indispensable for enjoyment of man’s dignity and development of his personality, their actual realisation has been made dependent on the availability of resources at the disposal of the member states. And the right to health is no exception to this basic premise. The International Bill of Human Rights Ever since the adoption by the world community of the Universal Declaration of Human Rights, 1948, public disclosures relating to health have been conducted in the language of rights on the assumption that the State has definite obligations in the maintenance of public health, that is, conditions in which people can live healthy. In 1996, the international community articulated the right in Article 12 of the International Covenant on Cultural, Economic and Social Rights in the following terms: “1. The State’s Parties to the present Covenant recognize the right of everyone to the enjoyment of the highest attainable standard of physical and mental health. 2. The steps to be taken by the State’s parties to the present Covenant to achieve the full realisation of this right shall include those necessary for: (a) The provision for the reduction of the still birth rate and of infant mortality and for the healthy development of then child; (b) The improvement of all aspects of environmental and industrial hygiene; (c) The prevention, treatment and control of epidemic, endemic, occupational and other diseases; (d) The creation of conditions which would assure to all medical service and medical attention in the event of sickness.” Article 12 of the ICESCR forms a base of right to health. The article recognizes the right of everyone to enjoy the highest standard of physical and mental health. It enumerates four steps to be followed by the State so that everyone can realize the right to health. It states that States must act to enhance the welfare of children in general, such as reduction in still birth rate and infant mortality and health development of the child. States must take measures to improve environment and industrial hygiene, must prevent and treat epidemic, endemic, occupational and other diseases. States must also strive to optimize health service. Here also the multi-form nature of heath carves a coherent whole in the text of the covenant. Right to health is a means of attaining full development of the right to life and integrity of human person, a means of recognizing right of each individual to what the community owes him, and a means of creating duties under State responsibility to contribute to the satisfaction of the individual aspirations of citizens. A close scrutiny of the measure that the State has to undertake reveals several areas. However, the criticism is often overcome by a counter argument that since human rights treaties are of a law-making character as opposed to contracting treaty, they purport to give fuller effectiveness to their guarantee and hence it is essential that wide ranging and socially evolving, matters affecting health be economic passed within article 12.[10] Although the International Covenants on Human Rights were adopted in 1966, they came into force only in 1976. The instruments were designed to transform the principles proclaimed in the Declaration into binding treaty obligations. Not all states are parties to these Covenants. While the Covenant on Civil and Political Rights incorporate mainly the “first generation” classical human rights which are negative in nature, imposing only negative obligations on the state’s parties, the Covenant on Economic, Social and Cultural Rights which is more relevant in the context of present discussion embodies the “second generation” human rights which are positive in scope and character, imposing positive and affirmative obligations on the state’s parties.[11] The Covenant also enumerates several other rights which have a bearing on the right to health and health care. The theoretical division between civil and political rights and economic, social and cultural rights has definitely an impact on the nature of right to health. At the outset in contrast to ICCPR, the ICESCR is not immediately binding but subordinated to the principle of progressive realization. This means that treaty provisions are intended to acquire full realization of right only progressively to the maximum of its available resources. From the perspective of right to health this means that realization of the same depends upon resources of the State. So the main drawback of this type of language is that it may be used as a shield by the State to evade responsibilities in ensuring right to health. However, it has been cautioned by the committee on economic, social and cultural rights that the fact that realization overtime or in other words progressively should not be misinterpreted as depriving the obligation of all meaningful content. It is just a flexible tone reflecting realities of the real world and the cultural rights. But as a matter of fact the caution has always been ignored by the States.[12] Another weakness inherent in ICESCR is the nature of language. While ICCPR provisions are formulated in an affirmative and unconditional way such as “Everyone shall have the right”. ICESCR provisions state only that “State parties recognize or undertake to ensure”. The terms like ‘recognize’, ‘undertake to ensure’ were chosen deliberately to lessen the operative force of the provisions and to entrust to States a broader ambit of discretion. Again another important deficiency of ICESCR is that as compared to general clause in Article 2 of ICCPR there is no explicit reference to judicial or other forms of remedy.[13] There is no individual or inter State complaint mechanism as with the operative clause under the ICCPR and its first optional protocol. The State parties to the ICESCR are only required to submit reports to the committee on economic, social and cultural rights on any national legislative and other measures taken to give fuller effect to the right guaranteed in ICESCR. While the Covenant on Civil and Political Rights creates immediate negative legal obligations on the state parties, the Covenant on Economic, Social and Cultural Rights only requires a progressive implementation of positive obligations by the state parties within the scope of their available resources. The Covenant requires each state party to take positive steps to the maximum of its available resources, with a view to achieving progressively the full realization of the rights by all appropriate means, including particularly the adoption of legislative measures.
[1] Dr. B. Errabbi, “The Right to Health Care: Need for its Conversion into a Statutorily Enforceable Basic Human Need – An Indian Perspective”, Delhi Law Review, Vol. 20, 1998, p. 51. [2] United Nations Charter, Article 1(3). [3] Id.. Article 55. [4] Id.. Article 56. [5] Id.. Article 13 (b). [6] Supra note 1. [7] Universal Declaration of Human Rights, 1948, Article 1. [8] Id. Article 28. [9] Id. Article 29 (2). [10] Bismi Gopalakrishnan, “Right to Health and Resultant Obligations”, The Academy Law Review, Vol. 29, 2005, p. 208-209. [11] Dr. B. Errabbi, “The Right to Health Care: Need for its Conversion into a Statutorily Enforceable Basic Human Need – An Indian Perspective”, Delhi Law Review, Vol. 20, 1998, p. 55. [12] Supra note 10. [13] Ibid.
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