2. Right to Health

Relative Obligations

Article 25 of the Universal Declaration of Human rights outlines a ‘right to health’. This right was further clarified in article 12 or the ICESCR which recognises “the right of everyone to the enjoyment of the highest attainable standard of physical and mental health.” At the European level, article 11 of the European Social Charter obliges state signatories to take appropriate measures designed to prevent as far as possible epidemic and endemic diseases. This obviously does not imply that states are under an obligation to ensure that all of its citizens are in good health as such an undertaking would not be feasible. The requirements under this article have been described as representing the healthcare duties of compassionate societies towards its individuals.
According to the CESR, states have an obligation to provide efficacious and life saving drugs where possible. Where such provision is not possible states have a duty to show that they are moving in the right direction. Such an obligation may have implications for states during an outbreak of infectious disease. It would likely imply a duty for states to provide life saving medicines or vaccines to individuals if they were available and, if not, to progressively move in that direction. One can imagine, during the context of an outbreak of an infectious disease that access to potentially important medical interventions such as vaccinations and treatments will become a very sensitive issue. In the 2009 outbreak of the H1N1 influenza virus there was for example a notable clamor for access to antiviral drugs such a Tamiflu. As was the case with Tamiflu, it is likely that at the beginning of such an epidemic, states will not possess sufficient quantities of such drugs (if they exist) to be able to furnish them to the whole population. Under these circumstances the right to health would not translate itself into a requirement to furnish every member of society with the medical intervention in question. Indeed it may be necessary and sensible for states to concentrate limited resources on certain key individuals such as medical personnel and vulnerable groups. Under such circumstances a right to health is more likely to translate itself into real and concrete efforts in time to acquire or produce more of the treatment in question so as to be able to treat the rest of the population as necessary. This for example is what is envisaged in many plans for dealing with a future unknown outbreak of infectious disease.

Weakness - Lack of Enforcement (Especially in Developed Countries)

Additionally, a lack of a direct enforcement mechanism for this right in international treaties and covenants also blunts the impact of the so-called ‘right to health’ on any emergency created by a pandemic outbreak. It should be pointed out however that over 100 hundred nations have written an equivalent right to the ‘right to health’ into their national constitutions of legislation This includes many developing nations, Chile for example has provided a constitutional right to health since 1925. In Argentina ‘the right to health’ was used by various community groups to obtain the provision of a vaccination against hemorrhagic fever. South Africa has also been a notable innovator in this regard. In developed nations however, there is less official recognition of a right to health in national constitutional law. In such areas innovative use has been made of civil and political rights to take legal action that could otherwise fall under a right to health. Even in these states however, the notion will still be subject to the same expectation of ‘progressive realisation’, meaning that government will be allowed a certain room for manoeuvre according to their circumstances.