A right to a minimum adequate standard of health care

Abstract

This thesis undertakes a fresh inquiry into the status of the right to health care under international law, with a view to explaining how the right to health care has been variously interpreted. Previous studies into the right to health care have primarily focused on its philosophical basis, and while these studies have contributed significantly to the ethical debate on the existence of such a right, this thesis has as its foundation, the fact that there has been legal recognition of its existence in the form of its inclusion in international conventions and supporting documents, as well as, a in particular, domestic Constitutions and related Bills of Rights. It should be noted that this thesis will not examine in detail all documentation in which a right to health care in its various forms is mentioned. Rather a purposely selective examination has been instituted.In respect to this selective examination, the process of selection was a deliberate one, specifically in relation to the case studies undertaken. The choice of countries to be of focus was based upon the different nature of the documentation in which the right to the health care could be said to be founded: Constitution, Charter or Bill of Rights, International Convention only, other legislative basis, or, as will be seen in the case of Tibet, International Convention but effectively in name only. In the opinion of the writer, this selection will provide a representative overview of the status of a right to health care in international law. The thesis is centrally concerned with the idea that the legal recognition of a socio-economic right, such as the right to health care, does not ensure that it is capable of enforcement. Rather, this thesis proposes that the legal recognition of a socio-economic right, specifically, a right to health care, has value, and can only claim validity from what the existence of the right can provide from a moral or ethical perspective. Further, this thesis proposes that the 'definability' - in other words, for justiciability' of socio-economic rights depends on their a right to be the subject of judicial scrutiny, it must be capable of sustaining a definition sufficient in substance to allow for judicial determination as to whether or not there has been a breach in its provision.