In confronting the insalubrious ramifications of globalization, human rights scholars and activists have argued for greater national and international responsibility pursuant to the human right to health. Codified seminally in Article 12 of the International Covenant on Economic, Social and Cultural Rights, the right to health proclaims that states bear an obligation to realize the “highest attainable standard” of health for all. However, in pressing for the highest attainable standard for each individual, the right to health has been ineffective in (...) compelling states to address burgeoning inequalities in underlying determinants of health, focusing on individual medical treatments at the expense of public health systems. This article contends that the paradigm of individual health, focused on a right to individual medical care, is incapable of responding to health inequities in a globalized world and thereby hampers efforts to operationalize health rights through public health systems. While the right to health has evolved in international discourse over time, this evolution of the individual right to health cannot address the harmful societal ramifications of economic globalization. Rather than relying solely upon an individual right to medical care, envisioning a collective right to public health – a right applied at the societal level to address underlying determinants of health – would alleviate many of the injurious health inequities of globalization. (shrink)

The conference on Health, Law and Human Rights: Exploring the Connections held last fall in Philadelphia was a telling moment in the complex history of a movement — the “health and human rights movement” for want of a better term — inaugurated by the pioneering work of Jonathan Mann, whose memory the Conference honored. The François-Xavier Bagnoud Center for Health and Human Rights — founded by Mann and carrying on his legacy — was pleased to co-sponsor the conference. The conference (...) and this symposium issue containing the main papers provide an excellent opportunity to take stock of that movement by means of a commentary based on the papers. This commentary is made from a resolutely human rights perspective, with the aim of engaging the authors in a dialogue on whether and to what extent each article advances knowledge about the interconnectedness and mutually reinforcing character of health and human rights, which is the lasting legacy of Jonathan Mann. (shrink)

The conference on Health, Law and Human Rights: Exploring the Connections held last fall in Philadelphia was a telling moment in the complex history of a movement — the “health and human rights movement” for want of a better term — inaugurated by the pioneering work of Jonathan Mann, whose memory the Conference honored. The François-Xavier Bagnoud Center for Health and Human Rights — founded by Mann and carrying on his legacy — was pleased to co-sponsor the conference. The conference (...) and this symposium issue containing the main papers provide an excellent opportunity to take stock of that movement by means of a commentary based on the papers. This commentary is made from a resolutely human rights perspective, with the aim of engaging the authors in a dialogue on whether and to what extent each article advances knowledge about the interconnectedness and mutually reinforcing character of health and human rights, which is the lasting legacy of Jonathan Mann. (shrink)

This paper argues that there are instances in which tobacco control litigation is strengthening the justiciability of the right to health and health-related rights. This is happening in different parts of the world, but in particular in Latin America. In part this is because, to a certain extent, tobacco control litigation based on fundamental rights overcomes the traditional arguments against economic, social and cultural rights adjudication: the anti-democratic argument, the lack of technical competency argument, the problem of the misallocation of (...) scarce public resources and the problem of the implementation of judicial decisions. As we analyzed in this paper, tobacco control cases based on fundamental rights are allowing courts to elaborate on broader standards of judicial adjudication of social rights, e.g., expand notions of standing, progressive realization, and state obligations enshrined in the right to health. Key to this judicial trend is the Framework Convention on Tobacco Control, which provides a legal standard — supported by scientific evidence — defining concrete measures states should take to address the tobacco epidemic, and thus giving content to the right to health as it relates to tobacco control. (shrink)

There is perhaps no area of law that so effectively protects human health and thereby advances the right to the highest attainable standard of health, as tobacco control. Globally, tobacco is responsible for 1 in 10 adult deaths, and is on track to kill 10 million people per year, mostly in developing countries, representing a US$200 billion drain on the global economy. Yet experience in recent decades has shown that a range of tobacco control measures, such as comprehensive bans on (...) smoking in public places, tobacco taxes, and limits on tobacco advertising, can greatly reduce smoking prevalence. These measures have slowly curtailed the epidemic, despite strong opposition from various sectors led by the tobacco industry. It is fitting that tobacco control is the focus of a recent, widely ratified global treaty and of increasing national litigation, often directly linked to countries’ human rights commitments. (shrink)

Recent years have seen an increase in the turn to rights discourse within the context of access to health and specifically health care. Developments took place at both the national and global levels, with a significant increase in right to health litigation around the world1 and developments at the international level, such as the appointment of a Special Rapporteur on the Right to Health and the adoption of a “General Comment” on the topic by the UN Committee on Economic, Social (...) and Cultural Rights. (shrink)

In recent years we have noticed an increase in the turn to rights analysis in litigation relating to access to health care. Examining litigation, we can notice a contradiction between on the one hand the ability of the right to health to reinforce privatization and commodification of health care, by rearticulating claims to private health care in terms of human rights, and on the other hand, its ability to reinforce and reinstate public values, especially that of equality, against the background (...) of privatization and commodification. While many hope that rights discourse will do the latter, and secure that access to health care should occur on the basis of need as opposed to ability to pay, it has actually been used to attempt to advance arguments that will allow access to private or semiprivate health insurance in ways that may exacerbate inequality. These types of arguments won ground in the Canadian Supreme Court, but were rejected by the Israeli Supreme Court. In order to avoid this co-optation of right to health, a notion of rights that incorporates the principles of substantive equality is required. Otherwise, one of the unintended consequences of inserting rights analysis into public health care may be that it will reinforce rather than challenge privatization in a way that may increase inequalities. (shrink)