Get 20M+ Full-Text Papers For Less Than $1.50/day. Start a 14-Day Trial for You or Your Team.

Learn More →

Clarifying the Right to Health through Supranational Monitoring: The Highest Standard of Health Attainable

Clarifying the Right to Health through Supranational Monitoring: The Highest Standard of Health... Abstract As recognized by Gostin in Global Health Law (2014), the principles of equality and dignity put human rights law in a unique position to promote progress towards global health equity. This seems particularly relevant for the right to health, which entitles everyone to ‘the highest standard of health attainable’. However, it is still unclear what such a standard entails, and in order for the right to health to be adequately enforced and, thus, to effectively channel progress towards global health equity, it is fundamental that its scope of interests be clarified. Supranational human rights bodies have a key role in that regard. Not only can they clarify the legal content of the right to health for key actors through their monitoring procedures, they can also set common standards for states under their jurisdictions. Therefore, their contributions should be examined and optimized. Introduction After the United Nations (UN) explicitly decided to mainstream the protection of human rights in all its activities (UNGA, 1993),1 it became all the more fundamental to further research on their content and on their implementation. This was particularly relevant to economic, social and cultural rights, including the right to health, as legal scholars and judicial institutions had neglected them for two decades, having focused instead on civil and political rights. Over the past 15–20 years, the right to the highest standard of health attainable has thus received increasing attention in the literature and in litigation worldwide. Eminent authors such as Backman, Clapham, Ferraz, Flood, Forman, Gloppen, Gross, Hunt, Robinson, Tobin, Toebes, Yamin and, of course, Gostin; or case-law in Argentina, Brazil, Colombia, India or South Africa, have greatly contributed to shape the contemporary understanding of what the right to health entails, and how it ought to be implemented. However, this did not prevent criticisms to arise. Whether pointing at the weakness of its conceptual foundations, its excessively vague formulation or the inadequacy of its adjudication, criticisms suggest a lack of clarity as to what this right means. Nevertheless, such a lack of conceptual clarity hinders the implementation of the right to health and, subsequently, progress towards global health equity. How can key actors contribute towards realizing a right of which they do not know the meaning? In Global Health Law, Gostin (2014) declares with reason that defining states’ obligations to realize the right to health more precisely, and finding more effective tools to monitor and implement this right, represent some of its greatest challenges. This is particularly true regarding the scope of interests of this right, as lawyers, ethicists, physicians and philosophers ferociously disagree on what the ‘highest standard of health attainable’ entails. Furthermore, the increasing number of relevant treaties and institutions opens the possibility for different interpretations to be developed, some promoting global health equity more adequately than others. Therefore, clarifying how the ‘highest standard of health attainable’ should be understood in human rights law is crucial. This article will attempt to clarify what such a standard entails, but will do so by focusing on how quasi-judicial supranational human rights bodies (SNHRBs) can and should contribute to this exercise, for they have a key role in that regard which remains underexplored. Mandated to supervise the implementation of human rights instruments in which the right to health is enshrined, SNHRBs effectively delineate its legal content when deciding whether or not this right is realized, and when justifying why. In this article, I will thus, firstly, discuss the issues emerging from the definition of health in human rights law, justifying the need to understand the right to health as a right to an adequate health system to promote adequately global health equity. Secondly, I will assess whether the methods developed by SNHRBs to rationalize health when monitoring this right, can accommodate this framework. For this purpose, I will compare two interpretations: that developed by the UN Committee on Economic, Social and Cultural Rights, for it represents the most authoritative, and that developed by the European Committee of Social Rights, for it represents the most precise. Thirdly, I will discuss how the substance of the right to an adequate health system can be materialized into precise legal requirements in supranational monitoring. I will, therefore, focus on the territorial obligations weighing upon states worldwide to realise such a right. The approach taken in this article, therefore, will not rely on ethical theory alone but rather, inject it to the account I will elaborate of positive international human rights law. From the Right to the Highest Standard of Health Attainable to the Right to an Adequate Health System Main international and regional human rights treaties recognize the right to ‘the highest standard of health attainable’. However, it is unclear what this right entitles individuals to, and whether it imposes reasonable expectations upon states. A clear and adequate definition of health in human rights law is yet essential to enable SNHRBs to promote global health equity through the right to health. The Definition of Health in the World Health Organization Constitution: Unrealistic Expectations The World Health Organization (WHO) Constitution 1946 is the first text that recognized the existence of a right to health in the history of international law and more precisely, a ‘right to the highest standard of health attainable’. The WHO Constitution is not a human rights treaty and, thus, does not intend to define the legal content of the right to health. However, since the definition of health enshrined in its Preamble is recognized worldwide and guides international health policies, it is worth studying it, in an attempt to clarify what the ‘highest standard of health attainable’ means. The latter reads: ‘Health is a state of complete physical, mental and social well-being and not merely the absence of disease or infirmity.’ (WHO Constitution, 1946, Preamble) This definition, which associates health with a state of complete well-being, has generated heated debates amongst physicians, ethicists and lawyers, as it automatically categorizes persons with chronic diseases and with disabilities as being perpetually ill. Some experts argue that such formulation ignores the capacity of the human body to cope and function with chronic health challenges while reaching a feeling of well-being (e.g. Huber et al., 2011). Others, however, consider that health is not simply about survival and refuse to diminish the suffering experienced by these patients (e.g. Lewis, 2011; Tallini, 2011). This article has neither the medical expertise nor the philosophical insight required to answer such questions. Instead, its purpose is to examine whether the WHO definition of health can be translated into a legal right promoting global health equity, which I will answer negatively. Firstly, associating health with a state of ‘complete’ physical and mental well-being expands the scope of the right to health unrealistically. States cannot necessarily be held responsible for health conditions genetically inherited, or for common viral infections, as causation with their (in)actions cannot be established. This does not mean they should not assist individuals in accessing health services in that regard. This means that the right to health does not guarantee a right to be healthy, as recognized by the UN Committee on Economic, Social and Cultural Rights in General Comment 14 on the right to health (UNCESCR, 2000). Furthermore, states are not bound to fund every single health service. According to Wang, referring to Daniels (2008): No health care system—no matter how rich the country or how high the health expenditure per person—is able to offer unrestricted access to all treatments that may improve citizens’ health. (Wang, 2013: 78) Such limits can be found in human rights instruments, which often require that states achieve the highest standard of health attainable, and realize it progressively. As a result, individuals cannot claim compensation for suffering from a health condition that cannot be reasonably prevented, and cannot demand access to free treatments on the sole basis that it will improve their health. This would set unrealistic standards for states and disregard the need to prioritize in healthcare. Instead, the right to health entitles individuals with the best care possible for their conditions, in the limits of states’ resources. Therefore, the notion of ‘completion’ in the WHO definition should be understood instead as maximum attainable standards. Secondly, describing health as a state of complete ‘well-being’ tends to blur the distinction between health and happiness, and between what is fundamental to human dignity, a pillar of human rights law, and what is not. The Travaux Préparatoires of the WHO Constitution highlight intentions to adopt a ‘positive health’ approach, going beyond the notion of illness and embracing that of well-being instead.2 Nevertheless, recognizing a right to well-being is unrealistic. Whilst it is true the right to health is a means to happiness in a liberal egalitarian model, it cannot guarantee happiness, for such notion is vague and infinite (Raz, 1971). Not only does the meaning of well-being depend on personal experiences, lifestyles or cultures, but also the resources it involves are unlimited. What if someone ‘needs’ regular and expensive spa treatments abroad to reach well-being? Moreover, the absence of diseases does not necessarily amount to happiness (Saracci, 1997): someone can be perfectly healthy but deeply sorrowful, e.g. grieving the loss of a loved one. It is worth noting that the Travaux Préparatoires of the WHO Constitution somehow distinguish both notions, by affirming that health is a ‘prerequisite’ to happiness.3 Therefore, it is important health remains distinct from well-being, at least in the context of this article which aims at clarifying the scope of interests of the right to health through and for supranational monitoring. Thirdly, another problematic aspect of the WHO definition of health is the reference to ‘social’ well-being. Authors such as Nussbaum and Sen (1993) and Venkatapuram (2011) have promoted such understanding of health through the capabilities approach, by arguing that individuals should be given equal opportunities to access health and well-being. According to them, obstacles to this fulfilment (e.g. socio-economic factors, ethnicity, gender) should be addressed in order for individuals to reach control over their health, as also highlighted by Yamin (1996). It is of course desirable for equity purposes that all individuals benefit from adequate opportunities to access a state of social well-being. However, it would be excessively difficult to translate this into a legal requirement, and could create unreasonable expectations upon states. Such excessive inflation of the right to health would also discredit its legal existence. To conclude, in its attempt to transcend the biomedical aspect of health, the WHO definition of health has become all-inclusive but remains limited to an individual dimension. Therefore, translating it into a legal entitlement would set unrealistic expectations upon states and would fail to promote global health equity adequately. It is thus important SNHRBs consider the WHO definition as a historic reference (Bok, 2008), and turn towards human rights law instead when interpreting what the highest standard of health attainable means through their monitoring procedures. The Highest Standard of Health Attainable in Human Rights Instruments: Incoherent Standards Most legally binding human rights treaties that recognize a right to health embrace a right to ‘the highest standard of health attainable’. This formulation can be found at the international level: in Article 12 of the International Covenant on Economic, Social and Cultural Rights (ICESCR, 1966), Article 24 of the Convention on the Rights of the Child (1989), and Article 25 of the Convention on the Rights of Persons with Disabilities (2006). It can also be found at a regional level: in Article 11 of the European Social Charter (ESC, 1996), Article 16 of the African Charter on Human and Peoples' Rights (1981), Article 10 of the Additional Protocol to the American Convention on Human Rights in the Area of Economic, Social and Cultural Rights (Protocol of San Salvador, 1988) and Article 39 of the Arab Charter of Human Rights (2004). However, it is unclear what such wording means, and relying on the WHO definition of health has proven to be unhelpful. In order to provide further guidance as to what this entails, right to health provisions often include paragraphs clarifying the types of care or services individuals are entitled to. Nevertheless, the formulation found in these paragraphs can be problematic, as illustrated below through the examples of Article 12 ICESCR and Article 11 ESC. To clarify the scope of interests of the right to health, certain human rights treaties list aspects of health with which states must engage, thus defining this notion by way of examples. However, such lists do not define adequately what the highest standard of health attainable means, since they are intended to be non-exhaustive and are thus inevitably limited. This is the case for instance of Article 12 ICESCR, which reads: 1. The States Parties to the present Covenant recognize the right of everyone to the enjoyment of the highest attainable standard of physical and mental health. 2. The steps to be taken by the States Parties to the present Covenant to achieve the full realization of this right shall include those necessary for: (a) The provision for the reduction of the stillbirth-rate and of infant mortality and for the healthy development of the child; (b) The improvement of all aspects of environmental and industrial hygiene; (c) The prevention, treatment and control of epidemic, endemic, occupational and other diseases; (d) The creation of conditions which would assure to all medical service and medical attention in the event of sickness. (ICESCR, 1966, Article 12) Addressing infant, environmental and occupational health, as well as infectious diseases (listed in paragraph 2(a), (b) and (c)) is fundamental to achieve the highest standard of health attainable, and reflects the concerns of the drafters of the ICESCR (ECOSOC Commission on Human Rights, 1951, p. 12). However, this list is unprincipled since it does not particularly reflect the main causes of mortality or the priorities of the WHO at the time, as drawn in its mortality statistics or its Annual Report (WHO, 1960, 1963). Article 12(2) thus prioritizes certain fields of health over others with no rationale. Furthermore, lists fail to grasp the ever-changing aspect of global health: causes of mortality evolve over time, due to medical progress and diseases’ outbreaks. Therefore, it is undesirable SNHRBs rely exclusively on provisions that define the scope of interests of the right to health solely by topics. To clarify the scope of interests of the right to health, other human rights treaties list purposes which states must satisfy through healthcare, thus defining health by way of principles. However, the drafting of human rights treaties does not necessarily involve experts in medicine, public health, ethics or health economics. As a result, the conceptual framework on which the right to health relies may be inadequate. This is the case to a certain extent of Article 11 ESC, which reads: With a view to ensuring the effective exercise of the right to protection of health, the Parties undertake, either directly or in cooperation with public or private organisations, to take appropriate measures designed inter alia: (1) to remove as far as possible the causes of ill-health; (2) to provide advisory and educational facilities for the promotion of health and the encouragement of individual responsibility in matters of health; (3) to prevent as far as possible epidemic, endemic and other diseases, as well as accidents. (ESC, 1996, Article 11) The framework preventive-curative care reflected by this provision (although less clearly so by the first paragraph) has the advantage of being less likely to change, since it builds upon the main two purposes of healthcare. Healthcare principally aims at avoiding the occurrence of diseases before the manifestation of signs of ill-health, or aims at treating diseases after the manifestation of such signs. Important criticisms can be raised against the dichotomy preventive-curative healthcare nonetheless. First, such distinction is not always clear. For instance, should surgeries performed to remove solitary malignant cancerous tumours prior to metastasizing, be categorized as preventive or curative care? Second, this dichotomy is not always comprehensive. For instance, it excludes palliative care, which does not aim at ‘curing’ existing conditions, but at managing patients’ suffering. The right to health, however, has clearly been interpreted as including palliative care by General Comment 14 (UNCESCR, 2000) and by legal scholars such as Backman and Stjernswärd (in Clapham and Robinson, 2009). Third, a definition of health based on the purposes of healthcare does not clarify what preventive and curative health services states must guarantee. Should states fund mammograms for all girls and women to prevent the occurrence of breast cancer? Should states fund expensive cancer therapy when a cheaper but less effective treatment is available, and under what conditions? To conclude, right to health provisions do not provide a comprehensive and principled definition of health enabling SNHRBs to interpret adequately, and even less so clarify, the scope of interests of the right to health. Which sources should SNHRBs thus explore when delineating what the highest standard of health attainable means through their monitoring procedures, in order to promote global health equity? The Right to an Adequate Health System: A more Adequate Framework General Comment 14, drafted by the UN Committee on Economic, Social and Cultural Rights in 2000, is widely recognized as the most authoritative interpretation of the right to health in international human rights law. Whilst it requires that states guarantee health goods, services, personnel and facilities that are available, accessible, acceptable and of good quality (known as the AAAQ framework), it does not clarify to what extent. Interestingly, however, General Comment 14 also declares that the right to health entitles individuals to: […] a system of health protection which provides equality of opportunity for people to enjoy the highest attainable level of health.’ (UNCESCR, 2000, para. 8) Such approach, focusing on a more collective dimension of the right to health as it places the notion of health systems at the heart of the right, was further developed by the Special Rapporteur on the right to health (SRRH). He affirms, in his 2006 Annual Report: The right to health can be understood as a right to an effective and integrated health system, encompassing health care and the underlying determinants of health, which is responsive to national and local priorities, and accessible to all. (SRRH, Paul Hunt, 2006, para. 4) More recent reports of the SRRH confirm the focus on the collective dimension of the right. For instance, the SRRH’s annual reports on health systems (SRRH, 2008) or health financing (SRRH, 2012), or the 2015 report in which the SRRH identifies adequate public health policies as a priority: The Special Rapporteur is concerned that primary care and the modern public health approach often lose the battle for resources to the biomedical model and vertical programmes of treatment of diseases through specialized health care. (SRRH, 2015, para. 70) Such approach is also echoed in various documents produced at the UN level. For instance, the General Days of discussion held by the UN Committee on Economic, Social and Cultural Rights all point towards the importance to guarantee everyone’s access to appropriate health services under Article 12 ICESCR (UNCESCR, 1993a, 1993b). The Human Rights Council, in response to reports presented by the SRRH, also highlights the key role of accessible and strengthened health systems to realize the highest standard of health attainable (HRC, 2013, 2014). Furthermore, the last two World Health Reports emphasize the importance of universal health coverage (WHO, 2010, 2013). However, except the 2006 report of the SRRH, no UN document explicitly translates the scope of interests of the right to health into a right to access an adequate health system. Such formulation, however, is essential to a better monitoring of the right to health promoting global health equity adequately and thus, to a better implementation. It encapsulates the obligation for states to constantly strive to achieve high standards, key requirement of the obligation of progressive realization, since states must guarantee health systems that are responsive to the health needs of their population. However, it also allows the flexibility and reasonableness needed to determine what services are needed in each state and whether states can afford these services. Finally, such formulation is not restricted to the individual dimension of health, as this was the case with the WHO definition. It also embraces its collective dimension, by setting public health requirements such as the adoption of campaigns promoting healthy behaviour or combating unhealthy behaviour. It is worth noting that various academics have also stressed the importance of adequate health systems to guarantee the right to the highest standard of health attainable (e.g. Backman et al., 2008; Hunt and Backman, 2008). As a result, this article suggests that SNHRBs interpret the scope of interests of the right to the ‘highest standard of health attainable’ as a right to access and benefit from an adequate health system. Framing the Monitoring of the Right to Health Whilst the SRRH and General Comment 14 contribute to clarifying what the ‘highest standard of health attainable’ means, SNHRBs have the potential to further its definition through monitoring. When deciding whether or not the right to health is realized in their complaints or reporting procedures, and when justifying why, quasi-judicial SNHRBs effectively delineate the legal content of this right. It is thus important to analyse how they contribute to clarifying its scope of interests, and assess whether such contributions are appropriate to promoting global health equity. As highlighted in the introduction of this article, I will focus on how two SNHRBs in particular approach the ‘highest standard of health attainable’: The European Committee of Social Rights (European Committee), when monitoring Article 11 ESC, and the Committee on Economic, Social and Cultural Rights (UN Committee), when monitoring Article 12 ICESCR. Using Health Indicators for a Clearer Substance: The European Committee Every 4 years, States parties to the ESC must submit a report to the European Committee on its implementation. In response, the European Committee drafts documents called ‘Conclusions’ in which it declares whether the state has complied or not with its obligations under each right, and justifies why.4 Since 2001, the European Committee systematically uses the same 18 thematic indicators for each State party and in each reporting cycle, to assess states' performance under Article 11 ESC.5 Each indicator measures states’ compliance with one of the three obligations set by this provision: obligation to provide curative healthcare, health promotion services or preventive healthcare (Table 1). Table 1. Indicators developed by the European Committee under Article 11 ESC Obligation to provide curative healthcare (Article 11(1) ESC) Obligation to provide health promotion services (Article 11(2) ESC) Obligation to provide preventive healthcare (Article 11(3) ESC) Life expectancy and main causes of death of the population Health education in schools Air, water and noise pollution, as well as ionizing radiation Infant and maternal mortality Public information and awareness-raising Asbestos Access to healthcare Counselling and screening for pregnant women, children and adolescents Food safety Healthcare professional, facilities Counselling and screening for the rest of the population Measures to combat smoking and alcoholism Prophylactic measures Accidents prevention (used since Conclusions 2003) Obligation to provide curative healthcare (Article 11(1) ESC) Obligation to provide health promotion services (Article 11(2) ESC) Obligation to provide preventive healthcare (Article 11(3) ESC) Life expectancy and main causes of death of the population Health education in schools Air, water and noise pollution, as well as ionizing radiation Infant and maternal mortality Public information and awareness-raising Asbestos Access to healthcare Counselling and screening for pregnant women, children and adolescents Food safety Healthcare professional, facilities Counselling and screening for the rest of the population Measures to combat smoking and alcoholism Prophylactic measures Accidents prevention (used since Conclusions 2003) Table 1. Indicators developed by the European Committee under Article 11 ESC Obligation to provide curative healthcare (Article 11(1) ESC) Obligation to provide health promotion services (Article 11(2) ESC) Obligation to provide preventive healthcare (Article 11(3) ESC) Life expectancy and main causes of death of the population Health education in schools Air, water and noise pollution, as well as ionizing radiation Infant and maternal mortality Public information and awareness-raising Asbestos Access to healthcare Counselling and screening for pregnant women, children and adolescents Food safety Healthcare professional, facilities Counselling and screening for the rest of the population Measures to combat smoking and alcoholism Prophylactic measures Accidents prevention (used since Conclusions 2003) Obligation to provide curative healthcare (Article 11(1) ESC) Obligation to provide health promotion services (Article 11(2) ESC) Obligation to provide preventive healthcare (Article 11(3) ESC) Life expectancy and main causes of death of the population Health education in schools Air, water and noise pollution, as well as ionizing radiation Infant and maternal mortality Public information and awareness-raising Asbestos Access to healthcare Counselling and screening for pregnant women, children and adolescents Food safety Healthcare professional, facilities Counselling and screening for the rest of the population Measures to combat smoking and alcoholism Prophylactic measures Accidents prevention (used since Conclusions 2003) The structure and consistency of this method has enabled the development of a precise jurisprudence delineating what curative, promotional and preventive services states must guarantee in order to ensure an adequate health system and consequently, to realize the right to health (Lougarre, 2015). Therefore, the use of thematic health indicators presents several benefits. First, indicators enable the European Committee to set common standards within its jurisdiction, and to justify why. Second, they guarantee transparency and legal certainty for both duty-bearers and right-holders. Third, thematic health indicators leave the flexibility needed for the European Committee to take into consideration the health needs or resources constraints specific to each state. Nevertheless, such method tends to freeze the legal content of the right to health into a set list of issues, criticized in the context of Article 12(2) ICESCR. This can be observed through the reporting procedure of the European Committee, as the development of its jurisprudence under Article 11 ESC relies entirely on the themes embraced by these indicators. As a result, if indicators fail to cover a specific health issue, the European Committee is unlikely to monitor it or to develop norms in that regard. For instance, the European Committee has not created any indicator on individuals’ access to contraceptives and, consequently, has not developed any standard in this area. The obligation to provide access to reproductive health is yet well recognized in human rights law (e.g. in UNCESCR, 2000, para. 34, and in the Convention on the Elimination of all Forms of Discrimination Against Women, 1979, Article 12). However, a state could potentially conform to Article 11 ESC without guaranteeing affordable contraception to its population. Therefore, a static monitoring of the right to health can lead to a static interpretation of what the highest standard of health attainable entails. Thematic indicators can help SNHRBs rationalizing health for the purpose of right to health monitoring. However, they must be designed and updated through the guidance of medical and public health experts, to ensure they grasp adequately the scope of interests of this right. Would an ad hoc review be thus more beneficial? Using an ad hoc Review for a more Comprehensive Substance: The UN Committee Every 5 years, States parties to the ICESCR must submit a report to the UN Committee describing its implementation. In response, the UN Committee drafts documents called ‘Concluding Observations’ in which it assesses whether states have adequately realized each right, and formulates recommendations for improvement.6 Contrarily to the European Committee, the UN Committee uses no indicators and reaches no findings of non-conformity when assessing the realization of the right to health. Moreover, it does not use the AAAQ framework created by General Comment 14 (UNCESCR, 2000). Therefore, delineating what the UN Committee interprets as being an adequate health system can only be deduced from what repeatedly represents a source of concern or satisfaction in its Concluding Observations. Such absence of methodology leads to issues being reviewed for certain states and not others, or for the same state but not in all reporting cycles, without any clear and legitimate rationale to justify it. This clearly impedes the capacity of the UN Committee to develop a jurisprudence on the right to health that is as coherent and precise as the European Committee’s. Therefore, not only does its ad hoc review fail to secure transparency or legal certainty for duty-bearers and right-holders, it also fails to provide a comprehensive understanding of health. Nevertheless, such absence of methodology does not prevent the UN Committee from examining in depth certain health issues. On the contrary, its ad hoc review enables crucial topics that remain unmonitored by the European Committee to be explored. This is particularly true regarding mental health or sexual and reproductive health. Two main hypotheses as to why the UN Committee reviews these topics and not the European Committee may be drawn. Contrarily to the ESC, the ICESCR recognizes the right to physical and mental health, which might motivate the UN Committee to review mental healthcare. Furthermore, the UN Committee receives more non-governmental organizations’ (NGOs) shadow reports than the European Committee in its reporting procedure, and many of these concern sexual and reproductive health issues. To conclude, the UN and the European Committees’ interpretations of what constitutes an adequate health system tend to point towards a similar understanding overall. However, they fail to develop an understanding of health that is both comprehensive and coherent, yet necessary to promote appropriately global health equity. Materializing the Right to an Adequate Health System Whilst the interpretation of the UN and the European Committees highlights how they approach the ‘highest standard of health attainable’, it does not clarify how the right to an adequate health system can be materialized into standards applicable to all states, to promote progress towards global health equity. This article will thus make three main suggestions in that regard, drawing from the shortcomings identified in the definition and monitoring of the right to health in human rights law. Defining Adequate Health Systems: Human Rights Law and External Expertise Defining precisely what services states must guarantee through their health systems is an excessively challenging task for human rights lawyers alone, including SNHRBs. What is considered as harmful to health changes over time. Research frequently identifies new evidence of how certain substances, activities or behaviour can be dangerous for human health (e.g. smoking tobacco, which Doll and Hill related to lung cancer in 1954). What if juicing diets, a recent trend, are proved to provoke serious digestive disorders in 10 years time; should states be held responsible for not having sufficiently investigated their risks; if yes, to what extent? Moreover, diseases that are now particularly deadly, or disabilities that are particularly burdensome, may be better managed in the years to come thanks to medical and biomedical progress. For instance, HIV mortality is now relatively well controlled through anti-retroviral therapy; amputees’ quality of life can be greatly improved thanks to bionic prostheses; and smallpox has been eradicated (WHO, 1988). Such parameters modify the concept of health over time and as a result, change states’ duties towards their populations in right to health monitoring. However, further questions arise. Does the right to health imply that states must systematically provide access to new treatments improving patients’ conditions? If not, what factors should be considered, and how much importance should be given to treatments’ effectiveness or costs, and to patients’ quality of life? Finally, health often interacts with the notion of human responsibility. While the latter may determine civil litigation opposing patients with health insurance companies, how should it be approached in right to health monitoring? Should a state provide expensive palliative care to a heavy smoker with lung cancer, although it deployed multiple awareness-raising campaigns against tobacco and provided free lung cancer screening to its population? Whilst this article does not suggest it should not, justifications are required. Human rights law cannot answer these questions alone and certainly not generically. Therefore, it is crucial that the definition of ‘adequate health systems’ is constantly guided by the expertise of medical and public health professionals, as well as healthcare lawyers, economists and ethicists. This is how Tobin (2012) suggests that the right to health be clarified, by advocating for an interpretative approach based on a constructive engagement with its key actors. Nonetheless, two shortcomings can be observed in this approach (Lougarre, 2014). They highlight the limits of external expertise and the importance of a principled methodology. Firstly, it is morally undesirable that the scope of interests of the right to health is defined entirely through consensuses between key actors. What if, hypothetically, the majority of the interpretative community contended that the highest standard of health attainable implied mandatory HIV screening on pregnant women (e.g. argument developed by Schuklenk and Kleinsmidt, 2007), yet in breach of human rights norms? Therefore, I suggest that SNHRBs determine the adequacy of health systems by relying primarily on the cornerstones principles of human dignity and non-discrimination, and then on external expertise. Secondly, in order for the scope of interests of the right to health to be coherent, it is necessary that it is interpreted through a principled methodology. What if, hypothetically, half of the interpretative community argued that HIV testing on pregnant women should be mandatory, and the other half believed that it should simply be recommended; who should be listened? As a result, I suggest that SNHRBs interpret the highest standard of health attainable by respecting four principles. These are inspired from the principles developed by Tobin (2012), but readjusted by order of importance to address his shortcomings and reach the aim of this article, i.e. clarifying the scope of interests of the right to health through and for supranational monitoring. First, SNHRBs’ interpretation of the right to health must seek coherence within its legal system, to ensure principled consistency (inspired from the ‘fit’ test developed by Dworkin, 1986): the interpretation of the right must respect established principles of international human rights law. Second, their interpretation must be expertise-led to ensure an effective enjoyment of the right to health and set reasonable expectations upon states: it must rely on established research in medicine, public health, healthcare ethics, health economics and health law. Third, SNHRBs’ interpretation of the right to health must be context-sensitive: this right must be adapted to the environment in which it is to be implemented to be more effective. Finally, their interpretation must be clear and practical to be fit to supranational monitoring, as excessive vagueness threatens the realization of the right to health (Lougarre, 2014). It could be argued that such approach is fastidious, and that expertise is not always necessary in right to health monitoring and adjudication, when health systems are obviously inadequate. In Sierra Leone, for example, the number of maternal mortality reached 1100 deaths per 100,000 live births before the Ebola outbreak, by far the highest figure worldwide (WHO, 2014). Should Sierra Leone be automatically held accountable for breaching the right to health, since it clearly failed to provide basic maternal care, ‘core’ component of this right in General Comment 14 (UNCESCR, 2000)? Whilst this figure clearly reflects an inadequate health system and potentially represents a violation of this right, Sierra Leone’s compliance with human rights law must be also examined in the light of its resources and efforts. As outlined by Article 2(1) ICESCR and by the word ‘attainable’, states must progressively realize the right to health, according to the resources available to them. Such requirements are time-consuming, but so is the rule of law. However, this does not mean that no generic obligation can be derived from the right to health, and later applied to promote global health equity. The Obligation to Identify (and address) Health Needs In order to set up any adequate health system, it is fundamental that states first understand the particular health needs of their populations. As argued by Alston (1987), states are primarily accountable for devising adequate means to implement human rights, and in the context of this article, the right to health. Whilst it is excessively challenging for human rights lawyers, including SNHRBs, to define what is an adequate health system, they should recognize states’ obligation to identify (and address) the health needs of their populations. Firstly, such obligation represents the essence of reporting procedures before SNHRBs. Reporting procedures do not simply require that states provide data on their health systems. They also require that states collect data in the first place, which eventually forces them to observe the successes and failures of their health systems. Therefore, identifying populations’ needs is essential to the design of appropriate health policies, as highlighted by the UN and the European Committees when commenting on states’ reports.7 Some may contend that this obligation is costly, as numerous administrative means must be established to collect data in the health sector. However, the analysis of the sources used by the European Committee, and that of the discussions held within the UN Committee, reveal that data are often available and that reporting procedures tend to require that states compile data rather than collect it. As for states in which data are unavailable, the obligation to identify health needs represents a preliminary step to providing appropriate healthcare. Assistance by intergovernmental agencies and NGOs is thus crucial in this concern. Secondly, states’ obligation to identify the health needs of their populations is related to the principle of non-discrimination, a pillar of human rights law. According to this principle, states must refrain from committing de jure and de facto discrimination. States must ensure everyone can access their health systems on the same basis, in law and in practice. Such requirement is clearly recognized through the monitoring procedures of the UN and the European Committees. For example, in its complaint procedure, the European Committee declared that: ‘[t]reating the migrant Roma in the same manner as the rest of the population when they are in a different situation constitutes discrimination’, and found France in breach of Article 11 ESC ((ECSR, 2012) para. 163). However, de facto discrimination can be difficult to detect. Avoiding them obliges states to collect disaggregated data in order to verify that groups vulnerable to health discrimination enjoy their right to health to the same extent than the rest of the population. Both the UN and the European Committees regularly request that states provide such disaggregated data in their monitoring procedures. As a result, the principle of non-discrimination implies positive actions from states towards vulnerable groups, which often seems forgotten through the ‘negative’ dimension of the obligation to respect endorsed by General Comment 14 (UNCESCR, 2000). In order to prevent de facto health discrimination, it is nonetheless crucial to conceptualize what vulnerability represents in access to health. General Comment 14, the SRRH, as well as the UN and the European Committees, all identify the following groups as vulnerable to health discrimination: women; children and adolescents; old persons; persons with disabilities; lesbians, gays, bisexuals and transgender persons; ethnic or national minorities; indigenous populations; the poor; the homeless; migrants, refugees or stateless persons; prisoners; persons living in rural areas; persons living with HIV; and other persons with a particular religion, political opinion or birth status. However, few authors have written about what constitutes a vulnerable group in human rights law. Chapman and Carbonetti (2011) interestingly distinguish vulnerable groups with fixed status (e.g. women, persons with disabilities) from vulnerable groups with variable statuses (e.g. the poor, the homeless). Fixed vulnerable statuses would involve permanent protection against health discrimination, while variable vulnerable statuses would involve temporary protection. Nevertheless, further questions arise. What are the obligations binding states to guarantee vulnerable groups’ right to health? Since human rights law clearly recognizes persons living with HIV as being a vulnerable group, does that mean any person with a particular health status can be considered as such? If not, why, and how can this work in the context of right to health monitoring? Further research is needed to answer these questions. Thirdly, states’ obligation to identify the health needs of their population derives from the obligation to deploy health promotion campaigns targeting the main health issues affecting the population. Such an obligation, recognized by the UN and the European Committees, inevitably involves collecting data to detect what main health issues affect populations’ health. This includes, for instance, providing sufficient education in sexual and reproductive health if teenage pregnancy rates are high, as requested by the UN Committee in its recent Concluding Observations on Ecuador (UNCESCR, 2012). This can also include providing screening for diseases responsible for high numbers of early death, as requested by the European Committee in its Conclusions XIX-2 on Greece (ECSR, 2009). Fourthly, identifying the health needs of the population is crucial to an adequate epidemiological monitoring of communicable diseases such as HIV. The evolution of the number of patients infected by a particular virus and the adequacy of measures to control it, are both regularly reviewed by the UN and the European Committees. This, again, requires that states collect a certain type of data to understand what are populations’ needs in this concern. Finally, fulfilling the obligation to identify the health needs of the population can also assist states in prioritizing their resources within the health sector. If the data collected show a particularly high suicide rate and a low maternal mortality rate, evidently the state does not immediately need to increase the budget allocated to obstetric care but must urgently expand that allocated to mental care. However, SNHRBs should not translate states’ obligation to identify the health needs of their populations into a requirement to constantly collect data for all health issues and for all vulnerable groups. This may meet requirements of global health equity but would set unrealistic expectations upon states. Instead, this obligation requires that states develop an intelligent understanding of health needs. One issue remains nonetheless: what types of health needs are SNHRBs ready to consider? Should they extend it to social determinants of health? The Inflation Caused by Social Determinants of Health In order to be in good health, it is crucial individuals access adequate food, water, housing and live in a healthy environment. Such parameters, commonly called ‘social determinants of health’, are clearly recognized by the WHO and by General comment 14, and are essential to achieve global health equity. Nevertheless, defining health needs through social determinants of health raises two issues in the context of right to health monitoring by SNHRBs: they widen its scope of interests considerably and unduly. The right to health has often been criticized for being too vague and too complex to be adjudicated. Therefore, incorporating social determinants of health into its definition increases considerably its scope, and thus, the complexity of its legal content as each determinant requires a different type of expertise. This decreases the likelihood of successful monitoring or adjudication, thus affecting its implementation at a global scale. Moreover, other parameters have a determining effect on individuals’ health. Work–life balance, social background and education, for instance, have all been proven to affect individuals’ health. Why not considering them as social determinants of health? It is desirable to understand health needs through a capabilities approach in order to design better policies, as advocated by Venkatapuram (2011). However, it is impractical to translate the overall picture in right to health monitoring. Furthermore, it is unnecessary to extend the scope of the right to health to social determinants such as food, water, sanitation, housing and healthy environment. These elements have already been translated into rights of their own in human rights law. At the international level, the rights to food, water, sanitation and housing have emerged from Article 11 ICESCR on the right to an adequate standard of living, as attested by various General Comments drafted by the UN Committee.8 Furthermore, the UN shows willingness to recognize a right to a healthy environment, as suggested by the UNGA (1990) and by the Independent Expert on the issue of human rights obligations relating to the enjoyment of a safe, clean, healthy and sustainable environment (HRC, 2012). At a regional level, these rights are also protected but less homogenously. Article 21 of the African Charter on Human and Peoples' Rights (1981) on the right to dispose of natural resources tends to be interpreted as protecting the rights to food, water and healthy environment. Articles 11 and 12 of the Protocol of San Salvador (1988) clearly recognize a right to food and to a healthy environment. Finally, Article 31 ESC explicitly protects a right to housing, and Article 11 ESC is usually also interpreted as protecting a right to a healthy environment. Therefore, it is preferable that SNHRBs understand interactions between the right to health and social determinants of health through the principle of the interdependence of rights, as argued by Tobin (2012). This would avoid complexifying the monitoring of the right to health. This article thus recommends that social determinants of health only be monitored through the right to health under three non-cumulative conditions. Firstly, SNHRBs may monitor social determinants of health through the right to health if they have an actual impact on individuals’ health. They should, thus, not be reviewed for the potential impact they may have. Such approach is adopted by the UN Committee, as it only refers to Article 12 ICESCR when food, water, environment or housing issues have an actual impact on individuals’ health. Malnutrition, water contamination, the absence of a sewage system and air pollution are thus sometimes mentioned in its comments on Article 12. However, the UN Committee reviews their potential impact (i.e. national standards, monitoring systems and budgets in place) under Article 11 ICESCR instead. As a result, this approach avoids inflating the scope of the right to health while enabling the development of a more comprehensive and, thus, protective jurisprudence under each right. Secondly, SNHRBs monitoring the right to health may exceptionally consider the potential impact of social determinants on individuals’ health, in the context of health promotion campaigns. This approach is adopted by the European Committee, in its jurisprudence on Article 11(2) ESC, since it considers that states must take measures to warn their populations against risk factors impeding their health. It thus expects states to raise awareness in schools and among the overall population, on healthy-eating, environmental issues and any health issues prevalent in the country. Such standards were developed in its XV-2 Conclusions (2001) on Belgium, and in its 2005 Conclusions on Moldova (ECSR, 2001, 2005). That way, the relations between social determinants of health and the right to health are acknowledged but limited to a realistic monitoring framework. Finally, whilst it is not desirable that SNHRBs monitor social determinants of health through the right to health for their potential impact on health (except for promotion purposes), it represents a heuristic tool to protect rights that do not always benefit from sufficient recognition. For instance, when the European Committee evaluates the implementation of Article 11 ESC in its reporting procedure, it systematically reviews standards and measures taken on food safety; water, soil and air pollution; ionizing radiation; and asbestos. As a result, it assesses the potential impact that such issues may have on individuals’ health (in the event such standards or measures are deemed inadequate). In theory, such monitoring is not desirable since food, water, environment and housing significantly inflate the scope of the right to health. However, the ESC does not explicitly recognize a right to food, water or sanitation. It recognizes a right to housing in Article 31 ESC, but the latter is not ratified by all Member States.9 Therefore, if the European Committee did not incorporate these issues in its interpretation on Article 11 ESC, they would remain unmonitored, at the expense of individuals’ basic human rights necessary to further global health equity. Conclusion This article suggests that the scope of interests of the right to the highest standard of health attainable be clarified and translated into clear legal requirements to be better monitored and thus, to promote appropriately global health equity. To this aim, it used a comparative analysis between the monitoring of the ICESCR by the UN Committee on Economic, Social and Cultural Rights, and that of the ESC by the European Committee on Social Rights. In a first section, I highlighted the failure of the WHO Constitution and of human rights treaties such as the ICESCR and the ESC, to define adequately what the highest standard of health attainable meant. I consequently emphasized the relevance of the definition given by the SRRH, who recognizes a right to an adequate health system. In a second section, I examined how SNHRBs approached the scope of interests of the right to health when monitoring it. I analysed in particular how indicators, such as those used by the European Committee, could clarify the substance of this right, and how an ad hoc review, such as that adopted by the UN Committee, could broaden its scope. Finally, in a third section, I argued that the right to an adequate health system should be materialized into clearer legal requirements in order to be better monitored and promote more satisfactorily global health equity. Therefore, I suggested that SNRHB defined adequate health systems through an appropriate use of external expertise; recognized states’ obligation to identify (and address) the health needs of their populations; and understood social determinants of health through the principle of interdependence of rights, to avoid inflating the scope of the right to health. To conclude, to enhance the realization of the right to health worldwide, and therefore, promote progress towards global health equity, it is fundamental that SNHRBs contribute to clarify what this right entails and do so adequately. This would not only enhance their monitoring, but also guide key actors such as states, national judges, individuals and NGOs. As recognized by Gostin (2014), the contribution of SNHRBs to global health law should not be underestimated. Acknowledgements I am very grateful to Professor Colm O’Cinneide and Dr Jeff King for their extensive help and feedback on this article, which is also part of my PhD thesis. Thank you also to the audience of the workshop ‘A Critical Exploration of Global Health Law’ held in the University of Birmingham on 21–22 November 2014, to Laurence Gostin for his inspiration, and to the organizers of the workshop, Dr Sheelagh McGuinness and Professor Jean V. McHale. Footnotes 1. Following the adoption of the Vienna Declaration and Programme of Action at the 1993 World Conference on Human Rights, the UN created the High Commissioner for Human Rights who has for mandate to integrate the protection and promotion of human rights in all activities of the UN. This was succeeded by the 2005 World Summit Outcome Document. 2. For the Travaux Préparatoires of the WHO Constitution, see WHO, Interim Commission (1946) ‘Official Records of the World Health Organisation No. 1', p. 19 para 1(c), and Annex 9 'Suggestions relating to the Constitution of an International Health Organisation' (p. 58, Preamble). 3. Ibid. 4. See Articles 21 to 24 ESC, 1961; Governmental Committee of the European Social Charter (2006), and the Conclusions of the European Committee, which are available at http://www.coe.int/t/dghl/monitoring/socialcharter/Conclusions/ConclusionsIndex_en.asp (last accessed 25 September 2015). 5. In its last reporting cycle on Article 11 ESC (2013), the European Committee exceptionally merged several indicators, thus reducing their number (ECSR, 2013a, 2013b), but it is unsure whether this method will be kept in the next cycle (2017). 6. For more details on the reporting procedure, see Articles 16 and 17 ICESCR, and the ‘Rules of Procedure’ of the UN Committee (UNCESCR, 1993c). 7. For instance, in its Conclusions 2013, the European Committee finds Poland in breach of Article 11 for excessively long waiting lists, after having balanced it with the improvements brought by a legislation aimed at effective data collection. 8. See UNCESCR (1991) for General Comment No. 4; UNCESCR (1999) for General Comment No. 12; and UNCESCR (2002) for General Comment No. 15. 9. Two versions of the ESC coexist: one dated 1961 and one dated 1996, due to the unwillingness of certain states to ratify the most recent version; see the table of accepted provisions (as of March 2015) http://www.coe.int/t/dghl/monitoring/socialcharter/Presentation/ProvisionTableRevMarch2015_en.pdf (accessed 25 September 2015). References Additional Protocol to the American Convention on Human Rights in the Area of Economic, Social and Cultural Rights ( Protocol of San Salvador) (adopted 17 November 1988, entered into force 16 November 1999) OAS Treaty Series No. 69 ( 1988 ). African Charter on Human and Peoples’ Rights (adopted 27 June 1981, entered into force 21 October 1986) 21 ILM 58 ( 1982 ). Alston P. ( 1987 ). Out of the Abyss: The Challenges Confronting the New U.N. Committee on Economic, Social and Cultural Rights . Human Rights Quarterly , 9 , 332 – 381 . Google Scholar Crossref Search ADS Arab Charter on Human Rights (adopted 22 May 2004, entered into force 15 March 2008) reprinted in 12 International Human Rights Reports 893 ( 2005 ). Backman G. , Hunt P. , Khosla R. , Jaramillo-Strouss C. , Fikre B. M. , Rumble C. , Pevalin D. , Páez D. A. , Pineda M. A. , Frisancho A. , Tarco D. , Motlagh M. , Farcasanu D. , Vladescu C. ( 2008 ). Health Systems and the Right to Health: An Assessment of 194 Countries . The Lancet , 372 , 2047 – 2085 . Google Scholar Crossref Search ADS Bok S. ( 2008 ). Rethinking the WHO Definition of Health . In Heggenhougen K. , Quah S. R. (eds), International Encyclopedia of Public Health . Oxford : Academic Press , pp. 590 – 597 . Chapman A. R. , Carbonetti B. ( 2011 ). Human Rights Protections for Vulnerable and Disadvantaged Groups: The Contributions of the UN Committee on Economic, Social and Cultural Rights . Human Rights Quarterly , 33 , 682 – 732 . Google Scholar Crossref Search ADS Clapham A. , Robinson M. (eds) ( 2009 ). Realizing the Right to Health . Zürich : Swiss Human Rights Book, Rüffer & Rub . Constitution of the World Health Organization, as amended ( adopted 7 April 1946, entered into force 7 April 1948) 14 UNTS 185 . Convention on the Elimination of All Forms of Discrimination Against Women ( adopted 18 December 1979, entered into force 3 September 1981) 1249 UNTS 13 . Convention on the Rights of Persons with Disabilities ( adopted 13 December 2006, entered into force 3 May 2008) 2515 UNTS 3 . Convention on the Rights of the Child ( adopted 20 November 1989, entered into force 2 September 1990) 1577 UNTS 3 . Daniels N. ( 2008 ). Just Health: Meeting Health Needs Fairly . New York; Cambridge : Cambridge University Press . Doll R. , Hill A. B. ( 1954 ). The Mortality of Doctors in Relation to Their Smoking Habits . British Medical Journal , 1 , 1451 – 1455 . Google Scholar Crossref Search ADS PubMed Dworkin R. ( 1986 ). Law’s Empire . Oxford : Hart Publishing . ECOSOC Commission on Human Rights ( 1951 ). Summary Record of the 223rd Meeting. UN Doc. E/CN.4/SR.223 . European Committee of Social Rights ( 2001 ). Conclusions on states’ reports, cycle XV-2 . European Committee of Social Rights ( 2005 ). Conclusions on states’ reports, cycle 2005 . European Committee of Social Rights ( 2009 ). Conclusions on states’ reports, cycle XIX-2. European Committee of Social Rights ( 2012 ). Médecins du Monde International v. France. Complaint No. 67/2011, Decision on the Merits. European Social Charter ( adopted 18 October 1961, entered into force 26 February 1965) CETS No. 035 ). European Social Charter (as amended) ( adopted 3 May 1996, entered into force 1 July 1999) CETS No. 163 ). European Committee of Social Rights ( 2013a ). Conclusions on states’ reports, cycle XX-2. European Committee of Social Rights ( 2013b ). Conclusions on states’ reports, cycle 2013. Gostin L. O. ( 2014 ). Global Health Law . Cambridge, Massachusetts : Harvard University Press . Governmental Committee of the European Social Charter ( 2006 ). New System for the Presentation of Reports on the Application of the European Social Charter. Document CM(2006)53 (item 4.2). Huber M. , Knottnerus J. A. , Green L. , van der Horst H. , Jadad A. R. , Kromhout D. , Leonard B. , Lorig K. , Loureiro M. I. , van der Meer J. W. , Schnabel P. , Smih R. , van Wheel C. , Smid H. ( 2011 ). How should we define health? British Medical Journal , 343 , 235 – 237 . Google Scholar Crossref Search ADS Human Rights Council ( 2012 ). Preliminary Report of the Independent Expert on the Issue of Human Rights Obligations Relating to the Enjoyment of a Safe, Clean, Healthy and Sustainable Environment. UN Doc. A /HRC/22/43 . Human Rights Council , 2013 . Access to Medicines in the Context of the Right of Everyone to the Enjoyment of the Highest Attainable Standard of Physical and Mental Health. UN Doc. A/HRC/23/L.10/Rev.1. Human Rights Council , 2014 . Promotion of the Right of Migrants to the Enjoyment of the Highest Attainable Standard of Physical and Mental Health. UN Doc. A/HRC/26/L.30 . Hunt P. , Backman G. ( 2008 ). Health Systems and the Right to the Highest Attainable Standard of Health . Health and Human Rights , 10 , 81 – 92 . Google Scholar Crossref Search ADS PubMed International Covenant on Economic, Social and Cultural Rights (adopted 16 December 1966, entered into force 3 January 1976) 993 UNTS 3 . Lewis D. M. ( 2011 ). WHO Definition of Health Remains Fit for Purpose (Letter) . British Medical Journal , 343 , 435 . Lougarre C. ( 2014 ). (Book review) John Tobin, the Right to Health in International Law, Oxford: Oxford University Press, 2012. The Modern Law Review, 77, 336 – 342 . Lougarre C. ( 2015 ). What does the Right to Health Mean? The Interpretation of Article 11 of the European Social Charter by the European Committee of Social Rights . Netherlands Quarterly of Human Rights , 33 , 326 – 354 . Google Scholar Crossref Search ADS Nussbaum M. , Sen A. ( 1993 ). The Quality of Life . New York : Clarendon Press . Raz J. ( 1971 ). Legal Principles and the Limits of Law . Yale Law Journal , 81 , 823 – 854 . Google Scholar Crossref Search ADS Saracci R. ( 1997 ). The World Health Organisation Needs to Reconsider its Definition of Health . British Medical Journal , 314 , 1409 – 1410 . Google Scholar Crossref Search ADS PubMed Schuklenk U. , Kleinsmidt A. ( 2007 ). Rethinking Mandatory HIV Testing During Pregnancy in Areas With High HIV Prevalence Rates: Ethical and Policy Issues . American Journal of Public Health , 97 , 1179 – 1183 . Google Scholar Crossref Search ADS PubMed Special Rapporteur on the Right to Health ( 2006 ). Annual Report to the Commission on Human Rights (Main focus: A Human Rights- Based Approach to Health Indicators). UN Doc. E/CN.4/2006/48 . Special Rapporteur on the Right to Health ( 2008 ). Annual Report to the General Assembly (Main focus: Health Systems and the Right to the Highest Attainable Standard of Health). UN Doc. A/HRC/7/11 . Special Rapporteur on the Right to Health ( 2012 ) Annual Report to the General Assembly (Main Focus: Health Financing in the Context of the Right to Health). UN Doc. A /67/302 . Special Rapporteur on the Right to Health ( 2015 ). Report to the Human Rights Council (Focus: Work of the Mandate and Priorities of the Special Rapporteur). UN Doc. A/HRC/29/33 . Tallini A. ( 2011 ). Health is state of wellbeing (Letter). British Medical Journal , 343 , 435 – 436 . Google Scholar Crossref Search ADS Tobin J. ( 2012 ). The Right to Health in international Law . Oxford, New York : Oxford University Press . UN Committee on Economic, Social and Cultural Rights ( 1991 ). General Comment No. 4: The Right to Adequate Housing (Art. 11(1)). UN Doc. E/1992/23 . UN Committee on Economic, Social and Cultural Rights ( 1993a ). General Discussion on the Right to Health (Minimum core content and non-discrimination dimensions) (1). UN Doc. E/C.12/1993/SR.41 . UN Committee on Economic, Social and Cultural Rights ( 1993b ). General Discussion on the Right to Health (Minimum core content and non-discrimination dimensions) (2). UN Doc. E/C.12/1993/SR.42 . UN Committee on Economic, Social and Cultural Rights ( 1993c ). Rules of Procedure of the Committee. UN Doc. E/C.12/1990/4/Rev.1 . UN Committee on Economic, Social and Cultural Rights ( 1999 ). General Comment No. 12: The Right to Adequate Food (Art. 11). UN Doc. E/C.12/1999/5 . UN Committee on Economic, Social and Cultural Rights ( 2000 ). General Comment No. 14: The Right to the Highest Attainable Standard of Health (Art. 12). UN Doc. E/C.12/2000/4 . UN Committee on Economic, Social and Cultural Rights ( 2002 ). General Comment No. 15: The right to water (Art. 11). UN Doc E/C.12/2002/11 . UN Committee on Economic, Social and Cultural Rights ( 2012 ). Concluding Observations on Ecuador’s Third Periodic Report. UN Doc. E/C.12/ECU/CO/3 . UN General Assembly ( 1990 ). Need to Ensure a Healthy Environment for the Well-Being of Individuals. UN Doc. A/RES/45/94 . UN General Assembly ( 1993 ). High Commissioner for the Promotion and Protection of all Human Rights. UN Doc. A/RES/48/141 . Venkatapuram S. ( 2011 ). Health Justice: An Argument from the Capabilities Approach . Cambridge, UK : Polity Press . Wang D. W. L. ( 2013 ). Courts and Health Care Rationing: The Case of the Brazilian Federal Supreme Court . Health Economics, Policy and Law , 8 , 75 – 93 . Google Scholar Crossref Search ADS WHO ( 1960 ). Official Records of the World Health Organisation No. 105, The Work of WHO 1960: Annual Report to the Director-General to the World Health Assembly and to the UN . WHO ( 1963 ). Official Records of the World Health Organisation No. 122, Second Report of the World Health Situation 1957-1960 . WHO ( 2010 ). The world health report: Health systems financing: the path to universal coverage (Annual Report) . WHO ( 2013 ). The world health report: Research for universal health coverage (Annual Report) . WHO ( 2014 ). Trends in Maternal Mortality: 1990 to 2013. Estimates by WHO, UNICEF, UNFPA, The World Bank and the United Nations Population Division . WHO , Fenner F. , Henderson D. A. , Arita I. , Jezek Z. , Ladnyi I. D. ( 1988 ). Smallpox and its Eradication. History of International Public Health No.6 . WHO Interim Commission ( 1946 ). Official Records of the World Health Organisation No. 1, Minutes of the Technical Preparatory Committee for the International Health Conference held in Paris from 18 March to 5 April 1946 . Yamin A. E. ( 1996 ). Defining Questions: Situating Issues of Power in the Formulation of a Right to Health under International Law . Human Rights Quarterly , 18 , 398 – 438 . Google Scholar Crossref Search ADS PubMed © The Author 2015. Published by Oxford University Press. Available online at www.phe.oxfordjournals.org This article is published and distributed under the terms of the Oxford University Press, Standard Journals Publication Model (https://academic.oup.com/journals/pages/open_access/funder_policies/chorus/standard_publication_model) http://www.deepdyve.com/assets/images/DeepDyve-Logo-lg.png Public Health Ethics Oxford University Press

Clarifying the Right to Health through Supranational Monitoring: The Highest Standard of Health Attainable

Claire, Lougarre,
Public Health Ethics , Volume 11 (3) – Nov 1, 2018
Download PDF
14 pages

Loading next page...
 
/lp/oxford-university-press/clarifying-the-right-to-health-through-supranational-monitoring-the-AsBwCMIjcV

References (34)

Publisher
Oxford University Press
Copyright
© The Author 2015. Published by Oxford University Press. Available online at www.phe.oxfordjournals.org
ISSN
1754-9973
eISSN
1754-9981
DOI
10.1093/phe/phv037
Publisher site
See Article on Publisher Site

Abstract

Abstract As recognized by Gostin in Global Health Law (2014), the principles of equality and dignity put human rights law in a unique position to promote progress towards global health equity. This seems particularly relevant for the right to health, which entitles everyone to ‘the highest standard of health attainable’. However, it is still unclear what such a standard entails, and in order for the right to health to be adequately enforced and, thus, to effectively channel progress towards global health equity, it is fundamental that its scope of interests be clarified. Supranational human rights bodies have a key role in that regard. Not only can they clarify the legal content of the right to health for key actors through their monitoring procedures, they can also set common standards for states under their jurisdictions. Therefore, their contributions should be examined and optimized. Introduction After the United Nations (UN) explicitly decided to mainstream the protection of human rights in all its activities (UNGA, 1993),1 it became all the more fundamental to further research on their content and on their implementation. This was particularly relevant to economic, social and cultural rights, including the right to health, as legal scholars and judicial institutions had neglected them for two decades, having focused instead on civil and political rights. Over the past 15–20 years, the right to the highest standard of health attainable has thus received increasing attention in the literature and in litigation worldwide. Eminent authors such as Backman, Clapham, Ferraz, Flood, Forman, Gloppen, Gross, Hunt, Robinson, Tobin, Toebes, Yamin and, of course, Gostin; or case-law in Argentina, Brazil, Colombia, India or South Africa, have greatly contributed to shape the contemporary understanding of what the right to health entails, and how it ought to be implemented. However, this did not prevent criticisms to arise. Whether pointing at the weakness of its conceptual foundations, its excessively vague formulation or the inadequacy of its adjudication, criticisms suggest a lack of clarity as to what this right means. Nevertheless, such a lack of conceptual clarity hinders the implementation of the right to health and, subsequently, progress towards global health equity. How can key actors contribute towards realizing a right of which they do not know the meaning? In Global Health Law, Gostin (2014) declares with reason that defining states’ obligations to realize the right to health more precisely, and finding more effective tools to monitor and implement this right, represent some of its greatest challenges. This is particularly true regarding the scope of interests of this right, as lawyers, ethicists, physicians and philosophers ferociously disagree on what the ‘highest standard of health attainable’ entails. Furthermore, the increasing number of relevant treaties and institutions opens the possibility for different interpretations to be developed, some promoting global health equity more adequately than others. Therefore, clarifying how the ‘highest standard of health attainable’ should be understood in human rights law is crucial. This article will attempt to clarify what such a standard entails, but will do so by focusing on how quasi-judicial supranational human rights bodies (SNHRBs) can and should contribute to this exercise, for they have a key role in that regard which remains underexplored. Mandated to supervise the implementation of human rights instruments in which the right to health is enshrined, SNHRBs effectively delineate its legal content when deciding whether or not this right is realized, and when justifying why. In this article, I will thus, firstly, discuss the issues emerging from the definition of health in human rights law, justifying the need to understand the right to health as a right to an adequate health system to promote adequately global health equity. Secondly, I will assess whether the methods developed by SNHRBs to rationalize health when monitoring this right, can accommodate this framework. For this purpose, I will compare two interpretations: that developed by the UN Committee on Economic, Social and Cultural Rights, for it represents the most authoritative, and that developed by the European Committee of Social Rights, for it represents the most precise. Thirdly, I will discuss how the substance of the right to an adequate health system can be materialized into precise legal requirements in supranational monitoring. I will, therefore, focus on the territorial obligations weighing upon states worldwide to realise such a right. The approach taken in this article, therefore, will not rely on ethical theory alone but rather, inject it to the account I will elaborate of positive international human rights law. From the Right to the Highest Standard of Health Attainable to the Right to an Adequate Health System Main international and regional human rights treaties recognize the right to ‘the highest standard of health attainable’. However, it is unclear what this right entitles individuals to, and whether it imposes reasonable expectations upon states. A clear and adequate definition of health in human rights law is yet essential to enable SNHRBs to promote global health equity through the right to health. The Definition of Health in the World Health Organization Constitution: Unrealistic Expectations The World Health Organization (WHO) Constitution 1946 is the first text that recognized the existence of a right to health in the history of international law and more precisely, a ‘right to the highest standard of health attainable’. The WHO Constitution is not a human rights treaty and, thus, does not intend to define the legal content of the right to health. However, since the definition of health enshrined in its Preamble is recognized worldwide and guides international health policies, it is worth studying it, in an attempt to clarify what the ‘highest standard of health attainable’ means. The latter reads: ‘Health is a state of complete physical, mental and social well-being and not merely the absence of disease or infirmity.’ (WHO Constitution, 1946, Preamble) This definition, which associates health with a state of complete well-being, has generated heated debates amongst physicians, ethicists and lawyers, as it automatically categorizes persons with chronic diseases and with disabilities as being perpetually ill. Some experts argue that such formulation ignores the capacity of the human body to cope and function with chronic health challenges while reaching a feeling of well-being (e.g. Huber et al., 2011). Others, however, consider that health is not simply about survival and refuse to diminish the suffering experienced by these patients (e.g. Lewis, 2011; Tallini, 2011). This article has neither the medical expertise nor the philosophical insight required to answer such questions. Instead, its purpose is to examine whether the WHO definition of health can be translated into a legal right promoting global health equity, which I will answer negatively. Firstly, associating health with a state of ‘complete’ physical and mental well-being expands the scope of the right to health unrealistically. States cannot necessarily be held responsible for health conditions genetically inherited, or for common viral infections, as causation with their (in)actions cannot be established. This does not mean they should not assist individuals in accessing health services in that regard. This means that the right to health does not guarantee a right to be healthy, as recognized by the UN Committee on Economic, Social and Cultural Rights in General Comment 14 on the right to health (UNCESCR, 2000). Furthermore, states are not bound to fund every single health service. According to Wang, referring to Daniels (2008): No health care system—no matter how rich the country or how high the health expenditure per person—is able to offer unrestricted access to all treatments that may improve citizens’ health. (Wang, 2013: 78) Such limits can be found in human rights instruments, which often require that states achieve the highest standard of health attainable, and realize it progressively. As a result, individuals cannot claim compensation for suffering from a health condition that cannot be reasonably prevented, and cannot demand access to free treatments on the sole basis that it will improve their health. This would set unrealistic standards for states and disregard the need to prioritize in healthcare. Instead, the right to health entitles individuals with the best care possible for their conditions, in the limits of states’ resources. Therefore, the notion of ‘completion’ in the WHO definition should be understood instead as maximum attainable standards. Secondly, describing health as a state of complete ‘well-being’ tends to blur the distinction between health and happiness, and between what is fundamental to human dignity, a pillar of human rights law, and what is not. The Travaux Préparatoires of the WHO Constitution highlight intentions to adopt a ‘positive health’ approach, going beyond the notion of illness and embracing that of well-being instead.2 Nevertheless, recognizing a right to well-being is unrealistic. Whilst it is true the right to health is a means to happiness in a liberal egalitarian model, it cannot guarantee happiness, for such notion is vague and infinite (Raz, 1971). Not only does the meaning of well-being depend on personal experiences, lifestyles or cultures, but also the resources it involves are unlimited. What if someone ‘needs’ regular and expensive spa treatments abroad to reach well-being? Moreover, the absence of diseases does not necessarily amount to happiness (Saracci, 1997): someone can be perfectly healthy but deeply sorrowful, e.g. grieving the loss of a loved one. It is worth noting that the Travaux Préparatoires of the WHO Constitution somehow distinguish both notions, by affirming that health is a ‘prerequisite’ to happiness.3 Therefore, it is important health remains distinct from well-being, at least in the context of this article which aims at clarifying the scope of interests of the right to health through and for supranational monitoring. Thirdly, another problematic aspect of the WHO definition of health is the reference to ‘social’ well-being. Authors such as Nussbaum and Sen (1993) and Venkatapuram (2011) have promoted such understanding of health through the capabilities approach, by arguing that individuals should be given equal opportunities to access health and well-being. According to them, obstacles to this fulfilment (e.g. socio-economic factors, ethnicity, gender) should be addressed in order for individuals to reach control over their health, as also highlighted by Yamin (1996). It is of course desirable for equity purposes that all individuals benefit from adequate opportunities to access a state of social well-being. However, it would be excessively difficult to translate this into a legal requirement, and could create unreasonable expectations upon states. Such excessive inflation of the right to health would also discredit its legal existence. To conclude, in its attempt to transcend the biomedical aspect of health, the WHO definition of health has become all-inclusive but remains limited to an individual dimension. Therefore, translating it into a legal entitlement would set unrealistic expectations upon states and would fail to promote global health equity adequately. It is thus important SNHRBs consider the WHO definition as a historic reference (Bok, 2008), and turn towards human rights law instead when interpreting what the highest standard of health attainable means through their monitoring procedures. The Highest Standard of Health Attainable in Human Rights Instruments: Incoherent Standards Most legally binding human rights treaties that recognize a right to health embrace a right to ‘the highest standard of health attainable’. This formulation can be found at the international level: in Article 12 of the International Covenant on Economic, Social and Cultural Rights (ICESCR, 1966), Article 24 of the Convention on the Rights of the Child (1989), and Article 25 of the Convention on the Rights of Persons with Disabilities (2006). It can also be found at a regional level: in Article 11 of the European Social Charter (ESC, 1996), Article 16 of the African Charter on Human and Peoples' Rights (1981), Article 10 of the Additional Protocol to the American Convention on Human Rights in the Area of Economic, Social and Cultural Rights (Protocol of San Salvador, 1988) and Article 39 of the Arab Charter of Human Rights (2004). However, it is unclear what such wording means, and relying on the WHO definition of health has proven to be unhelpful. In order to provide further guidance as to what this entails, right to health provisions often include paragraphs clarifying the types of care or services individuals are entitled to. Nevertheless, the formulation found in these paragraphs can be problematic, as illustrated below through the examples of Article 12 ICESCR and Article 11 ESC. To clarify the scope of interests of the right to health, certain human rights treaties list aspects of health with which states must engage, thus defining this notion by way of examples. However, such lists do not define adequately what the highest standard of health attainable means, since they are intended to be non-exhaustive and are thus inevitably limited. This is the case for instance of Article 12 ICESCR, which reads: 1. The States Parties to the present Covenant recognize the right of everyone to the enjoyment of the highest attainable standard of physical and mental health. 2. The steps to be taken by the States Parties to the present Covenant to achieve the full realization of this right shall include those necessary for: (a) The provision for the reduction of the stillbirth-rate and of infant mortality and for the healthy development of the child; (b) The improvement of all aspects of environmental and industrial hygiene; (c) The prevention, treatment and control of epidemic, endemic, occupational and other diseases; (d) The creation of conditions which would assure to all medical service and medical attention in the event of sickness. (ICESCR, 1966, Article 12) Addressing infant, environmental and occupational health, as well as infectious diseases (listed in paragraph 2(a), (b) and (c)) is fundamental to achieve the highest standard of health attainable, and reflects the concerns of the drafters of the ICESCR (ECOSOC Commission on Human Rights, 1951, p. 12). However, this list is unprincipled since it does not particularly reflect the main causes of mortality or the priorities of the WHO at the time, as drawn in its mortality statistics or its Annual Report (WHO, 1960, 1963). Article 12(2) thus prioritizes certain fields of health over others with no rationale. Furthermore, lists fail to grasp the ever-changing aspect of global health: causes of mortality evolve over time, due to medical progress and diseases’ outbreaks. Therefore, it is undesirable SNHRBs rely exclusively on provisions that define the scope of interests of the right to health solely by topics. To clarify the scope of interests of the right to health, other human rights treaties list purposes which states must satisfy through healthcare, thus defining health by way of principles. However, the drafting of human rights treaties does not necessarily involve experts in medicine, public health, ethics or health economics. As a result, the conceptual framework on which the right to health relies may be inadequate. This is the case to a certain extent of Article 11 ESC, which reads: With a view to ensuring the effective exercise of the right to protection of health, the Parties undertake, either directly or in cooperation with public or private organisations, to take appropriate measures designed inter alia: (1) to remove as far as possible the causes of ill-health; (2) to provide advisory and educational facilities for the promotion of health and the encouragement of individual responsibility in matters of health; (3) to prevent as far as possible epidemic, endemic and other diseases, as well as accidents. (ESC, 1996, Article 11) The framework preventive-curative care reflected by this provision (although less clearly so by the first paragraph) has the advantage of being less likely to change, since it builds upon the main two purposes of healthcare. Healthcare principally aims at avoiding the occurrence of diseases before the manifestation of signs of ill-health, or aims at treating diseases after the manifestation of such signs. Important criticisms can be raised against the dichotomy preventive-curative healthcare nonetheless. First, such distinction is not always clear. For instance, should surgeries performed to remove solitary malignant cancerous tumours prior to metastasizing, be categorized as preventive or curative care? Second, this dichotomy is not always comprehensive. For instance, it excludes palliative care, which does not aim at ‘curing’ existing conditions, but at managing patients’ suffering. The right to health, however, has clearly been interpreted as including palliative care by General Comment 14 (UNCESCR, 2000) and by legal scholars such as Backman and Stjernswärd (in Clapham and Robinson, 2009). Third, a definition of health based on the purposes of healthcare does not clarify what preventive and curative health services states must guarantee. Should states fund mammograms for all girls and women to prevent the occurrence of breast cancer? Should states fund expensive cancer therapy when a cheaper but less effective treatment is available, and under what conditions? To conclude, right to health provisions do not provide a comprehensive and principled definition of health enabling SNHRBs to interpret adequately, and even less so clarify, the scope of interests of the right to health. Which sources should SNHRBs thus explore when delineating what the highest standard of health attainable means through their monitoring procedures, in order to promote global health equity? The Right to an Adequate Health System: A more Adequate Framework General Comment 14, drafted by the UN Committee on Economic, Social and Cultural Rights in 2000, is widely recognized as the most authoritative interpretation of the right to health in international human rights law. Whilst it requires that states guarantee health goods, services, personnel and facilities that are available, accessible, acceptable and of good quality (known as the AAAQ framework), it does not clarify to what extent. Interestingly, however, General Comment 14 also declares that the right to health entitles individuals to: […] a system of health protection which provides equality of opportunity for people to enjoy the highest attainable level of health.’ (UNCESCR, 2000, para. 8) Such approach, focusing on a more collective dimension of the right to health as it places the notion of health systems at the heart of the right, was further developed by the Special Rapporteur on the right to health (SRRH). He affirms, in his 2006 Annual Report: The right to health can be understood as a right to an effective and integrated health system, encompassing health care and the underlying determinants of health, which is responsive to national and local priorities, and accessible to all. (SRRH, Paul Hunt, 2006, para. 4) More recent reports of the SRRH confirm the focus on the collective dimension of the right. For instance, the SRRH’s annual reports on health systems (SRRH, 2008) or health financing (SRRH, 2012), or the 2015 report in which the SRRH identifies adequate public health policies as a priority: The Special Rapporteur is concerned that primary care and the modern public health approach often lose the battle for resources to the biomedical model and vertical programmes of treatment of diseases through specialized health care. (SRRH, 2015, para. 70) Such approach is also echoed in various documents produced at the UN level. For instance, the General Days of discussion held by the UN Committee on Economic, Social and Cultural Rights all point towards the importance to guarantee everyone’s access to appropriate health services under Article 12 ICESCR (UNCESCR, 1993a, 1993b). The Human Rights Council, in response to reports presented by the SRRH, also highlights the key role of accessible and strengthened health systems to realize the highest standard of health attainable (HRC, 2013, 2014). Furthermore, the last two World Health Reports emphasize the importance of universal health coverage (WHO, 2010, 2013). However, except the 2006 report of the SRRH, no UN document explicitly translates the scope of interests of the right to health into a right to access an adequate health system. Such formulation, however, is essential to a better monitoring of the right to health promoting global health equity adequately and thus, to a better implementation. It encapsulates the obligation for states to constantly strive to achieve high standards, key requirement of the obligation of progressive realization, since states must guarantee health systems that are responsive to the health needs of their population. However, it also allows the flexibility and reasonableness needed to determine what services are needed in each state and whether states can afford these services. Finally, such formulation is not restricted to the individual dimension of health, as this was the case with the WHO definition. It also embraces its collective dimension, by setting public health requirements such as the adoption of campaigns promoting healthy behaviour or combating unhealthy behaviour. It is worth noting that various academics have also stressed the importance of adequate health systems to guarantee the right to the highest standard of health attainable (e.g. Backman et al., 2008; Hunt and Backman, 2008). As a result, this article suggests that SNHRBs interpret the scope of interests of the right to the ‘highest standard of health attainable’ as a right to access and benefit from an adequate health system. Framing the Monitoring of the Right to Health Whilst the SRRH and General Comment 14 contribute to clarifying what the ‘highest standard of health attainable’ means, SNHRBs have the potential to further its definition through monitoring. When deciding whether or not the right to health is realized in their complaints or reporting procedures, and when justifying why, quasi-judicial SNHRBs effectively delineate the legal content of this right. It is thus important to analyse how they contribute to clarifying its scope of interests, and assess whether such contributions are appropriate to promoting global health equity. As highlighted in the introduction of this article, I will focus on how two SNHRBs in particular approach the ‘highest standard of health attainable’: The European Committee of Social Rights (European Committee), when monitoring Article 11 ESC, and the Committee on Economic, Social and Cultural Rights (UN Committee), when monitoring Article 12 ICESCR. Using Health Indicators for a Clearer Substance: The European Committee Every 4 years, States parties to the ESC must submit a report to the European Committee on its implementation. In response, the European Committee drafts documents called ‘Conclusions’ in which it declares whether the state has complied or not with its obligations under each right, and justifies why.4 Since 2001, the European Committee systematically uses the same 18 thematic indicators for each State party and in each reporting cycle, to assess states' performance under Article 11 ESC.5 Each indicator measures states’ compliance with one of the three obligations set by this provision: obligation to provide curative healthcare, health promotion services or preventive healthcare (Table 1). Table 1. Indicators developed by the European Committee under Article 11 ESC Obligation to provide curative healthcare (Article 11(1) ESC) Obligation to provide health promotion services (Article 11(2) ESC) Obligation to provide preventive healthcare (Article 11(3) ESC) Life expectancy and main causes of death of the population Health education in schools Air, water and noise pollution, as well as ionizing radiation Infant and maternal mortality Public information and awareness-raising Asbestos Access to healthcare Counselling and screening for pregnant women, children and adolescents Food safety Healthcare professional, facilities Counselling and screening for the rest of the population Measures to combat smoking and alcoholism Prophylactic measures Accidents prevention (used since Conclusions 2003) Obligation to provide curative healthcare (Article 11(1) ESC) Obligation to provide health promotion services (Article 11(2) ESC) Obligation to provide preventive healthcare (Article 11(3) ESC) Life expectancy and main causes of death of the population Health education in schools Air, water and noise pollution, as well as ionizing radiation Infant and maternal mortality Public information and awareness-raising Asbestos Access to healthcare Counselling and screening for pregnant women, children and adolescents Food safety Healthcare professional, facilities Counselling and screening for the rest of the population Measures to combat smoking and alcoholism Prophylactic measures Accidents prevention (used since Conclusions 2003) Table 1. Indicators developed by the European Committee under Article 11 ESC Obligation to provide curative healthcare (Article 11(1) ESC) Obligation to provide health promotion services (Article 11(2) ESC) Obligation to provide preventive healthcare (Article 11(3) ESC) Life expectancy and main causes of death of the population Health education in schools Air, water and noise pollution, as well as ionizing radiation Infant and maternal mortality Public information and awareness-raising Asbestos Access to healthcare Counselling and screening for pregnant women, children and adolescents Food safety Healthcare professional, facilities Counselling and screening for the rest of the population Measures to combat smoking and alcoholism Prophylactic measures Accidents prevention (used since Conclusions 2003) Obligation to provide curative healthcare (Article 11(1) ESC) Obligation to provide health promotion services (Article 11(2) ESC) Obligation to provide preventive healthcare (Article 11(3) ESC) Life expectancy and main causes of death of the population Health education in schools Air, water and noise pollution, as well as ionizing radiation Infant and maternal mortality Public information and awareness-raising Asbestos Access to healthcare Counselling and screening for pregnant women, children and adolescents Food safety Healthcare professional, facilities Counselling and screening for the rest of the population Measures to combat smoking and alcoholism Prophylactic measures Accidents prevention (used since Conclusions 2003) The structure and consistency of this method has enabled the development of a precise jurisprudence delineating what curative, promotional and preventive services states must guarantee in order to ensure an adequate health system and consequently, to realize the right to health (Lougarre, 2015). Therefore, the use of thematic health indicators presents several benefits. First, indicators enable the European Committee to set common standards within its jurisdiction, and to justify why. Second, they guarantee transparency and legal certainty for both duty-bearers and right-holders. Third, thematic health indicators leave the flexibility needed for the European Committee to take into consideration the health needs or resources constraints specific to each state. Nevertheless, such method tends to freeze the legal content of the right to health into a set list of issues, criticized in the context of Article 12(2) ICESCR. This can be observed through the reporting procedure of the European Committee, as the development of its jurisprudence under Article 11 ESC relies entirely on the themes embraced by these indicators. As a result, if indicators fail to cover a specific health issue, the European Committee is unlikely to monitor it or to develop norms in that regard. For instance, the European Committee has not created any indicator on individuals’ access to contraceptives and, consequently, has not developed any standard in this area. The obligation to provide access to reproductive health is yet well recognized in human rights law (e.g. in UNCESCR, 2000, para. 34, and in the Convention on the Elimination of all Forms of Discrimination Against Women, 1979, Article 12). However, a state could potentially conform to Article 11 ESC without guaranteeing affordable contraception to its population. Therefore, a static monitoring of the right to health can lead to a static interpretation of what the highest standard of health attainable entails. Thematic indicators can help SNHRBs rationalizing health for the purpose of right to health monitoring. However, they must be designed and updated through the guidance of medical and public health experts, to ensure they grasp adequately the scope of interests of this right. Would an ad hoc review be thus more beneficial? Using an ad hoc Review for a more Comprehensive Substance: The UN Committee Every 5 years, States parties to the ICESCR must submit a report to the UN Committee describing its implementation. In response, the UN Committee drafts documents called ‘Concluding Observations’ in which it assesses whether states have adequately realized each right, and formulates recommendations for improvement.6 Contrarily to the European Committee, the UN Committee uses no indicators and reaches no findings of non-conformity when assessing the realization of the right to health. Moreover, it does not use the AAAQ framework created by General Comment 14 (UNCESCR, 2000). Therefore, delineating what the UN Committee interprets as being an adequate health system can only be deduced from what repeatedly represents a source of concern or satisfaction in its Concluding Observations. Such absence of methodology leads to issues being reviewed for certain states and not others, or for the same state but not in all reporting cycles, without any clear and legitimate rationale to justify it. This clearly impedes the capacity of the UN Committee to develop a jurisprudence on the right to health that is as coherent and precise as the European Committee’s. Therefore, not only does its ad hoc review fail to secure transparency or legal certainty for duty-bearers and right-holders, it also fails to provide a comprehensive understanding of health. Nevertheless, such absence of methodology does not prevent the UN Committee from examining in depth certain health issues. On the contrary, its ad hoc review enables crucial topics that remain unmonitored by the European Committee to be explored. This is particularly true regarding mental health or sexual and reproductive health. Two main hypotheses as to why the UN Committee reviews these topics and not the European Committee may be drawn. Contrarily to the ESC, the ICESCR recognizes the right to physical and mental health, which might motivate the UN Committee to review mental healthcare. Furthermore, the UN Committee receives more non-governmental organizations’ (NGOs) shadow reports than the European Committee in its reporting procedure, and many of these concern sexual and reproductive health issues. To conclude, the UN and the European Committees’ interpretations of what constitutes an adequate health system tend to point towards a similar understanding overall. However, they fail to develop an understanding of health that is both comprehensive and coherent, yet necessary to promote appropriately global health equity. Materializing the Right to an Adequate Health System Whilst the interpretation of the UN and the European Committees highlights how they approach the ‘highest standard of health attainable’, it does not clarify how the right to an adequate health system can be materialized into standards applicable to all states, to promote progress towards global health equity. This article will thus make three main suggestions in that regard, drawing from the shortcomings identified in the definition and monitoring of the right to health in human rights law. Defining Adequate Health Systems: Human Rights Law and External Expertise Defining precisely what services states must guarantee through their health systems is an excessively challenging task for human rights lawyers alone, including SNHRBs. What is considered as harmful to health changes over time. Research frequently identifies new evidence of how certain substances, activities or behaviour can be dangerous for human health (e.g. smoking tobacco, which Doll and Hill related to lung cancer in 1954). What if juicing diets, a recent trend, are proved to provoke serious digestive disorders in 10 years time; should states be held responsible for not having sufficiently investigated their risks; if yes, to what extent? Moreover, diseases that are now particularly deadly, or disabilities that are particularly burdensome, may be better managed in the years to come thanks to medical and biomedical progress. For instance, HIV mortality is now relatively well controlled through anti-retroviral therapy; amputees’ quality of life can be greatly improved thanks to bionic prostheses; and smallpox has been eradicated (WHO, 1988). Such parameters modify the concept of health over time and as a result, change states’ duties towards their populations in right to health monitoring. However, further questions arise. Does the right to health imply that states must systematically provide access to new treatments improving patients’ conditions? If not, what factors should be considered, and how much importance should be given to treatments’ effectiveness or costs, and to patients’ quality of life? Finally, health often interacts with the notion of human responsibility. While the latter may determine civil litigation opposing patients with health insurance companies, how should it be approached in right to health monitoring? Should a state provide expensive palliative care to a heavy smoker with lung cancer, although it deployed multiple awareness-raising campaigns against tobacco and provided free lung cancer screening to its population? Whilst this article does not suggest it should not, justifications are required. Human rights law cannot answer these questions alone and certainly not generically. Therefore, it is crucial that the definition of ‘adequate health systems’ is constantly guided by the expertise of medical and public health professionals, as well as healthcare lawyers, economists and ethicists. This is how Tobin (2012) suggests that the right to health be clarified, by advocating for an interpretative approach based on a constructive engagement with its key actors. Nonetheless, two shortcomings can be observed in this approach (Lougarre, 2014). They highlight the limits of external expertise and the importance of a principled methodology. Firstly, it is morally undesirable that the scope of interests of the right to health is defined entirely through consensuses between key actors. What if, hypothetically, the majority of the interpretative community contended that the highest standard of health attainable implied mandatory HIV screening on pregnant women (e.g. argument developed by Schuklenk and Kleinsmidt, 2007), yet in breach of human rights norms? Therefore, I suggest that SNHRBs determine the adequacy of health systems by relying primarily on the cornerstones principles of human dignity and non-discrimination, and then on external expertise. Secondly, in order for the scope of interests of the right to health to be coherent, it is necessary that it is interpreted through a principled methodology. What if, hypothetically, half of the interpretative community argued that HIV testing on pregnant women should be mandatory, and the other half believed that it should simply be recommended; who should be listened? As a result, I suggest that SNHRBs interpret the highest standard of health attainable by respecting four principles. These are inspired from the principles developed by Tobin (2012), but readjusted by order of importance to address his shortcomings and reach the aim of this article, i.e. clarifying the scope of interests of the right to health through and for supranational monitoring. First, SNHRBs’ interpretation of the right to health must seek coherence within its legal system, to ensure principled consistency (inspired from the ‘fit’ test developed by Dworkin, 1986): the interpretation of the right must respect established principles of international human rights law. Second, their interpretation must be expertise-led to ensure an effective enjoyment of the right to health and set reasonable expectations upon states: it must rely on established research in medicine, public health, healthcare ethics, health economics and health law. Third, SNHRBs’ interpretation of the right to health must be context-sensitive: this right must be adapted to the environment in which it is to be implemented to be more effective. Finally, their interpretation must be clear and practical to be fit to supranational monitoring, as excessive vagueness threatens the realization of the right to health (Lougarre, 2014). It could be argued that such approach is fastidious, and that expertise is not always necessary in right to health monitoring and adjudication, when health systems are obviously inadequate. In Sierra Leone, for example, the number of maternal mortality reached 1100 deaths per 100,000 live births before the Ebola outbreak, by far the highest figure worldwide (WHO, 2014). Should Sierra Leone be automatically held accountable for breaching the right to health, since it clearly failed to provide basic maternal care, ‘core’ component of this right in General Comment 14 (UNCESCR, 2000)? Whilst this figure clearly reflects an inadequate health system and potentially represents a violation of this right, Sierra Leone’s compliance with human rights law must be also examined in the light of its resources and efforts. As outlined by Article 2(1) ICESCR and by the word ‘attainable’, states must progressively realize the right to health, according to the resources available to them. Such requirements are time-consuming, but so is the rule of law. However, this does not mean that no generic obligation can be derived from the right to health, and later applied to promote global health equity. The Obligation to Identify (and address) Health Needs In order to set up any adequate health system, it is fundamental that states first understand the particular health needs of their populations. As argued by Alston (1987), states are primarily accountable for devising adequate means to implement human rights, and in the context of this article, the right to health. Whilst it is excessively challenging for human rights lawyers, including SNHRBs, to define what is an adequate health system, they should recognize states’ obligation to identify (and address) the health needs of their populations. Firstly, such obligation represents the essence of reporting procedures before SNHRBs. Reporting procedures do not simply require that states provide data on their health systems. They also require that states collect data in the first place, which eventually forces them to observe the successes and failures of their health systems. Therefore, identifying populations’ needs is essential to the design of appropriate health policies, as highlighted by the UN and the European Committees when commenting on states’ reports.7 Some may contend that this obligation is costly, as numerous administrative means must be established to collect data in the health sector. However, the analysis of the sources used by the European Committee, and that of the discussions held within the UN Committee, reveal that data are often available and that reporting procedures tend to require that states compile data rather than collect it. As for states in which data are unavailable, the obligation to identify health needs represents a preliminary step to providing appropriate healthcare. Assistance by intergovernmental agencies and NGOs is thus crucial in this concern. Secondly, states’ obligation to identify the health needs of their populations is related to the principle of non-discrimination, a pillar of human rights law. According to this principle, states must refrain from committing de jure and de facto discrimination. States must ensure everyone can access their health systems on the same basis, in law and in practice. Such requirement is clearly recognized through the monitoring procedures of the UN and the European Committees. For example, in its complaint procedure, the European Committee declared that: ‘[t]reating the migrant Roma in the same manner as the rest of the population when they are in a different situation constitutes discrimination’, and found France in breach of Article 11 ESC ((ECSR, 2012) para. 163). However, de facto discrimination can be difficult to detect. Avoiding them obliges states to collect disaggregated data in order to verify that groups vulnerable to health discrimination enjoy their right to health to the same extent than the rest of the population. Both the UN and the European Committees regularly request that states provide such disaggregated data in their monitoring procedures. As a result, the principle of non-discrimination implies positive actions from states towards vulnerable groups, which often seems forgotten through the ‘negative’ dimension of the obligation to respect endorsed by General Comment 14 (UNCESCR, 2000). In order to prevent de facto health discrimination, it is nonetheless crucial to conceptualize what vulnerability represents in access to health. General Comment 14, the SRRH, as well as the UN and the European Committees, all identify the following groups as vulnerable to health discrimination: women; children and adolescents; old persons; persons with disabilities; lesbians, gays, bisexuals and transgender persons; ethnic or national minorities; indigenous populations; the poor; the homeless; migrants, refugees or stateless persons; prisoners; persons living in rural areas; persons living with HIV; and other persons with a particular religion, political opinion or birth status. However, few authors have written about what constitutes a vulnerable group in human rights law. Chapman and Carbonetti (2011) interestingly distinguish vulnerable groups with fixed status (e.g. women, persons with disabilities) from vulnerable groups with variable statuses (e.g. the poor, the homeless). Fixed vulnerable statuses would involve permanent protection against health discrimination, while variable vulnerable statuses would involve temporary protection. Nevertheless, further questions arise. What are the obligations binding states to guarantee vulnerable groups’ right to health? Since human rights law clearly recognizes persons living with HIV as being a vulnerable group, does that mean any person with a particular health status can be considered as such? If not, why, and how can this work in the context of right to health monitoring? Further research is needed to answer these questions. Thirdly, states’ obligation to identify the health needs of their population derives from the obligation to deploy health promotion campaigns targeting the main health issues affecting the population. Such an obligation, recognized by the UN and the European Committees, inevitably involves collecting data to detect what main health issues affect populations’ health. This includes, for instance, providing sufficient education in sexual and reproductive health if teenage pregnancy rates are high, as requested by the UN Committee in its recent Concluding Observations on Ecuador (UNCESCR, 2012). This can also include providing screening for diseases responsible for high numbers of early death, as requested by the European Committee in its Conclusions XIX-2 on Greece (ECSR, 2009). Fourthly, identifying the health needs of the population is crucial to an adequate epidemiological monitoring of communicable diseases such as HIV. The evolution of the number of patients infected by a particular virus and the adequacy of measures to control it, are both regularly reviewed by the UN and the European Committees. This, again, requires that states collect a certain type of data to understand what are populations’ needs in this concern. Finally, fulfilling the obligation to identify the health needs of the population can also assist states in prioritizing their resources within the health sector. If the data collected show a particularly high suicide rate and a low maternal mortality rate, evidently the state does not immediately need to increase the budget allocated to obstetric care but must urgently expand that allocated to mental care. However, SNHRBs should not translate states’ obligation to identify the health needs of their populations into a requirement to constantly collect data for all health issues and for all vulnerable groups. This may meet requirements of global health equity but would set unrealistic expectations upon states. Instead, this obligation requires that states develop an intelligent understanding of health needs. One issue remains nonetheless: what types of health needs are SNHRBs ready to consider? Should they extend it to social determinants of health? The Inflation Caused by Social Determinants of Health In order to be in good health, it is crucial individuals access adequate food, water, housing and live in a healthy environment. Such parameters, commonly called ‘social determinants of health’, are clearly recognized by the WHO and by General comment 14, and are essential to achieve global health equity. Nevertheless, defining health needs through social determinants of health raises two issues in the context of right to health monitoring by SNHRBs: they widen its scope of interests considerably and unduly. The right to health has often been criticized for being too vague and too complex to be adjudicated. Therefore, incorporating social determinants of health into its definition increases considerably its scope, and thus, the complexity of its legal content as each determinant requires a different type of expertise. This decreases the likelihood of successful monitoring or adjudication, thus affecting its implementation at a global scale. Moreover, other parameters have a determining effect on individuals’ health. Work–life balance, social background and education, for instance, have all been proven to affect individuals’ health. Why not considering them as social determinants of health? It is desirable to understand health needs through a capabilities approach in order to design better policies, as advocated by Venkatapuram (2011). However, it is impractical to translate the overall picture in right to health monitoring. Furthermore, it is unnecessary to extend the scope of the right to health to social determinants such as food, water, sanitation, housing and healthy environment. These elements have already been translated into rights of their own in human rights law. At the international level, the rights to food, water, sanitation and housing have emerged from Article 11 ICESCR on the right to an adequate standard of living, as attested by various General Comments drafted by the UN Committee.8 Furthermore, the UN shows willingness to recognize a right to a healthy environment, as suggested by the UNGA (1990) and by the Independent Expert on the issue of human rights obligations relating to the enjoyment of a safe, clean, healthy and sustainable environment (HRC, 2012). At a regional level, these rights are also protected but less homogenously. Article 21 of the African Charter on Human and Peoples' Rights (1981) on the right to dispose of natural resources tends to be interpreted as protecting the rights to food, water and healthy environment. Articles 11 and 12 of the Protocol of San Salvador (1988) clearly recognize a right to food and to a healthy environment. Finally, Article 31 ESC explicitly protects a right to housing, and Article 11 ESC is usually also interpreted as protecting a right to a healthy environment. Therefore, it is preferable that SNHRBs understand interactions between the right to health and social determinants of health through the principle of the interdependence of rights, as argued by Tobin (2012). This would avoid complexifying the monitoring of the right to health. This article thus recommends that social determinants of health only be monitored through the right to health under three non-cumulative conditions. Firstly, SNHRBs may monitor social determinants of health through the right to health if they have an actual impact on individuals’ health. They should, thus, not be reviewed for the potential impact they may have. Such approach is adopted by the UN Committee, as it only refers to Article 12 ICESCR when food, water, environment or housing issues have an actual impact on individuals’ health. Malnutrition, water contamination, the absence of a sewage system and air pollution are thus sometimes mentioned in its comments on Article 12. However, the UN Committee reviews their potential impact (i.e. national standards, monitoring systems and budgets in place) under Article 11 ICESCR instead. As a result, this approach avoids inflating the scope of the right to health while enabling the development of a more comprehensive and, thus, protective jurisprudence under each right. Secondly, SNHRBs monitoring the right to health may exceptionally consider the potential impact of social determinants on individuals’ health, in the context of health promotion campaigns. This approach is adopted by the European Committee, in its jurisprudence on Article 11(2) ESC, since it considers that states must take measures to warn their populations against risk factors impeding their health. It thus expects states to raise awareness in schools and among the overall population, on healthy-eating, environmental issues and any health issues prevalent in the country. Such standards were developed in its XV-2 Conclusions (2001) on Belgium, and in its 2005 Conclusions on Moldova (ECSR, 2001, 2005). That way, the relations between social determinants of health and the right to health are acknowledged but limited to a realistic monitoring framework. Finally, whilst it is not desirable that SNHRBs monitor social determinants of health through the right to health for their potential impact on health (except for promotion purposes), it represents a heuristic tool to protect rights that do not always benefit from sufficient recognition. For instance, when the European Committee evaluates the implementation of Article 11 ESC in its reporting procedure, it systematically reviews standards and measures taken on food safety; water, soil and air pollution; ionizing radiation; and asbestos. As a result, it assesses the potential impact that such issues may have on individuals’ health (in the event such standards or measures are deemed inadequate). In theory, such monitoring is not desirable since food, water, environment and housing significantly inflate the scope of the right to health. However, the ESC does not explicitly recognize a right to food, water or sanitation. It recognizes a right to housing in Article 31 ESC, but the latter is not ratified by all Member States.9 Therefore, if the European Committee did not incorporate these issues in its interpretation on Article 11 ESC, they would remain unmonitored, at the expense of individuals’ basic human rights necessary to further global health equity. Conclusion This article suggests that the scope of interests of the right to the highest standard of health attainable be clarified and translated into clear legal requirements to be better monitored and thus, to promote appropriately global health equity. To this aim, it used a comparative analysis between the monitoring of the ICESCR by the UN Committee on Economic, Social and Cultural Rights, and that of the ESC by the European Committee on Social Rights. In a first section, I highlighted the failure of the WHO Constitution and of human rights treaties such as the ICESCR and the ESC, to define adequately what the highest standard of health attainable meant. I consequently emphasized the relevance of the definition given by the SRRH, who recognizes a right to an adequate health system. In a second section, I examined how SNHRBs approached the scope of interests of the right to health when monitoring it. I analysed in particular how indicators, such as those used by the European Committee, could clarify the substance of this right, and how an ad hoc review, such as that adopted by the UN Committee, could broaden its scope. Finally, in a third section, I argued that the right to an adequate health system should be materialized into clearer legal requirements in order to be better monitored and promote more satisfactorily global health equity. Therefore, I suggested that SNRHB defined adequate health systems through an appropriate use of external expertise; recognized states’ obligation to identify (and address) the health needs of their populations; and understood social determinants of health through the principle of interdependence of rights, to avoid inflating the scope of the right to health. To conclude, to enhance the realization of the right to health worldwide, and therefore, promote progress towards global health equity, it is fundamental that SNHRBs contribute to clarify what this right entails and do so adequately. This would not only enhance their monitoring, but also guide key actors such as states, national judges, individuals and NGOs. As recognized by Gostin (2014), the contribution of SNHRBs to global health law should not be underestimated. Acknowledgements I am very grateful to Professor Colm O’Cinneide and Dr Jeff King for their extensive help and feedback on this article, which is also part of my PhD thesis. Thank you also to the audience of the workshop ‘A Critical Exploration of Global Health Law’ held in the University of Birmingham on 21–22 November 2014, to Laurence Gostin for his inspiration, and to the organizers of the workshop, Dr Sheelagh McGuinness and Professor Jean V. McHale. Footnotes 1. Following the adoption of the Vienna Declaration and Programme of Action at the 1993 World Conference on Human Rights, the UN created the High Commissioner for Human Rights who has for mandate to integrate the protection and promotion of human rights in all activities of the UN. This was succeeded by the 2005 World Summit Outcome Document. 2. For the Travaux Préparatoires of the WHO Constitution, see WHO, Interim Commission (1946) ‘Official Records of the World Health Organisation No. 1', p. 19 para 1(c), and Annex 9 'Suggestions relating to the Constitution of an International Health Organisation' (p. 58, Preamble). 3. Ibid. 4. See Articles 21 to 24 ESC, 1961; Governmental Committee of the European Social Charter (2006), and the Conclusions of the European Committee, which are available at http://www.coe.int/t/dghl/monitoring/socialcharter/Conclusions/ConclusionsIndex_en.asp (last accessed 25 September 2015). 5. In its last reporting cycle on Article 11 ESC (2013), the European Committee exceptionally merged several indicators, thus reducing their number (ECSR, 2013a, 2013b), but it is unsure whether this method will be kept in the next cycle (2017). 6. For more details on the reporting procedure, see Articles 16 and 17 ICESCR, and the ‘Rules of Procedure’ of the UN Committee (UNCESCR, 1993c). 7. For instance, in its Conclusions 2013, the European Committee finds Poland in breach of Article 11 for excessively long waiting lists, after having balanced it with the improvements brought by a legislation aimed at effective data collection. 8. See UNCESCR (1991) for General Comment No. 4; UNCESCR (1999) for General Comment No. 12; and UNCESCR (2002) for General Comment No. 15. 9. Two versions of the ESC coexist: one dated 1961 and one dated 1996, due to the unwillingness of certain states to ratify the most recent version; see the table of accepted provisions (as of March 2015) http://www.coe.int/t/dghl/monitoring/socialcharter/Presentation/ProvisionTableRevMarch2015_en.pdf (accessed 25 September 2015). References Additional Protocol to the American Convention on Human Rights in the Area of Economic, Social and Cultural Rights ( Protocol of San Salvador) (adopted 17 November 1988, entered into force 16 November 1999) OAS Treaty Series No. 69 ( 1988 ). African Charter on Human and Peoples’ Rights (adopted 27 June 1981, entered into force 21 October 1986) 21 ILM 58 ( 1982 ). Alston P. ( 1987 ). Out of the Abyss: The Challenges Confronting the New U.N. Committee on Economic, Social and Cultural Rights . Human Rights Quarterly , 9 , 332 – 381 . Google Scholar Crossref Search ADS Arab Charter on Human Rights (adopted 22 May 2004, entered into force 15 March 2008) reprinted in 12 International Human Rights Reports 893 ( 2005 ). Backman G. , Hunt P. , Khosla R. , Jaramillo-Strouss C. , Fikre B. M. , Rumble C. , Pevalin D. , Páez D. A. , Pineda M. A. , Frisancho A. , Tarco D. , Motlagh M. , Farcasanu D. , Vladescu C. ( 2008 ). Health Systems and the Right to Health: An Assessment of 194 Countries . The Lancet , 372 , 2047 – 2085 . Google Scholar Crossref Search ADS Bok S. ( 2008 ). Rethinking the WHO Definition of Health . In Heggenhougen K. , Quah S. R. (eds), International Encyclopedia of Public Health . Oxford : Academic Press , pp. 590 – 597 . Chapman A. R. , Carbonetti B. ( 2011 ). Human Rights Protections for Vulnerable and Disadvantaged Groups: The Contributions of the UN Committee on Economic, Social and Cultural Rights . Human Rights Quarterly , 33 , 682 – 732 . Google Scholar Crossref Search ADS Clapham A. , Robinson M. (eds) ( 2009 ). Realizing the Right to Health . Zürich : Swiss Human Rights Book, Rüffer & Rub . Constitution of the World Health Organization, as amended ( adopted 7 April 1946, entered into force 7 April 1948) 14 UNTS 185 . Convention on the Elimination of All Forms of Discrimination Against Women ( adopted 18 December 1979, entered into force 3 September 1981) 1249 UNTS 13 . Convention on the Rights of Persons with Disabilities ( adopted 13 December 2006, entered into force 3 May 2008) 2515 UNTS 3 . Convention on the Rights of the Child ( adopted 20 November 1989, entered into force 2 September 1990) 1577 UNTS 3 . Daniels N. ( 2008 ). Just Health: Meeting Health Needs Fairly . New York; Cambridge : Cambridge University Press . Doll R. , Hill A. B. ( 1954 ). The Mortality of Doctors in Relation to Their Smoking Habits . British Medical Journal , 1 , 1451 – 1455 . Google Scholar Crossref Search ADS PubMed Dworkin R. ( 1986 ). Law’s Empire . Oxford : Hart Publishing . ECOSOC Commission on Human Rights ( 1951 ). Summary Record of the 223rd Meeting. UN Doc. E/CN.4/SR.223 . European Committee of Social Rights ( 2001 ). Conclusions on states’ reports, cycle XV-2 . European Committee of Social Rights ( 2005 ). Conclusions on states’ reports, cycle 2005 . European Committee of Social Rights ( 2009 ). Conclusions on states’ reports, cycle XIX-2. European Committee of Social Rights ( 2012 ). Médecins du Monde International v. France. Complaint No. 67/2011, Decision on the Merits. European Social Charter ( adopted 18 October 1961, entered into force 26 February 1965) CETS No. 035 ). European Social Charter (as amended) ( adopted 3 May 1996, entered into force 1 July 1999) CETS No. 163 ). European Committee of Social Rights ( 2013a ). Conclusions on states’ reports, cycle XX-2. European Committee of Social Rights ( 2013b ). Conclusions on states’ reports, cycle 2013. Gostin L. O. ( 2014 ). Global Health Law . Cambridge, Massachusetts : Harvard University Press . Governmental Committee of the European Social Charter ( 2006 ). New System for the Presentation of Reports on the Application of the European Social Charter. Document CM(2006)53 (item 4.2). Huber M. , Knottnerus J. A. , Green L. , van der Horst H. , Jadad A. R. , Kromhout D. , Leonard B. , Lorig K. , Loureiro M. I. , van der Meer J. W. , Schnabel P. , Smih R. , van Wheel C. , Smid H. ( 2011 ). How should we define health? British Medical Journal , 343 , 235 – 237 . Google Scholar Crossref Search ADS Human Rights Council ( 2012 ). Preliminary Report of the Independent Expert on the Issue of Human Rights Obligations Relating to the Enjoyment of a Safe, Clean, Healthy and Sustainable Environment. UN Doc. A /HRC/22/43 . Human Rights Council , 2013 . Access to Medicines in the Context of the Right of Everyone to the Enjoyment of the Highest Attainable Standard of Physical and Mental Health. UN Doc. A/HRC/23/L.10/Rev.1. Human Rights Council , 2014 . Promotion of the Right of Migrants to the Enjoyment of the Highest Attainable Standard of Physical and Mental Health. UN Doc. A/HRC/26/L.30 . Hunt P. , Backman G. ( 2008 ). Health Systems and the Right to the Highest Attainable Standard of Health . Health and Human Rights , 10 , 81 – 92 . Google Scholar Crossref Search ADS PubMed International Covenant on Economic, Social and Cultural Rights (adopted 16 December 1966, entered into force 3 January 1976) 993 UNTS 3 . Lewis D. M. ( 2011 ). WHO Definition of Health Remains Fit for Purpose (Letter) . British Medical Journal , 343 , 435 . Lougarre C. ( 2014 ). (Book review) John Tobin, the Right to Health in International Law, Oxford: Oxford University Press, 2012. The Modern Law Review, 77, 336 – 342 . Lougarre C. ( 2015 ). What does the Right to Health Mean? The Interpretation of Article 11 of the European Social Charter by the European Committee of Social Rights . Netherlands Quarterly of Human Rights , 33 , 326 – 354 . Google Scholar Crossref Search ADS Nussbaum M. , Sen A. ( 1993 ). The Quality of Life . New York : Clarendon Press . Raz J. ( 1971 ). Legal Principles and the Limits of Law . Yale Law Journal , 81 , 823 – 854 . Google Scholar Crossref Search ADS Saracci R. ( 1997 ). The World Health Organisation Needs to Reconsider its Definition of Health . British Medical Journal , 314 , 1409 – 1410 . Google Scholar Crossref Search ADS PubMed Schuklenk U. , Kleinsmidt A. ( 2007 ). Rethinking Mandatory HIV Testing During Pregnancy in Areas With High HIV Prevalence Rates: Ethical and Policy Issues . American Journal of Public Health , 97 , 1179 – 1183 . Google Scholar Crossref Search ADS PubMed Special Rapporteur on the Right to Health ( 2006 ). Annual Report to the Commission on Human Rights (Main focus: A Human Rights- Based Approach to Health Indicators). UN Doc. E/CN.4/2006/48 . Special Rapporteur on the Right to Health ( 2008 ). Annual Report to the General Assembly (Main focus: Health Systems and the Right to the Highest Attainable Standard of Health). UN Doc. A/HRC/7/11 . Special Rapporteur on the Right to Health ( 2012 ) Annual Report to the General Assembly (Main Focus: Health Financing in the Context of the Right to Health). UN Doc. A /67/302 . Special Rapporteur on the Right to Health ( 2015 ). Report to the Human Rights Council (Focus: Work of the Mandate and Priorities of the Special Rapporteur). UN Doc. A/HRC/29/33 . Tallini A. ( 2011 ). Health is state of wellbeing (Letter). British Medical Journal , 343 , 435 – 436 . Google Scholar Crossref Search ADS Tobin J. ( 2012 ). The Right to Health in international Law . Oxford, New York : Oxford University Press . UN Committee on Economic, Social and Cultural Rights ( 1991 ). General Comment No. 4: The Right to Adequate Housing (Art. 11(1)). UN Doc. E/1992/23 . UN Committee on Economic, Social and Cultural Rights ( 1993a ). General Discussion on the Right to Health (Minimum core content and non-discrimination dimensions) (1). UN Doc. E/C.12/1993/SR.41 . UN Committee on Economic, Social and Cultural Rights ( 1993b ). General Discussion on the Right to Health (Minimum core content and non-discrimination dimensions) (2). UN Doc. E/C.12/1993/SR.42 . UN Committee on Economic, Social and Cultural Rights ( 1993c ). Rules of Procedure of the Committee. UN Doc. E/C.12/1990/4/Rev.1 . UN Committee on Economic, Social and Cultural Rights ( 1999 ). General Comment No. 12: The Right to Adequate Food (Art. 11). UN Doc. E/C.12/1999/5 . UN Committee on Economic, Social and Cultural Rights ( 2000 ). General Comment No. 14: The Right to the Highest Attainable Standard of Health (Art. 12). UN Doc. E/C.12/2000/4 . UN Committee on Economic, Social and Cultural Rights ( 2002 ). General Comment No. 15: The right to water (Art. 11). UN Doc E/C.12/2002/11 . UN Committee on Economic, Social and Cultural Rights ( 2012 ). Concluding Observations on Ecuador’s Third Periodic Report. UN Doc. E/C.12/ECU/CO/3 . UN General Assembly ( 1990 ). Need to Ensure a Healthy Environment for the Well-Being of Individuals. UN Doc. A/RES/45/94 . UN General Assembly ( 1993 ). High Commissioner for the Promotion and Protection of all Human Rights. UN Doc. A/RES/48/141 . Venkatapuram S. ( 2011 ). Health Justice: An Argument from the Capabilities Approach . Cambridge, UK : Polity Press . Wang D. W. L. ( 2013 ). Courts and Health Care Rationing: The Case of the Brazilian Federal Supreme Court . Health Economics, Policy and Law , 8 , 75 – 93 . Google Scholar Crossref Search ADS WHO ( 1960 ). Official Records of the World Health Organisation No. 105, The Work of WHO 1960: Annual Report to the Director-General to the World Health Assembly and to the UN . WHO ( 1963 ). Official Records of the World Health Organisation No. 122, Second Report of the World Health Situation 1957-1960 . WHO ( 2010 ). The world health report: Health systems financing: the path to universal coverage (Annual Report) . WHO ( 2013 ). The world health report: Research for universal health coverage (Annual Report) . WHO ( 2014 ). Trends in Maternal Mortality: 1990 to 2013. Estimates by WHO, UNICEF, UNFPA, The World Bank and the United Nations Population Division . WHO , Fenner F. , Henderson D. A. , Arita I. , Jezek Z. , Ladnyi I. D. ( 1988 ). Smallpox and its Eradication. History of International Public Health No.6 . WHO Interim Commission ( 1946 ). Official Records of the World Health Organisation No. 1, Minutes of the Technical Preparatory Committee for the International Health Conference held in Paris from 18 March to 5 April 1946 . Yamin A. E. ( 1996 ). Defining Questions: Situating Issues of Power in the Formulation of a Right to Health under International Law . Human Rights Quarterly , 18 , 398 – 438 . Google Scholar Crossref Search ADS PubMed © The Author 2015. Published by Oxford University Press. Available online at www.phe.oxfordjournals.org This article is published and distributed under the terms of the Oxford University Press, Standard Journals Publication Model (https://academic.oup.com/journals/pages/open_access/funder_policies/chorus/standard_publication_model)

Journal

Public Health Ethics – Oxford University Press

Published: Nov 1, 2018

There are no references for this article.