Is Health a Human Right?
If you would ask a representative sample of readers of this blog whether health is a human right, a large majority would probably answer "yes". And on face value, they are right; e.g., article 12 if the ICESCR clearly recognises "... the right of everyone to the enjoyment of the highest attainable standard of physical and mental health." Or take the Universal Declaration of Human Rights (UDHR): its article 25 states that everyone "...has the right to a standard of living adequate for the health ... of himself and of his family, including ... medical care ...". So it is safe to conclude that health is a human right, isn't it?
Well, not entirely. First of all, the UDHR is probably not binding (‘probably' because there is some discussion around customary international law). This was exactly why in the years after the adoption of the UDHR, the International Covenant on Civil and Political Rights (ICCPR) and the ICESCR were developed. Unlike the UDHR, both the ICESCR and the ICCPR are treaties. In principle, states have complete freedom to become party to a treaty or not; however, once they are, they are fully bound by its provisions.
But how about article 12 of the ICESCR then? That one is binding to for at least the treaty partners, right? And as there are now 160 country-parties to the treaty, that would give it almost global force.
Well, yes, but as it turns out, the right to health of article 12 is not as absolute as it might seem at first glance. Part of it is already contained in the article itself, where it only recognises the right to the highest attainable standard of health. In fact, it is not even a right to be healthy: in its influential interpretation of article 12 of the ICESCR, the UN Committee on Economic, Social and Cultural Rights (CESCR) clarifies that this is a right to be as healthy as possible given the context of the society one lives in and of one's "biological and socio-economic preconditions". However, the CESCR does make clear that the ‘right to health' implies a duty for governments to put into place policies, plans, and actions that will progress the health status of their citizens as much as possible.
An important limitation on the right to health is spelled out in article 2 of the ICESCR: it is circumscribed by available resources. However, this does not imply that a government can disavow its responsibility for health by saying that it does not have the means to do anything about it: the principle of "progressive realization" requires it to take deliberate, targeted, and above all concrete steps towards the best possible health status.
Finally: human rights are never absolute: various human rights can (and often are) applicable to one issue, and can sometimes be invoked to support diametrically opposite viewpoints; e.g., the right to life for the foetus versus the right to access to health services for the mother in the case of abortion.
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