Toward a theory of a right to health: Capability and incompletely theorized agreements

One would be hard pressed to find a more controversial or nebulous human right than the right to health - a right that stems primarily, although not exclusively, from Article 12 of the International Covenant on Economic, Social and Cultural Rights (ICESCR). While activists, non-governmental organizations, and scholars have made significant progress in promoting a human rights approach to health and the field of health and human rights more generally, the question of a philosophical and conceptual foundation - a theory - for the right to health has fallen through the cracks that emerge from an interdisciplinary intersection of medical ethics, international relations, international human rights law, health policy, health law, and public health law. This Article offers a philosophical justification for a right to health. As such it makes a case for the right to health as a meaningful and operational right and discusses the degree to which this right is necessarily justifiable and enforceable as prescribed in international law. The theoretical framework proposed in this Article builds on and integrates Aristotle's political theory, the capability approach, and a social choice paradigm known as incompletely theorized agreements. This Article draws on these perspectives to develop a theory of a right to health and to explicate societal obligations, both state and non-state, for progressive realization of this right. Finally, this Article argues that sustaining the effort to realize a right to health requires individual and societal commitments to what I call public moral norms. In other words, this Article argues for treating the right to health as an ethical demand for equity in health. This ethical demand will likely involve legal instruments for enforcement, but more likely will require individuals, states, and non-state actors to internalize public ethical norms to enhance implementation and compliance with a right to health in international human rights policy and law.
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