Health and Human Rights - Four Things to Consider

(The Cyrus Cylinder, the world's first documented national legislation of human rights. Picture courtesy of Kaaveh Ahangar.)

1. One of the most important means to the realisation of the right to health is national legislation. International treaties are binding for its parties, i.e. the states, but normally those states' citizens have no way to directly claim their rights (with some exceptions based on regional human rights treaties in e.g. Europe). Incorporation of their norms into national law makes it possible for its citizens to use these norms in its national courts of law. This can be done either explicitly (by enacting laws that repeat or elaborate these laws) or implicitly (by legislating that treaties have so-called ‘direct action'). In fact, there have been cases of the successful use of the right to health as enshrined in local legislation to force governments to act; e.g. in the case of the Treatment Action Campaign in South Africa (which managed to force the national government to treat AIDS patients with anti-retroviral drugs), and in similar cases in Venezuela and India.
2. I always find it very surprising that there is no generally accepted theory of global health law. This is remarkable in view of its importance and of the existence of theories of law for most other areas. It will be clear that for the further development of legal instruments for global health, such a theory will be indispensable.
3. It should not be forgotten that universal rights are often balanced by universal duties. Solomon R. Benatar probably expresses this best in his 2001 article on South Africa's transition: "[w]ho will meet the duties required to honour rights if members of society see themselves only as holders of rights?" This is especially important in the context of health: almost any action will have repercussions on somebody's health, and hence your right to health places obligations on others, usually your government. The Trieste Carta of Human Duties, although slightly whimsical, can be a helpful tool to draw attention to this other side of the coin.
4. Although we will probably all agree that it is just as well that there is a human right to health, it is doubtful whether it has any discernible impact on the health status of populations yet. A recently published study showed no correlation between ratification of a number of human rights treaties and the health status of populations. Does that mean that we should abandon health as a human right, as it does not help us in the end anyway? No, for one very simple reason: we are still at the beginning. Most countries have only recently included the right to health in their legal systems (see point 1.), and the use of the right in legal argument and legal challenges is even newer. As the legal battle for health progresses, we should see a bigger impact.

Finally: if you are interested in the interplay between human rights and global health, your first point of call (no, second, after this blog, of course) should be the excellent twice-yearly journal Health and Human Rights, and the linked OpenForum blog for updates in between.