as noted, the “right to health” under international law, as set out in the ICESCR and elsewhere, does extend beyond health care. Often when we think of obligations relating to health, we think of medical care. But in fact, the reasons people are able to be healthy are generally much more related to public health interventions—such as clean water, sanitation, nutritional measures, and control of occupational hazards—than to care received at a hospital or local health clinic. As was evident in Baborigame, this is particularly true for children. Unsafe drinking water, inadequate availability of water for hygiene, and a lack of access to sanitation contribute to about 1.5 million child deaths each year and account for almost 90 percent of deaths from diarrhea.24 These conditions also contribute to the spread of infectious disease, and of the more than seven and a half million children who died before their fifth birthday in 2010 almost two-thirds died of preventable infectious causes.25
These public health interventions are frequently invisible compared to medical interventions—unless you are in a country or place, such as Baborigame in the early 1990s, that does not have them, when that becomes painfully apparent. Just as with medical care, these public health interventions require institutional arrangements and societal commitments. They cannot be achieved by individuals acting alone. Consequently, it makes sense that these “preconditions to health” or “underlying determinants” are part of the right to health.
Leveling the Playing Field and a Minimum Threshold Level
As in Baborigame, extreme poverty frequently manifests itself as lack of access to the most basic preconditions of health, as well as access to care. The consequences of considering health and other ESC issues as rights are that the state then has a duty to “level the playing field” in terms of access to basic preconditions of health and care. These are not simply conditions that can be left to the market. A right to health does not call for equalization of all outcomes, or all incomes, though, and in Chapter 7 we discuss in much greater depth the extent to which applying human rights frameworks to health demands substantive equality.
In addition to a commitment toward equalizing access and entitlements, however, there is also an obligation on the part of the state to provide certain minimum standards to the entire population. The duty to provide such a minimum threshold level is not subject to progressive realization under international law or certain national jurisprudence; it is an immediate obligation that stems from what is necessary to protect the dignity of the most disadvantaged members of society.
The concept of an “existential minimum” or “vital minimum,” including access to food, housing, and social assistance, as well as to health care, for the worst off was set out early in the jurisprudence of the German constitutional court, and is tied to the concept of human dignity. It has subsequently been adopted by constitutional courts in a number of South American and European countries. As in Germany, which linked the notion of a “vital minimum” to the purposes of the state, in Colombian constitutional jurisprudence, the notion of a “vital minimum” (mínimo vital) has also been explicitly tied to the political formulation of Colombia as a “social state of law” (estado social de derecho) under the 1991 constitution, and the protection of human dignity. Thus, through social protection systems and otherwise, these states have a legal, not just moral, obligation to ensure a minimum threshold, which is necessary to enable human dignity.
In international human rights law, the UN Committee on Economic, Social and Cultural Rights (CESCR) has also adopted the notion of a minimum core content as being both essential to enabling individuals to live with dignity as well as for the appropriate understanding of ESC rights as real rights.26 The CESCR has articulated the minimum core in different ways over the years. In its third General Comment, in 1990, deprivations of a significant number of citizens of “minimum essential levels” of ESC rights under the ICESCR, including essential foodstuffs, essential primary health care, basic shelter and housing, and the most basic forms of education, would be a presumptive violation of state obligations. In CESCR’s General Comment 14, issued in 2000, the “basic obligations” of states’ parties to the ICESCR with respect to the right to health in particular are far more extensive and also include measures relating to equitable distribution of health facilities, goods and services, and national plans of action with respect to health.27
The concept as well as the application of a minimum core content in international human rights has received scholarly critique for, among other things, its lack of ambition and clarity.28 Nevertheless, a legal obligation to provide a vital minimum as a matter of right is essential if we hope to begin to transform conceptions of prerequisites for dignity as well as the duties of the welfare state or “social state of law.”
Advances in Rethinking ESC Rights, Especially Health Rights
Accepting a threshold minimum is only part of a larger reconceptualization of state obligations to ensure ESC rights, including the right to health. The twenty-plus years since Vienna have witnessed astounding progress in the evolution and elucidation of international norms relating to the right to health in particular, as well as to ESC rights more generally. According to the World Health Organization (WHO), every country in the world has now ratified at least one treaty containing health-related rights.29 Treaty-monitoring bodies have issued important interpretations of norms relating to health rights, including Article 12 of the ICESCR, which are clarificatory, if not binding.30
The groundbreaking UN Convention on the Rights of Persons with Disabilities, together with significant Additional Protocols to the American Convention on Human Rights and the African Charter on Human and People’s Rights, have entered into force. Further optional protocols to various treaties, including the ICESCR, now permit quasi-judicial petitions to challenge violations of health and other ESC rights in cases where domestic remedies are inadequate. Conference declarations and other official outcome documents, resolutions from the Human Rights Council, and reports of UN Special Rapporteurs (or independent experts) have also elucidated standards relating to aspects of health and other ESC rights, even though they are not “hard law.”31
Institutional commitment to HRBAs to health and development has also greatly expanded among agencies. Intergovernmental agencies, including UNICEF, UNDP, and the WHO, now have units devoted to rights-based analysis, policies, and programming. Some donors, as well as NGOs and national governments, have explicitly adopted HRBAs with respect to issues varying from sexual and reproductive health to water and sanitation. And in 2013, the WHO published a monograph collecting evidence regarding the effects of HRBAs on women’s and children’s health.32
At the domestic level, many recently enacted or reformed constitutions, such as Kenya’s 2010 constitution, explicitly include the right to health. Further, in Nepal and elsewhere governments are enacting health policies that refer explicitly to rights principles; and where there are gaps, courts are enforcing access to entitlements. In cases from South Africa to India, and Costa Rica to Colombia,33 we have increasing examples of the enforceability of health and related rights. Beyond enforcing individual entitlements to care and preconditions, courts are transforming health policies—whether in relation to HIV/AIDS medications in South Africa, maternal-child health programming and food policy in India, or the structure of the health system in Colombia.34 These judgments are having impacts both material and symbolic on real people’s lives. Coupled with social action and political mobilization, judicial rulings are permitting members of marginalized groups—from persons living with HIV/AIDS (PLWAs) to transgender people—to conceive of themselves as fully human subjects whose demands are underpinned by notions of legal, as well as political, entitlement.
Further, health rights advocacy has not been limited to formal legal forums. In addition to pressing for international and domestic law reform and judicial advances, many human rights NGOs—especially in the global South—have been increasingly active in educational and political mobilizing campaigns around health and other ESC rights in their countries. Issues ranging from water privatization to the impacts of trade agreements on access to medicines are now being fought by NGOs as human rights issues, when in the past they would have been mere “policy issues.”