The Right to Health in International Human Rights Law

Author(s): Virginia A. Leary

Source: Health and Human Rights , Autumn, 1994, Vol. 1, No. 1 (Autumn, 1994), pp. 24-
56
Published by: The President and Fellows of Harvard College on behalf of Harvard School
of Public Health/François-Xavier Bagnoud Center for Health and Human Rights

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 A b s t r a c t

This paper discusses the concept of the right to health in international hu-
man rights law. The phrase "right to health" is not a familiar one, although
the Constitution of the World Health Organization and a number of interna-
tional human rights treaties recognize the right to the "highest attainable
standard" of health. The use of "right to health" terminology is discussed,
and the language of international declarations and treaties referring to a right
to health is cited. The author contends that approaching health issues through
a rights perspective adds an important dimension to consideration of health
status. The shorthand, "right to health ", emphasizes the link of health status
to issues of dignity, non-discrimination, justice, and participation. The paper
delineates the efforts of United Nations organs as well as human rights schol-
ars and activists to develop the scope and obligations of the right to health.
The relation of economic resources to its implementation is discussed. A sec-
tion is devoted to the issue of the right to health in relation to women.

Este ensayo discute el uso incrementado del concepto del derecho a la salud
en la literatura legal, m?dica y filos?fica y sugiere la importancia que deberia
darse a este derecho. El enfoque de este ensayo es sobre los aspectos
internacionales del estado y los servicios de salud. Se sustenta que enfocando
los aspectos de salud a trav?s de una perspectiva de los derechos se incorpora
una dimensi?n importante y pr?ctica a la consideraci?n del estado de salud.
La frase "el derecho a la salud" no es un t?rmino familiar, aunque la
Constituci?n de la Organizacion Mundial de la Salud y numerosos tratados
internacionales sobre los derechos humanos reconozcan el derecho a "el goce
del grado maximo de salud que se pueda lograr. La expresion taquigr?fica
"el derecho a la salud" enfatiza la uni?n del estado de la salud a los aspectos
de dignidad, igualdad, justicia yparticipaci?n. Puesto que la mayorfa de los
estados han ratificado tratados internacionales reconociendo el derecho a la
salud, en este articulo la atencion se centra en los esfuerzos de los organismos
de las Naciones Unidas, acad?micos y activistas de los derechos humanos
para definir el derecho a la salud. La ultima secci?n del articulo examina las
obligaciones especificas de los estados que pueden ser deducidas a partir de
la aceptaci?n del concepto del derecho a la salud.

Cet article examine le concept du droit ? la sant? sous l'angle du droit inter-
national des droits de lPhomme. Cette expression de "droit ? la sant?" n'est
pas commune, quoique la constitution de l'Organisation Mondiale de la Sant?
et un bon nombre de trait?s internationaux des droits de l'homme
reconnaissent le droit au "meilleur ?tat de sant? qu'il est capable d'atteindre".
L'utilisation de la terminologie "droit ? la sant?" est discut?e et le langage
des d?clarations internationales et des trait?s relatifs au droit ? la sant? est
cit?. Il est soutenu qu'une importante dimension de la consid?ration du statut
de la sant? est prise en compte et ajout?e lorsque les questions de la sant?
sont abord?es sous l'angle des droits de l'homme. Le terme "droit ? la sant?"
souligne le lien entre le statut de la sant? et les questions de dignit?, de non-
discrimination, de justice et de participation. L'article pr?sente les efforts des
organisimes des Nations Unies, des chercheurs et des activistes des droits de
l'homme en vue de d?velopper la port?e et les obligations du droit ? la sant?.
Le r?le des resources ?conomiques dans la mise en place du droit est discut?
et une section est consacr?e au probl?me du droit ? la sant? en relation avec
les femmes.

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 THE RIGHT To HEALTH

IN INTERNATIONAL HUMAN RIGHTS LAW

Virginia A. Leary, JD

In this essay, health issues are examined through the lens

of a "right to health"-a phrase that elicits a number of ques-
tions:

* What does the phrase mean?

* What are the implications of referring to a "right" in the
context of health?
* What is the origin or source of such a right? Does it have
any basis as a legal right?
* Does the term imply a right only to health care or are
other rights implied also?
* How can a right to health be guaranteed, since no person
or state authority can guarantee good health to anyone?

Of course, these questions touch on ethical and philosophi-

cal issues. But in this essay the right to health is considered only
from the perspective of international law, and not from that of
morality or philosophy.
The "enjoyment of the highest attainable standard of
health" has been recognized as a "fundamental right" by the in-
ternational community since the adoption of the Constitution
of the World Health Organization (WHO) in 1946.1 Numerous
international human rights treaties-many of which have been

Virginia A. Leary is Professor of Law and S UNYDistinguished Service Professor

at the State University of New York at Buffalo. Please address correspondence
to Professor Leary, Law School, SUNY, Buffalo, NY 14260 USA.

HEALTH AND HUMAN RIGHTS 25

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widely ratified-also recognize the right. While all of these dec-
larations and treaties contain provisions on rights and health,
the language of each varies widely; it has become customary to
refer to these provisions collectively as constituting the "right to
health."
The first section of this essay explains that the phrase
"right to health" is used in the international human rights con-
text to refer to (1) the more lengthy and detailed provisions relat-
ing to health in the WHO Constitution and in legally binding
human rights treaties and (2) to emphasize the social and ethical
aspects of health care and health status. This shorthand expres-
sion has its critics, but the phrase has now attained generalized
usage in human rights literature. The meaning of "right to health"
is discussed in the first section and contrasted with the terms
"right to health care" and "right to health protection."
The second section of the essay considers the source of
the right to health in human rights law. In particular, the manner
in which international human rights law has evolved since World
War II to include economic and social rights is discussed. Provi-
sions on the right to health in the main human rights instru-
ments are cited. Brief reference is made to some provisions of
national constitutions relating to the right to health and health
protection.
Although enunciated in international instruments, the
scope and meaning of the right to health as a human right is only
gradually being clarified. With the notable exceptions of an ex-
cellent study by the Pan American Health Organization (PAHO)2
and a workshop at The Hague Academy of International Law,3
there have been few serious efforts by international organizations
or scholars to consider the scope of the right to health. Neverthe-
less, it is not unusual for the full implications of a right enshrined
in a bill of rights or a human rights treaty to be perceived only
gradually: rights proclaimed in national constitutions and in in-
ternational legal instruments are expressed in succinct language
whose meaning is rarely self-evident.
Moreover, the content and implications of a right develop
over time through judicial and administrative interpretation in
and application to concrete cases, as well as through scholarly
analyses.
In interpreting civil and political rights (such as freedom

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of expression or freedom of association), international organs
applying human rights law have been able to benefit from the
experience of national legal systems. However, national legal
systems do not have a large body of experience in interpreting
and implementing the economic and social rights recognized in
international treaties. In this regard, the right to health shares
the same fate as other economic and social rights, such as the
right to food and the right to housing-also recognized in inter-
national treaties-whose meaning is only gradually being clari-
fied.
International human rights treaties commonly create
monitoring committees whose role is to interpret and apply the
treaties' provisions and to engage in a dialogue with the ratifying
states as to their application. Most of these committees have had
a short history compared to that of national judicial systems.
Economic and social rights, including the right to health, are only
beginning to be clarified by monitoring committees.
The third section of the paper considers implications of
human rights discourse in relation to health issues. The concept
of a right to health implies that fundamental principles of hu-
man rights-dignity, non-discrimination, participation, and jus-
tice- are relevant to issues of health care and health status.
The meaning to be ascribed to the right to health, as well
as the obligations of states to ensure that right, is examined in
the fourth section of the paper. This involves reference to provi-
sions of international instruments, WHO's work in this area, ef-
forts of monitoring committees, scholarly literature, and public
health approaches. Unfortunately, space limitations restrict the
discussion to a few basic issues concerning the scope of the right.
In the fifth section, two important issues related to imple-
mentation of the right to health have been selected for particular
consideration: (1) relation of economic resources to implementa-
tion of the right to health, and (2) non-discrimination as it relates
to women's rights and health.
The essay's conclusion suggests some issues, not previ-
ously discussed at length, that should be pursued in considering
the scope of the right to health. Emphasized is the need for col-
laboration among human rights scholars and practitioners, WHO,
UNICEF, and public health and development experts, in order to
further elucidate the central content of the right to health as a
human right.
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I. Terminology: The Right To Health-A Shorthand Expression
On first hearing it, the phrase "right to health" strikes
many as strange. It is not a common expression in national legal
systems and it is not a term familiar to many in the field of medi-
cine and public health. Notwithstanding, there are a number of
references to the right to health (and health care) in philosophi-
cal literature, and it is becoming a familiar term in the context of
international human rights. Superficially, the "right to health"
seems to presume that government or international organizations
or individuals must guarantee a person's good health. This inter-
pretation is obviously absurd and the phrase is not given such an
interpretation in the context of human rights law.
As mentioned in the introduction, the term "right to
health" is currently used in the context of human rights as short-
hand, referring to the more detailed language contained in inter-
national treaties and to fundamental human rights principles.
The precise terminology "right to health," without further ex-
planation, is not used in most provisions of treaties relating to
health. (See Section II for language employed in international trea-
ties.) The following examples, among many possible, evidence
extensive use of "right to health"-in the sense outlined above-
by international organizations, human rights organs, and legal
scholars:

1) The Committee on Economic, Social and Cultural Rights,

which monitors the application of the Covenant on Eco-
nomic, Social and Cultural Rights4 (hereinafter the "Eco-
nomic Covenant"), held a "Day of General Discussion on
the Right to Health" on 6 December 1993, focused on the
meaning to be attributed to Article 12 of that Covenant
which provides "The States Parties to the present Cov-
enant recognize the right of everyone to the enjoyment of
the highest attainable standard of physical and mental
health."5

2) A 1993 WHO publication entitled Human Rights in Rela-

tion to Women's Health6 contains a number of references
to women's "right to health," and considers the meaning
of that right by detailed references to the WHO Constitu-
tion, the Economic Covenant, the Convention on the
Elimination of All Forms of Discrimination against

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 Women7 (hereinafter the "Women's Convention"), and the
Convention on the Rights of the Child8 (hereinafter
"Children's Convention").

3) In 1989, the Pan-American Health Organization (PAHO)

published a lengthy study on The Right to Health in the
Americas9, edited by two lawyers with extensive experi-
ence in health law. In support of the existence of the right
to health as a legal right in international law, they cite
detailed provisions of the WHO Constitution and inter-
national human rights treaties.

4) In the same PAHO publication, Judge Thomas Buergenthal

wrote an article entitled "International Human Rights Law
and Institutions." He referred on a number of occasions
to the right to health as dealt with in various international
human rights instruments.10

5) In 1978, the Hague Academy of International Law and the

United Nations University organized a multi-disciplin-
ary workshop on The Right to Health as a Human Right
with participants from the fields of law, medicine, eco-
nomics and international organizations. It established the
phrase "right to health" within the context of interna-
tional human rights and drew attention to sources of the
right."I

In a paper submitted to the workshop entitled "The Right

to Health," Professor Theo C. Van Boven, then Director of the
United Nations Division of Human Rights and subsequently Pro-
fessor of International Law at Limburg University, Netherlands
uses the term "right to health" to refer to provisions in the found-
ing documents of international human rights law. Cited were
provisions in the Universal Declaration of Human Rights and
the Economic Covenant and a number of other declarations.
Van Boven wrote, "Three aspects of the right to health
have been enshrined in the international instruments on human
rights: the declaration of the right to health as a basic human
right; the prescription of standards aimed at meeting the health
needs of specific groups of persons; and the prescription of ways
and means for implementing the right to health."''2
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 The use of shorthand expressions to express more com-
plete concepts is common in human rights, civil rights, and fun-
damental rights. Reference may be made in fundamental rights
literature to the "right to property"; the acquired meaning is not
that everyone has the right to demand some property, but that no
one may be arbitrarily deprived of his or her property. The term's
meaning has developed through long usage and application in
legal systems. This is in keeping with the evolution of the scope
of concepts like "due process," "natural justice," "equal protec-
tion," and of rights to freedom of expression or freedom of asso-
ciation. At first these terms were not self-evident, but through
judicial, legislative and scholarly use in many countries they have
acquired a generally recognized meaning.
Use of rights language in connection with health has led
to controversy in the United States, despite its acceptance inter-
nationally. Furthermore, whereas the concept of a right to health
care is more specific and more readily understood than the right
to health, the use of this more specific phrase has also been criti-
cized. For example, a recent publication entitled The Right to
Health Care, edited by two American authors, contains a num-
ber of chapters by philosophers and economists, some favoring
the concept of a right to health care and some opposing it as rhe-
torical, lacking in specificity and diversionary from the real prob-
lems of medical care.13 In that publication, some contributors
reject a right to health care on ideological grounds as authorizing
"the coercive redistribution of individuals' resources."'14 Those
writing in favor of the terminology perceive the use of rights lan-
guage as emphasizing aspects of equity and fairness in the provi-
sion of medical care.'5 Only one contribution in the volume makes
even passing reference to international declarations or treaties
relating to the right to health and health care.
In its 1983 report, the Commission for the Study of Ethi-
cal Problems in Medical and Biomedical and Behavioral Research,
appointed by the President of the United States, rejected the con-
cept of a right to health care as an ethical basis for reforms of the
United States health care system, although a 1953 Presidential
commission had endorsed the expression.16 The primary reason
for the 1983 rejection appeared to be that such a right is not in-
cluded in the Bill of Rights to the American Constitution. It may
also have reflected the anti-social rights orientation of the Reagan

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Administration, in power at that time.
Currently, the Science and Human Rights Program of the
American Association for the Advancement of Science (AAAS)
is completing a project exploring implications of recognizing a
right to health care. Through a series of consultations with ex-
perts in medicine, law, philosophy, economics and ethics, the
project has made a major contribution to understanding the lim-
ited right to health care. Many of the proposals emanating from
the project explore issues essential as well for recognition of the
right to health.'7
Professor Ruth Roemer, writing in PAHO's Right to Health
in the Americas, entitles her contribution "The Right to Health
Care,"'8 endorsing the opinion that the phrase "right to health"
conveys an absurdity: the guarantee of perfect health. However,
she goes on to give an extensive definition to the right to health
care, considering it to encompass "protective environmental ser-
vices, prevention and health promotion and therapeutic services
as well as related actions in sanitation, environmental engineer-
ing, housing and social welfare."'9 Such an extensive definition
seems contrary to common understanding of the phrase "right to
health care," normally taken to mean only the provision of medi-
cal services. Her usage illustrates, however, the negative reac-
tion of many to the phrase "right to health"-a reaction that will
only lessen as the term's use and implications become more fa-
miliar.
The PAHO study's authors also express certain hesitations
about the use of the term "right to health":

In summary, the editors recognize that the phrase a right

to health may be incomplete and conceptually misleading. We
suggest that a more correct phraseology would be a right to
health protection, including two components, a right to health
care and a right to healthy conditions.20

In the end, however, they opt for the term "right to health"
in their book's title for "the sake of convenience and to conform
to standard usage in human rights texts.... "21 As pointed out by
the editors of the PAHO study and others, the term "right to
health" is used for convenience and has become standard in the
field of human rights, but it is not the precise language of the
legal instruments, which are explored in the following section.

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II. International and National Legal Provisions

International Provisions
A number of international treaties and declarations use
the language of rights in referring to health issues. Only those
paragraphs of articles using rights language are cited in this sec-
tion. A number of these same articles contain additional para-
graphs listing measures to be taken by states parties to ensure
the enjoyment of the rights. These are discussed in Section IV, on
the scope of the right to health.
Although the 1948 Universal Declaration of Human
Rights22 is not a treaty, most of its provisions are now considered
by legal scholars as constituting customary international
[Link] 25 of the Declaration reads:

Everyone has the right to a standard of living adequate for

the health and well-being of himself and his family, including
food, clothing, housing and medical care and the right to secu-
rity in the event of...siclness, disability..."

The language of the WHO Constitution has inspired the

provisions of several treaties:

*WHO Constitution (Preamble)

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
conditions.

*International Covenant on Economic, Social and Cultural

Rights
Article 12(1): The States Parties to the present Covenant
recognize the right of everyone to the enjoyment of the highest
attainable standard of physical and mental health.

*Convention on the Rights of the Child

Article 24(1): States Parties recognize the right of the child
to the enjoyment of the highest attainable standard of health.

*African Charter on Human and Peoples' Rights23

Article 16: Every individual shall have the right to enjoy
the best attainable state of physical and mental health.

The important WHO and UNICEF Declaration of Alma-

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Ata adopted at the International Conference on Primary Health
Care in 1978, also used similar language:

The Conference strongly reaffirms that health, which is a

state of complete physical, mental and social wellbeing, and
not merely the absence of disease or infirmity, is a fundamen-
tal human right and that the attainment of the highest possible
level of health is a most important world-wide social goal whose
realization requires the action of many other social and eco-
nomic sectors in addition to the health sector.

It should be noted that the use of the language "highest

attainable standard" in these documents presupposes a reason-
able, not an absolute, standard. Also, the language of the WHO
Constitution emphasizes an essential element implicit in the
shorter phrase "right to health" by referring to non-discrimina-
tion on the grounds of race, religion, political belief, economic,
or social conditions. Emphasis on non-discrimination in relation
to health is reiterated in the following discrimination conven-
tions.

*Convention on the Elimination of All Forms of Racial Dis-

crimination24
Article 5(e)(iv) provides that States Parties undertake to
prohibit and eliminate racial discrimination in the enjoyment
of "the right to public health, medical care, social security and
social services."

*Convention on the Elimination of All Forms of Discrimina-

tion Against Women
Article ll(l)(f) provides that States Parties shall take all ap-
propriate measures to eliminate discrimination against women
in the enjoyment of "the right to protection of health and to
safety in working conditions, including the safeguarding of the
function of reproduction."

Article 12 of the same convention provides that all appro-

priate measures should be taken by States Parties to eliminate
discrimination against women "in the field of health care in or-
der to ensure on a basis of equality of men and women, access to
health care services, including those related to family planning."
The Additional Protocol of the American Convention on
Human Rights in the Area of Economic, Social and Cultural
Rights (Protocol of San Salvador)25 uses the precise language "right

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to health." Article 10, entitled "Right to Health," reads: "(1)
Everyone shall have the right to health, understood to mean the
enjoyment of the highest level of physical, mental and social well-
being. (2) In order to ensure the exercise of the right to health, the
States Parties agree to recognize health as a public good...."
The American Declaration of the Rights and Duties of
Man contains the following similar language:

Article XI: Every person has the right to the preservation

of his health through sanitary and social measures relating to
food, clothing, housing and medical care, to the extent permit-
ted by public and community resources.26

As stated earlier, these provisions employ a wide variety

of language: some use the terminology "right to protection of
health" or "right to preservation of health": others intersperse
additional language between the terminology of "right" and
"health". Naturally, when a particular treaty or declaration is
considered for application in a concrete case, the specific lan-
guage of the provision involved should be referred to, rather than
the more general concept of a right to health.

National Provisions
The constitutions of some states include provisions on
the right to health. A few are cited here (the references in this
section are not exhaustive).
Writing about the American Hemisphere, the editors of
the PAHO study referred to earlier report that:

Twenty of the constitutions of the civil and socialist law

countries of the Hemisphere do include a statement on the right
to health and/or the duty of the State in regard to the health of
the nation. A right to health is proclaimed in five constitu-
tions; a right to health protection is found in eight others. All
the socialist law countries proclaim both a right and duty; of
the civil law countries, only Argentina, Colombia and Costa
Rica do not have a direct reference to the duty of the State in
regard to health.27

The editors point out that none of the common law coun-
tries of the Hemisphere contains a reference to the right to health.
This may be due to influence of the United States Constitution
on the constitutional development in these countries, since that
Constitution does not contain references to social rights.

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 The 1987 Philippine Constitution refers explicitly to the
right to health. It provides:

(Article II, sec. 15): The State shall protect and promote
the right to health of the people and instill health conscious-
ness among them.
(Article II, sec. 16) The State shall protect and advance
the right of the people to a balanced and healthful ecology in
accord with the rhythm and harmony of nature.28

Although they do not use the terminology, "right to health,"

the French and Japanese Constitutions contain provisions rel-
evant to the right. Specifically, the Preamble to the 1946 French
Constitution, reaffirmed in the 1958 Constitution, provides that
the State "guarantees to all and notably to the child, the mother
and the aged worker, health protection, material security, rest
and leisure."29Article 25 of the 1946 Japanese Constitution pro-
vides "...In all spheres the State shall use its endeavours for the
promotion and extension of social welfare and security and of
public health."30
Professor Ruth Roemer in PAHO's The Right to Health in
the Americas has pointed out that:

The principal function of a constitutional provision for

the right to health care is usually symbolic. It sets forth the
intention of the government to protect the health of its citi-
zens. A statement of national policy alone is not sufficient to
assure entitlement to health care; the right must be developed
through specific statutes, programs and services. But setting
forth the right to health care in a constitution serves to inform
the people that protection of their health is official policy of
the government and is reflected in the basic law of the land.3

III. Relevance of Rights Discourse To Health Issues

What do human rights have to do with health issues? What
does rights discourse add to consideration of complex technical,
economic, and practical issues involved in health care and sta-
tus? It was earlier stated that the concept of a right to health as a
human right emphasizes social and ethical aspects of health care
and health status, as these aspects are embodied in principles
underlying all international human rights. With that in mind, a
rights-based perspective on health is developed in this section by
focusing on the following elements of all rights and applying them
to health status issues:

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 1) Conceptualizing something as a right emphasizes its ex-
ceptional importance as a social or public goal. (Rights as
"trumps. ")
2) Rights concepts focus on the dignity of persons.
3) Equality or non-discrimination is a fundamental principle
of human rights.
4) Participation of individuals and groups in issues affecting
them is an essential aspect of human rights
5) The concept of rights implies entitlement.
6) Rights are interdependent.
7) Rights are almost never absolute and may be limited, but
such limitations should be subject to strict scrutiny.

Rights as Trumps
The use of rights language vis ? vis social goals confers a
special status on those goals. As Ronald Dworkin puts it, catego-
rizing something as a right means that the right "trumps" many
other claims or goods.32 A special importance, status, priority, is
implied in categorizing something as a right. Therefore, the use
of rights language in connection with health issues emphasizes
the importance of health care and health status. To speak of a
right to health does not mean that that right should always take
priority over all other goods, claims, or other rights; but it does
emphasize that health issues are of special importance given the
impact of health on the life and survival of individuals.
In a seminal study, Henry Shue defines "basic rights" as
those necessary for the enjoyment of all other rights.33 For ex-
ample, he regards the right to physical security and the right to
subsistence as basic rights from which follow ancillary rights,
such as those to unpolluted air and water, and to minimal pre-
ventive health care.
Conceptualizing health status in terms of rights under-
scores health as a social good and not solely a medical, technical,
or economic problem.

Dignity as the Foundation of Human Rights

In the language of the Preamble to the Universal Declara-
tion of Human Rights, "recognition of the inherent dignity and
of the equal and inalienable rights of all members of the human
family is the foundation of freedom, justice and peace in the
world." The concept of rights grows out of a perception of the
inherent dignity of every human being. Thus, use of rights lan-
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guage in connection with health emphasizes that the dignity of
each person must be central in all aspects of health, including
health care, medical experimentation, and limitations on free-
dom in the name of health. The focus must be on the dignity of
the individual rather than the good of the collectivity. The utili-
tarian principle is rejected by a rights approach. The greater good
of the greater number may not override individual dignity.
For example, although medical experimentation may re-
sult in good for the general populace, it must not violate the dig-
nity of the individuals subjected to it. The dignity of all must be
respected-in particular, the dignity of society's most vulnerable
elements: the poor, racial and ethnic minorities, disabled per-
sons, the mentally handicapped.

The Equality or Non-Discrimination Principle

Equality or non-discrimination is a fundamental principle
of human rights law,34 and prohibition of discrimination is a
leitmotif running through all of international human rights law.
Article 2 of the Universal Declaration of Human Rights provides,
"Everyone is entitled to all the rights and freedoms set forth in
this Declaration, without distinction of any kind such as race,
colour, sex, language, religion, political or other opinion, national
or social origin." The major international covenants on human
rights contain similar non-discrimination clauses. Specific inter-
national treaties have been adopted prohibiting discrimination
on the basis of sex or race. The rights approach, with its empha-
sis on non-discrimination (including on the grounds of limited
economic resources) implies rejection of a solely market-based
approach to the social good of health care and health status. Cost-
containment and cost-benefit analyses in the health care alloca-
tion remain important but need not be determinative in matters
of social goals relating to health.
As the WHO Declaration of Alma-Ata on Primary Health
Care states:

The existing gross inequality in the health status of the

people particularly between developed and developing coun-
tries as well as within countries is politically, socially and eco-
nomically unacceptable and is, therefore, of common concern
to all countries.35

It requires only cursory consideration to understand how

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frequently equality and prohibition of discrimination is violated
in many aspects of health status. In most countries, the health
status of racial or ethnic minorities is far worse than that of the
majority population. Environmental racism (the dumping of en-
vironmental wastes or governmental ignoring of pollution in ar-
eas inhabited by the poor) has been documented. Extensive dis-
crimination against women in health care and health status is
only beginning to be noted. Women's health issues have been
given less attention in medical research; women's health prob-
lems have attracted less interest than those from which men suf-
fer; and many common cultural practices affect women more
negatively than men. Dr. Jonathan Mann has pointed out that
societal discrimination and lack of respect for fundamental hu-
man rights directly affect the health status of the population. He
suggests that

..the thinling that led to the Universal Declaration of Hu-

man Rights and its list of fundamental and inalienable rights
may provide a more useful entry point into a thorough consid-
eration of the "conditions in which people can be healthy" than
the approaches traditionally used in medicine and public
health.36

Discrimination in relation to women's health is developed

more fully in Section V of this paper.

Participation
Participation of individuals and groups in matters that
affect them is essential to the protection of all human rights.
Democracy and human rights are frequently linked in current
rights discourse-and democracy means more than merely vot-
ing: it requires provision of information and informed participa-
tion.
WHO has recognized the importance of participation in
health matters. The Declaration of Alma-Ata on Primary Health
Care states, "The people have the right and duty to participate
individually and collectively in the planning and implementa-
tion of their health care."

Entitlement
The concept of a right implies entitlement to the subject
of that right. The Final Act of the Conference on Security and
Cooperation in Europe (better known as the Helsinki Accords)
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succinctly provides that individuals are entitled to "know and
act on their rights." Judge Buergenthal has written that the "rec-
ognition of the right to health as an internationally guaranteed
right...gives legal and political legitimacy to the claims for its
enjoyment. "37
This does not necessarily imply resort to lawsuits, which
may not always be the best means of asserting rights. Indeed, in
some legal systems, social rights are considered non-justiciable.
Other measures may be resorted to, such as administrative agen-
cies or tribunals or creation of the role of ombudsman to respond
to citizens' complaints. Audrey Chapman, in an American Asso-
ciation for the Advancement of Science publication on the right
to health care, has commented,

A rights approach offers a normative vocabulary that fa-

cilitates both the framing of claims and the identification of
the right holder. This means that the addressees of the rights
or duty-bearers [governments]...have the duty to provide the
entitlement, not to society in general, but to each member.
This standing has very important implications for efforts to
seek redress in cases where the entitlement is not provided or
the right violated.38

Interdependence of Human Rights

Human rights are interdependent. That is, particular rights
may depend on other rights for their fulfillment. The right of
freedom of association, for example, is closely related to that of
freedom of expression. Many other examples could be cited. As
has been frequently reiterated by human rights organizations, all
human rights and fundamental freedoms are indivisible and in-
terdependent.39 Therefore, the right to health cannot be effectively
protected without respect for other recognized rights. These in-
clude, in particular, both prohibition of discrimination, and the
right of persons to participate in decisions affecting them.

Limitations on Rights
Rights are generally not absolute in national or interna-
tional legal systems and may be subject to limitations on certain
grounds. Protection of public health is one of the accepted grounds
for which limitations are permitted in the International Covenant
on Civil and Political Rights and in other human rights instru-
ments. Under the Covenant, protection of public health is a per-
missible ground for limiting the rights to liberty of movement,

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freedom of religion, freedom of expression and the right to free-
dom of association.40 In point of fact, in various countries, quar-
antines and limitations on freedom of movement often have been
imposed for public health reasons. There is a danger that such
restrictions on rights may not be justified on health grounds. For
example, health professionals have emphasized that, on health
grounds, it is unjustified to impose quarantines, job discrimina-
tion, and restrictions on freedom of movement on persons who
are HIV positive. Limitations on rights must be scrutinized to
determine whether they are truly necessary. Under international
human rights law, national decisions to limit rights may be over-
seen by international monitoring committees, which can require
states to provide adequate justifications for rights limitations.

IV. Governmental Obligations and the Right To Health

What obligations to promote and protect the right to health
are incurred by states through ratification of treaties? As the Scot-
tish philosopher Tom Campbell notes, "Working out the specific
implications of general statements of human rights is a neces-
sary move if the rhetoric of human rights is to have a major im-
pact on the resolution of social problems."'41
The hearing on the Right to Health organized by the United
Nations' Committee on Economic, Social and Cultural Rights
(henceforth "ESC Committee") on 6 December 1993, referred to
earlier, is one of the rare (possibly unique) occasions on which
this question has been considered by a UN organ. The ESC Com-
mittee, which monitors implementation of the Economic Cov-
enant,42 invited interested organizations and individuals to present
their views on the scope of, and obligations relating to, Article
12 of the Economic Covenant. This article provides that States
Parties "recognize the right of everyone to the enjoyment of the
highest attainable standard of physical and mental health." In
addition to an extensive presentation by a member of the Com-
mittee and presentations by representatives of the WHO, some
20 organizations and individuals made presentations.43
Presentations emphasized the following aspects which
could serve as guidelines for definition of the right to health and
the obligations of states:
1) Article 12's listing of the steps to be taken by States Par-
ties to realize the right to health.
2) The importance of referring to specific goals and indica-

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 tors developed by WHO, particularly relating to Primary
Health Care and the Goal of Health for All by the Year
2000.
3) Fundamental principles common to respect for all human
rights: dignity, non-discrimination, participation, entitle-
ment. In this regard, several speakers referred to the ne-
cessity of special concern for the health needs of vulner-
able populations.
As with all other social and economic rights mentioned
in the Covenant, the obligation of states under the Covenant to
implement the right to health is a progressive obligation. A state
is not required immediately and fully to implement the right,
but only to "achieve progressively the full realization of the right"
(Article 2). However, the states parties are required by Article 2
to "take steps" to achieve the right. Those steps necessary to
achieve the full realization of the right to health are listed in the
second paragraph of Article 12:
a) the provision for the reduction of the still-birth rate and
of infant mortality and for the healthy development of
the child;
b) the improvement of all aspects of environmental and in-
dustrial hygiene and industrial hygiene;
c) the prevention, treatment and control of epidemic, en-
demic, occupational and other diseases; and
d) the creation of conditions which would assure to all medi-
cal service and medical attention in the event of sickness.
While these steps provide a starting point for understand-
ing the obligation to respect the right to health, their generality
makes it difficult to determine specific obligations involved. As
pointed out by a number of speakers at the ESC Committee's
hearing on the Right to Health, it is appropriate to have recourse
to the work of WHO to determine more specific means of reduc-
ing infant mortality, improving environmental and industrial
hygiene and preventing epidemic and other diseases-as well as
creating conditions to assure medical care. Several presenters at
the hearing emphasized the importance of such environmental
fundamentals as clean water and sewage disposal.
WHO has elaborated in considerable detail, in their pro-
gram on Primary Health Care and Health for All by the Year 2000,
the means that can be used most effectively by both economi-

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cally developed and developing countries to achieve the "highest
attainable standard" of health. Indeed, the editors of the PAHO
study on The Right to Health in the Americas regard the pro-
gram of Health for All by the Year 2000 as providing the most
important guide thus far to a state's responsibilities to protect
health. They write,

The goal of Health for All by the Year 2000 is, in fact, the
most concrete and useful definition of the programmatic social
right to health protection, and may more succinctly express
the common view of the responsibility of the state for the health
of its people.44

The Primary Health Care approach is described in the Dec-

laration of Alma-Ata, adopted in 1978 at an international WHO
conference. The essential aspects of that approach may be sum-
marized as follows:
1) an emphasis on preventive health measures (immuniza-
tion, family planning) more than on curative measures;
2) the importance of participation of individuals and groups
in the planning and implementation of health care;
3) an emphasis on maternal and child health care;
4) the importance of education concerning health problems;
5) high priority to be given in provision of health care to
vulnerable and high risk groups, such as women, children,
underprivileged elements of society;
6) equal access of individuals and families to health care at a
cost the community can afford.
WHO has also prepared a list of global indicators relating to
many issues of health status. Among them are indicators on per-
centage of GNP spent on health, the amount of international aid
allocated to health, and percentage of the population covered by
primary health care.45
It is striking that the Primary Health Care Approach of the
WHO emphasizes many aspects fundamental to any rights per-
spective, as outlined in the previous section: participation, equal-
ity, and concern for society's most vulnerable members.
WHO has also prepared a questionnaire to help member
states determine how well they are implementing the programs
of Primary Health Care and Health for All by the Year 2000.46
Whereas WHO does not itself monitor implementation of such
programs by member states, it nevertheless receives indications

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from member states of their own implementation evaluations.
The ESC Committee, on the other hand, is responsible for inter-
national monitoring of the right to health provisions of the Eco-
nomic Covenant and has found useful the guidance provided by
WHO goals and indicators.
It would be helpful if the ESC Committee and others at-
tempting to determine governmental right to health obligations
could draw on application of the right by other international and
national organs. Unfortunately, there is as yet little precedent.
In 1993 the World Health Assembly of the WHO requested
an Advisory Opinion from the International Court of Justice on
the legality of the use of nuclear weapons, given their health ef-
fects. The ICJ fixed 10 June 1994 as the time limit for submission
of written statements by WHO and its member states and subse-
quently extended the time limit to September 1994. The specific
question addressed to the Court for an Advisory Opinion was,

In view of the health and environmental effects, would

the use of nuclear weapons by a State in war or other armed
confliet be a breach of its obligations under international law
including the WHO Constitution?47

Although the question does not refer to specific provisions

of the WHO Constitution, the provision that "enjoyment of the
highest attainable standard of health is one of the fundamental
rights of every human being," and the provision that "govern-
ments have a responsibility for the health of their peoples which
can be fulfilled only by the provision of adequate health and so-
cial measures," would seem relevant. If the Court renders an ad-
visory opinion on this request we may have a major contribution
to understanding some of the international legal obligations re-
lating to health.48
Another case drawing on application of the right to health
occurred in 1985. That year, the Inter-American Commission on
Human Rights found a violation by Brazil of the American Dec-
laration of the Rights and Duties of Man's provision on the right
to preservation of health. The Commission found that the Bra-
zilian Government had failed to take timely and effective mea-
sures on behalf of the Yanomami Indians and had thereby vio-
lated, inter alia, Article XI of the American Declaration of the
Rights and Duties of Man providing that "every person has the
right to preservation of his health through sanitary and social
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measures relating to.. .medical care, to the extent permitted by
public and community resources."49
In aniother example, a recent decision of a national Su-
preme Court concerns the invocation of a constitutional provi-
sion on the right to health. In the 1993 case of Minors Oposa v.
Secretary of the Department of Environment and Natural Re-
sources (DENR),50 the Supreme Court of the Philippines reversed
a trial court that had dismissed a claim based on alleged viola-
tion of the Philippine constitutional provisions on health. (For
the text of the constitutional provisions see National Provisions
in section II above.) The case involved an effort to have logging
licenses revoked because of environmental damage they alleg-
edly caused. The Court found that a prima facie case had been
made for violation of the constitutional provisions on health and
the environment. The decision was particularly interesting be-
cause the Court found that a group of minors had standing to file
a class suit of this nature on behalf of themselves and succeeding
generations, on the basis of inter-generational responsibility. They
also held that invocation of the constitutional provisions in the
case did not constitute a political question. The Court set aside
dismissal of the claim by the trial court. While concurring in the
result, Judge Florentino Feliciano filed a concurring opinion stat-
ing that the constitutional provisions were not sufficiently pre-
cise to constitute a legal right and were rather a matter of consti-
tutional policy. He thus invoked a common argument regarding
general constitutional provisions relating to social and economic
rights (and, as well, regarding general provisions on such rights
in international instruments)-namely, that they are not suscep-
tible to application in a court of law; they are not justiciable
rights.5'
It has been noted that the obligation of states to protect
and promote economic and social rights involves three aspects:
(1) the obligation to respect-not to violate the right directly by
its actions; (2) the obligation to protect-preventing others from
violating the right; (3) the obligation to fulfill-the necessity for
the state to take measures necessary to ensure the right.52 In ap-
plying these obligations, it would seem that the state is obliged
to do nothing directly to injure health, such as committing tor-
ture by state agents. The obligation to respect can conceivably be
applied, as the WHO request to the ICJ for an advisory opinion
implies, to use of nuclear weapons, given their devastating health
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effects on the population. The obligation to protect-preventing
others from violating the right-might be considered as obligat-
ing the state to control tobacco companies' promotion of tobacco
use. Finally, the obligation to fulfill might be considered as re-
quiring the state to adopt primary health care with all that it
implies, including emphasis on preventive rather than curative
measures.
A number of speakers at the December 1993 hearing on
the right to health noted that, despite WHO's exemplary work in
developing goals and indicators through the Primary Health Care
Program and the program of Health for All by the Year 2000, the
goals are far from being achieved. Much remains to be done to
focus national and international attention on the promotion of
the right to health.

V. Two Issues Concerning the Right To Health

Among the many issues involved in determining govern-
mental obligations regarding the right to health, two have been
selected for particular consideration in this section: (1) economic
resources and (2) discrimination. In both instances, it is possible
to develop specific governmental obligations relating to health
status.

Economic Resources and the Right to Health

One of the common assertions relating to implementa-
tion of the right to health is the inability of poor countries to
provide an adequate level of health care or to provide the eco-
nomic development which is necessary for an adequate health
system. The cost of health care has also become a problem in
developed countries. These countries find the need for adequate
resources obvious, but experience increasing difficulty providing
adequate and universal health care. Obstacles to improving health
within states are often misallocation of resources, inequity in
health care, and inefficiency. The purpose of this subsection is to
demonstrate that all states have obligations under international
law with regard to the right to health and that measures that are
not costly can be taken to improve health status.

1) All ratifying states have obligations under Article 12

of the Economic Covenant regardless of their degree of economic
development.
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 Article 2(1) of the Economic Covenant, above, provides
that each State Party undertakes to take steps for progressive re-
alization of the rights enshrined in the Covenant "to the maxi-
mum of its available resources." This phrase has sometimes been
interpreted erroneously to imply that states with very limited
resources have no obligations under the Covenant. All countries,
however, have at least some "available resources"-even if se-
verely limited in comparison with other countries. Hence, under
the Covenant all ratifying states are obligated to respect the right
to health, regardless of their level of economic development. The
same paragraph of the Covenant also refers to the possibility of
states calling upon international assistance to achieve respect
for the right to health.
In 1986, a group of distinguished experts in international
law adopted "The Limburg Principles on the Implementation of
the International Covenant on Economic, Social and Cultural
Rights" at a meeting convened by the International Commission
of Jurists, the Faculty of Law of the University of Limburg and
the Urban Morgan Institute of Human Rights, University of Cin-
cinnati.53 The Principles specify that "The obligation of progres-
sive achievement exists independently of the increase in re-
sources; it requires effective use of resources available." (Article
23) They also assert that states parties are obligated "regardless
of the level of economic development, to ensure respect for mini-
mum subsistence rights for all" (Article 25) and that "resources
available" refers to "both the resources within a State and those
available from the international community through international
cooperation and assistance." (Article 26) Of course, the specific
obligations of a country will vary depending on resources.

2) Improved health contributes to economic growth.

The World Bank devoted its 1993 Report on World Devel-
opment (Investing in Health) to the importance of health issues
in economic development. The Report concluded that:

Improved health contributes to economic growth in four

ways: it reduces production losses caused by worker illness; it
permits the use of natural resources that had been totally or
nearly inaccessible because of disease; it increases the enroll-
ment of children in school and makes them better able to learn;
and it frees for alternative uses resources that would otherwise
have to be spent on treating illness.54

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 Investing in health, therefore, is a means for a developing
country to promote its economic growth, and justifies the prior-
ity given to it. Developing countries should therefore be concerned
with placing importance on health issues because, inter alia, it
makes sound economic sense.

3) There is no automatic link between resources and

health status.
It is obvious that, while promoting health contributes to
a country's economic development, a lack of resources often cor-
relates with poor national health. The health of citizens in low-
or middle-income countries is, in general, far worse than that in
high-income countries. Child mortality rates are roughly 10 times
higher than those in the established market economies, life ex-
pectancy is far lower, death rates among children are far higher.
Facts and figures on the extent of malnutrition and health prob-
lems in many developing countries are staggering.
Nevertheless, the correlation between a lack of resources
and poor national health does not always exist. Certain low- and
middle-income countries show considerably better health statis-
tics than other developing countries. Thus, citizens of Sri Lanka
in 1991 had a life expectancy at birth of 71 years-nearly the
same as that for many high-income countries and much higher
than the average for other low-income countries. Citizens of China
had a life expectancy at birth of 69 years-also a figure much
higher than that of other low-income countries.53 So, we see that
factors other than income level are significant in terms of health
status.
WHO has pointed out that "merely to increase incomes
will not guarantee health. While there is a close relationship be-
tween health and income at the very lowest income levels, as
incomes begin to rise health hazards associated with economic
development begin to emerge." Moreover, there is a difference in
statistics relating to health status among high-income countries.
In 1991, the United States had an infant mortality rate of nine
per 1,000 live births, while the rate for Japan and Switzerland was
considerably better at five per 1,000 births.

4) Cost-effective means of promoting health.

Given the shortage of resources in developing countries
and the increasing cost of health care in high income countries,

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special attention should be focused on the most effective use of
resources to increase the level of health in both poor and rich
countries.
WHO, in its Global Strategy for Health for All by the Year
2000, provided guiding principles that a State should follow to
achieve its most cost-effective means of improving health sta-
tus: (1) emphasis on preventive, rather than curative, health mea-
sures and (2) adoption of primary health care as the basic orienta-
tion of health policy. Failure to do so, according to WHO, consti-
tutes misallocation of health resources. Of course, as mentioned
earlier, these general statements must be converted into practi-
cal measures. Some cost-effective means for promoting health
enumerated by WHO and by public health experts include:
1) emphasis on preventive rather than curative measures;
2) promotion of breast-feeding;
3) discouragement of tobacco use.
In a given population, many health expenditures lead to
relatively little increase in health status of the population. This
results in an emphasis by international organizations on increased
expenditures for preventive rather than curative measures. WHO
has reported,

...most conventional health care systems are becoming

increasingly complex and costly and have doubtful social rel-
evance. They have been distorted by the dictates of medical
technology and by the misguided efforts of a medical industry
providing medical consumer goods to society.56

The World Bank has stressed that,

Governments in developing countries should spend far

less-on average, about 50 percent less-than they now do on
less cost-effective interventions and instead double or triple
spending on basic public health programs such as immuniza-
tions and AIDS prevention and on essential clinical service.57

An aspect of maternal and child health that has been con-

sistently emphasized by WHO, most recently by the 1993 World
Development Report, is the importance of breast-feeding. Con-
sidering it one of the most cost-effective means of increasing the
health status of a population, WHO has not only devoted a great
amount of attention to the promotion of breast-feeding, but has

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also, together with non-governmental organizations and scien-
tific and medical organizations, developed and promoted the In-
ternational Code of Marketing of Breast-Milk Substitutes. This
restricts certain marketing practices used to sell breast-milk sub-
stitutes in order to promote breast-feeding.
Because of the emphasis on developing countries during
adoption of the International Code, it has been overlooked that
breast-feeding is an important health issue in high-income coun-
tries. A 1991 study in the United States points out, for example,
that that country's decline in breast-feeding in recent years is a
dangerous trend.58
Another cost-effective means of promoting health, accord-
ing to WHO and to public health experts, is smoking cessation.
It has been estimated that if current tobacco consumption trends
continue, about 150 million children alive today will die of to-
bacco-induced diseases.59 Evidence overwhelmingly suggests that
tobacco smoking is the major cause of lung cancer, and is an im-
portant cause of cancers of the oral cavity, upper respiratory and
digestive tracts, and bladder. Smoking has been reported as a cause
of low birth weight of infants. In light of these facts, states that
have undertaken a commitment to the right to health through
ratification of the Covenant should adopt measures to discour-
age tobacco use. These could include restrictions on advertising
of tobacco products; taxes on sales of tobacco products; and edu-
cational programs on detrimental effects of tobacco consump-
tion. Growth of tobacco should be discouraged and, if possible,
adverse economic consequences be compensated by economic
measures (in the case of developing countries, possibly by assis-
tance from international organizations). It should be noted that
certain high-income countries adopt measures to discourage to-
bacco use of in their own countries, yet encourage exportation of
tobacco to other countries, including developing countries,
through export subsidies.60 This constitutes an egregious viola-
tion of the right to health.
These cost-effective measures are only a few of those that
should be taken by all countries-both developed and develop-
ing-to limit the cost of improved health care and health status.
Even states with limited resources could take these measures to
fulfill their obligation to respect the right to health.

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Non-Discrimination: Women's Right to Health
Discrimination against women, in various forms, is nearly
universal, although more severe in some countries than others.
This widespread societal discrimination has serious consequences
for the health of women and children-and therefore, for societ-
ies as a whole. The role of women in society demonstrates that
one of the most effective ways of improving a nation's health is
through educating its women.
WHO has provided an invaluable guide to women's right
to health in its recent publication, Human Rights in Relation to
Women's Health: The Promotion and Protection of Women's
Health Through International Human Rights Law.6' Prepared by
Professor Rebecca J. Cook, it surveys widespread discrimination
against women and cites the resulting negative impact, not only
on the health of women, but also on entire communities. In addi-
tion, the publication fully analyzes states' obligation under in-
ternational human rights law to protect the health of women.
Throughout the world, discrimination against women
takes many forms: inequity in pay, educational disadvantages,
and cultural factors giving women a lesser role in the commu-
nity. Many health risks incurred by women are not incurred by
men: e.g., domestic violence, female genital mutilation, lesser
attention to women's health in medical research, problems in
reproductive health, lack of education for family planning, and
special health risks for women at work.
Cook cites the Economic Covenant and the Women's Con-
vention as setting general guidelines for the protection of women's
right to health, but looks to WHO's women's health indicators
and criteria to interpret obligations in the two treaties. Indica-
tors of health status (such as statistics on longevity and provi-
sion of health services) may be used to determine whether a state
is meeting its obligations to promote the right to health. As Cook
points out, however, most statistics are not disaggregated accord-
ing to sex and regions. Hence, for example, it may be impossible
to determine whether health services in a particular country are
reaching women in rural areas. For this reason, both WHO and
UNICEF have stressed the need for disaggregation of health sta-
tistics.
Cook also points out that the states' obligation to respect
health may require both negative and positive action on their
part. For instance, a state should not obstruct access to informa-

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tion regarding sources of HIV infection, but should undertake a
public education program to provide that information. Women's
rights to freedom from discrimination, to survival, to liberty and
security of person, to family life and private life, and to educa-
tion are all closely related to their rights to health and health
care.
The obligation to respect women's health is discussed in
relation to the right to life. Cook points out that,

This right has traditionally been discussed only in the con-

text of the obligation of states parties to ensure that courts ob-
serve due process of law before capital punishment is imposed.
This understanding of the right to life is essentially male-ori-
ented, since men assimilate the imagery of capital punishment
as more immediate to them than death from pregnancy or
labour. Feminist legal approaches suggest that this interpreta-
tion of the right ignores the historical reality of women, which
persists in regions of the world from which come almost all of
the 500,000 women estimated to die each year from pregnancy-
related causes...62

A number of suggestions are made in this WHO publica-

tion regarding the obligations of states to respect women's health.
Access to information on family planning, elimination of spou-
sal authorization for certain health services, prohibition of in-
voluntary sterilization, and emphasis on the importance of in-
formed consent to therapeutic interventions are pointed out as
being important means of protecting women's health.
WHO has established a Commission on Women's Health,
which will continue the effort to define the specific content of
the right to health as it relates to women. WHO can make a sub-
stantial contribution to the efforts of the ESC Committee and
other human rights organs to implement the right to health. This
study by Professor Cook is an excellent contribution to those
efforts.

Conciusion
Health issues recently have attracted major national and
international attention. They have been perceived as significant
aspects of economic development, environmental issues, and the
rights of children-all currently important international concerns.
In point of fact, the World Bank devoted its entire 1993 World
Development Report, Investing in Health, to the relation of health

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to economic development. The Report emphasized the appalling
discrepancy between health status of rich and poor countries, and
underscored the need for attention to health status and health
care in matters of economic development. In addition, UNICEF's
annual reports on the State of the World's Children emphasize
the necessity for improving the health of children in all coun-
tries. At the 1991 World Summit on Children, many of the goals
agreed to by States centered on health concerns.
The Rio Conference on Environment and Development
brought environmental issues to the fore internationally, and
environmental advocates have since focused considerable atten-
tion on health issues arising from environmental pollution. WHO
and UNICEF have been primarily responsible for focusing inter-
national attention on health issues.
Despite these gains, the binding legal obligations in relation
to health have not been sufficiently recognized and emphasized.
The 1993 World Development Report, for example, makes no
reference to legal obligations concerning the promotion of health.
Some of the reasons for the failure to refer to legal obligations
concerning health have been developed in this paper: lack of clar-
ity in the meaning of the obligations, paucity of national and
international decisions defining the right, and the relative new-
ness of the concept of the right to health. Nevertheless, the legal
obligations need to be recognized and an effort made to spell out
their implications.
Development experts, human rights activists and scholars,
international organization personnel, and public health experts
should collaborate in the effort to further define the scope and
legal obligations of the right to health. WHO and UNICEF could
make significant contributions. This suggestion presupposes that
the concept of a "right to health" has much to offer in the protec-
tion and preservation of the health of the world's citizens.
The editors of the PAHO publication on The Right to Health
in the Americas have emphasized the inter-relationship of law
and health issues. In the Editors' Preface expressing the aims of
their study, they write:

The purpose of this book is twofold: first, to contribute to

a better understanding among lawmakers of the importance of
a right to health; and second, to promote a greater awareness
among health professionals of the role of law in health. It was
hoped that in setting forth the importance of a right to health,

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 lawyers-whether or not they were familiar with the law of
international human rights or the importance of health in the
modern world-would be enlightened as to the critical nature
of this issue. At the same time, it was expected that health
professionals would learn the importance of law to the practice
of their profession and would become more sensitive to and
aware of the consequences of what are, essentially, legal
choices.63

It has been possible in this article only to sketch some of

the many issues connected with the right to health. Numerous
other issues relating to the subject remain to be considered. Al-
though the paper discusses issues of women's health and discrimi-
nation, there are equally serious issues relating to discrimina-
tion in health matters against racial minorities and other vulner-
able groups. There is overwhelming evidence of the serious dif-
ferences in health status among various populations in countries
based on ethnic differences. Some of the other questions that need
to be examined in relation to the right to health are traditional
practices affecting health; medical experimentation; problems
concerning medical manpower; discrimination; AIDS; and con-
flicts between the right to health and other rights.
While the right to health has been discussed in this essay
from the legal point of view, it is a concept that requires a multi-
disciplinary approach. The international organs called upon to
monitor the right to health, recognized in international treaties,
must be able to draw upon the knowledge of those trained in the
health disciplines.

References
1. Constitution of the World Health Organization, in Basic Documents,
Thirty-ninth Edition, World Health Organization, 1992.
2. Hernan L. Fuenzalida-Puelma/Susan Scholle Connor, eds., The Right to
Health in the Americas (Pan-American Health Organization, Scientific
Publication No. 509, Washington, D.C.) 1989. This is an outstanding study
and readers who desire a more comprehensive discussion of the concept of
the right to health than can be provided in the short space of this article will
find this 716-page volume highly rewarding, particularly pages 596-607 on
The Concept of the Right to Health. For a discussion of the meaning of the
word "health" see page 596.
3. Presentations at the Workshop were subsequently published: Rene-Jean
Dupuy, ed. The Right to Health as a Human Right, Workshop, The Hague
Academy of International Law and the United Nations University (Sijthoff
& Noordhoff, Alphen aan den Rijn, The Netherlands) 1979.
4. International Covenant on Economic, Social and Cultural Rights, G.A.
Res. 2200 (XXI), U.N. GAOR, Supp. (No. 16) 49, U.N. Doc. A(6316) 1966;
also UN, Human Rights--A Compilation of International Instruments,

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Geneva (1988), p. 7. The terminology "covenant" or "convention" in
international law is used in the same sense as "treaty".
5. UN Information Service, Press Release HR/3604, 6 December 1993.
6. Human Rights in relation to Women's Health, The Promotion and
Protection of Women's Health through International Human Rights Law,
prepared by Rebecca J. Cook, WHO/DGH/93.1.
7. Convention on the Elimination of All Forms of Discrimination against
Women, G.A. Res. 24/180, 34 U.N. GAOR Supp. (No. 46) 193, U.N. Doc. A/
RES/34/180 (1980).
8. Convention on the Rights of the Child, General Assembly, Res. 44/25, 44
[Link], Supp. No. 49, U.N. Doc. A/44/736 (1989).
9. Supra note 2, at 600, 688.
10. Supra note 2, 3-16.
11. Supra note 3.
12. Supra note 3, 54-72, at 54-55.
13. Thomas J. Bole and William A. Bondeson, Rights to Health Care,
(Dordrecht: Kluwer Academic Publishers), 1991.
14. Thomas J. Bole, The Rhetoric of Rights and Justice in Health Care, id.,
at 7.
15. Tom L. Beauchamp, The Right to Health Care in a Capitalist Democ-
racy; Alan E. Buchanan, Rights, Obligations and the Special Importance of
Health Care; Norman Daniels, Equal Opportunity and Health Care Rights
for the Elderly, supra note 14.
16. President's Commission for the Study of Ethical Problems in Medicine
and Biomedical and Behavioral Research, Securing Access to Health Care,
The Ethical Implications of Differences in the Availability of Health
Services, (Washington, D.C.: Government Printing Office) 1983.
17. A detailed report of the project is contained in Audrey R. Chapman,
Exploring a Human Rights Approach to Health Care Reform (American
Association for the Advancement of Science, Washington, D.C.) 1993.
18. Ruth Roemer, The Right to Health Care, supra note 2, 17 -23.
19. Id., at 17.
20. Supra note 2, at 600.
21. Id.
22. G.A. Res. 217A (III), U.N. Doc. A/8 10, at 71 (1948).
23. OAU Doc. CAB/LEG/67/3 Rev. 5 (1981)
24. [Link]. 2106A (XX), 21 December 1965
25. Done at San Salvador, November 24, 1988, 28 International Legal
Materials (I.L.M.) 156 (1989). This convention has not yet come into force.
26. Approved by the Ninth International Conference of American States,
Resolution XXX, Bogota, 1948. Pan-American Union, Final Act of the Ninth
Conference of American States 38-45 (Washington, D.C., 1948). For a
statement concerning the legal status of the Declaration, see note 50 supra.
27. Supra note 2, at 665.
28. For an interesting decision of the Philippine Supreme Court interpreting
these provisions with regard to environmental damage see text relating to
note 51 concerning Miners Oposa v. Secretary of the Department of Environ-
ment and Natural Resources (DENR), 33 International Legal Materials
(ILM.) 173 (1994). See also Health: A Human Right Violated, Philippine
Human Rights Update, International Edition, Vol. 3, No. 5, Jan. 15-Feb. 14,
1988.
29. French Constitution of 1958, Constitutions of the Countries of the
World, T.S.W. Lee and Osamu Nishai, eds., 1990. See also Louis Dubouis, Le
L?gislateur Franpgais Face au Conflit du Droit a la Sant? et des Libert?s
Individualles: Problemes Actuels; Didier Tabuteau, Le Droit a la sant?:
quelques elements d'actualit?, Droit Social, No. 4, Avril 1991.
30. Constitutions of the World, Id.

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31. Ruth Roemer, supra note 2, at 20. In India and Ireland, directive prin-
ciples referring to governmental obligations concerning health are included
in the Constitution. Although such principles are not justiciable, they have
not been without effect, as one commentator has noted. Bertus de Villiers,
citing the Indian experience, has written that, as a result of the inclusion of
Directive Principles in the Indian Constitution
"The courts are much more aware of and attentive to their obligation to
implement socio-economic uplift programmes and to ensure decent welfare
for all. The state has a duty to all citizens to adhere to that part of the
Constitution which describes the directive principles as 'fundamental' to
the governance of the country. The courts have therefore been using the
directives as an instrument to determine the extent of public interest in
order to limit the extension of fundamental rights. In doing so they have
upheld a number of statutes on the grounds of public interest, which in
other circumstances may have been nullified." De Villiers, "Directive Principles
of State Policy and Fundamental Rights: The Indian Experience," 8 South African
journal on Human Rights 29 (1992). See also Brian Walsh, "Existence and Meaning of
Fundamental Rights in Ireland," 1 Human Rights Law journal 171 <1980); Craig Scott
and Patrick Macklem, Constitutional Ropes of Sand or fusticiable Guarantees?
Social Rights in a New South African Constitution, 141 University of Pennsylvania
Law Review no. 1, 1, (November 1992).
32. Ronald Dworkin, Taking Rights Seriously, (Harvard University Press,
Cambridge), 1977.
33. Henry Shue, Basic Rights, Subsistence, Affluence and US Foreign
Policy (Princeton University Press, Princeton, N.J.) 1980.
34. Anne F. Bayefsky, "The Principle of Equality or Non-Discrimination in
International Law," Human Rights Law journal, vol. 2, 34 (1990)
35. Declaration of Alma-Ata, adopted at the International Conference on
Primary Health Care, September 12, 1978, World Health Organization,
Geneva.
36. Jonathan M. Mann, Presentation to the Committee on Economic, Social
and Cultural Rights, Hearing on the Right to Health, Geneva, 6 December
1993.
37. Supra note 2, at 10.
38. Chapman, supra note 17, at 26.
39. Article 1(A) of G.A. Res. 32/130; 16th December 1977.
40. G.A. Res. 2200, 21 UN GAOR Supp. (No. 16) at 49, UN Doc. A/6316,
1966. Articles 12, 18, 19 and 22.
41. Tom Campbell, Introduction: Realizing Human Rights, in Campbell,
Goldberg, McLean and Mullen, (eds.), Human Rights from Rhetoric to
Reality (1986), 3.
42. For a description of the establishment of the Committee, see Philip
Alston, Out of the Abyss: The Challenge Confronting the New U.N.
Committee on Economic, Social and Cultural Rights", Human Rights
Quarterly, vol. 9, 332-381 (1981).
43. See UN Press Release HR/3604, 6 December 1993.
44. Supra note 2, at 603.
45. Development of Indicators for Monitoring Progress Towards Health for
All by the Year 2000. WHO, Geneva, 1981.
46. Third Monitoring of Progress, Common Framework, CFM3, Implemen-
tation of Strategies for Health for All by the Year 2000, WHO, Geneva, 1993.
47. ICJ, Legality of the Use by a State of Nuclear Weapons in Armed
Conflict (Request for Advisory Opinion), Order, 13 September 1993, General
List, No. 93.
48. The forthcoming meeting of the World Health Assembly in May 1994
could possibly withdraw the request for the Advisory Opinion.
49. Resolution No. 12/85, Case No. 7615, Annual Report of the Inter-

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American Commission on Human Rjghts, 1984-85. Thomas Buergenthal,
The-Right to Health in the Americas, supra note 3, at 11: "Although the
American Declaration, not unlike the Universal Declaration, was deemed
not to be legally binding at the time it was proclaimed, it has over the years
come to be viewed as a normative instrument of the inter-American system
and the most authoritative catalog of the human rights that the States'
Parties to the OAS Charter are under a duty to promote." For a discussion of
the role of the Inter-American Commission in implementing the American
Declaration see T. Buergenthal, R. Norris and D. Shelton, Protecting Human
Rights in the Americas: Selected Problems,2d ed. 1986.
50. Minors Oposa v. Secretary of the Department of Environment and
Natural Resources (DENR), July 30, 1993, International Legal Materials
33(173) (1994).
51. Id.
52. Asbjorn Eide, "Realization of Social and Economic Rights and the
Minimum Threshold Approach," Human Rights Law Journal,vol. 10, 35, 37
(1989),
53. The Limburg Principles have been reproduced in Human Rights Quar-
terly, vol. 9, No. 2 (1987).
54. World Development Report 1993: Investing in Health, (published for
the World Bank by Oxford University Press, New York), 1993.
55. Id.
56. Global Strategy for Health for All by the Year 2000, WHO, Geneva, 38.
57. World Development Report, supra note 54, at 7.
58. This 1991 study by Drs. David Rush and Alan S. Ryan was reported in
The New York Times, Oct. 3, 1991.
59. Dr. Hirosi Nakajima, Director-General of the WHO, in his Message on
World No-Tobacco Day, May 1990.
60. See "End Government Support of US Tobacco Abroad", Christian
Science Monitor, April 13, 1992.
61. WHO/DGH/93.1, Geneva, 1993.
62. Id.
63. Supra note 2, at xv.

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