THE RIGHT TO HEALTH: LEGAL CONTENT THROUGH SUPRANATIONAL MONITORING Ph.D thesis Ph.D candidate: Claire Marie Valérie Lougarre University College London: Faculty of Laws Supervisors: Professor Colm O’Cinneide, Dr Jeff King Declaration I, Claire Lougarre confirm that the work presented in this thesis is my own. Where information has been derived from other sources, I confirm that this has been indicated in the thesis. i Abstract Whilst economic, social and cultural rights benefit from a better protection worldwide than when they were first recognised in the Universal Declaration of Human Rights 1948, they remain criticised for being too vague and, thus, not legally enforceable. This is particularly relevant to the right to health, since it embraces complex ethical, economic and legal issues often calling into question its substance. Such criticisms, nonetheless, threaten its implementation: how can key actors contribute to realising a right of which they do not understand the meaning? This thesis, therefore, aims at clarifying what the human right to health entails, and will focus on how this can be done through supranational monitoring. Mandated to supervise the implementation of human rights instruments, supranational human rights bodies (SNHRBs) embody the most authoritative interpretation of the right to health. When evaluating whether or not states comply with their obligations and when justifying why, SNHRBs effectively delineate the legal content of this right. Therefore, this thesis will analyse how SNHRBs contribute to clarifying the legal content of the right to health in the course of their quasi-judicial monitoring procedures, and how their interpretation can be optimised for that purpose. I will particularly study the interpretation of the Committee on Economic, Social and Cultural Rights (United Nations) and the European Committee of Social Rights (Council of Europe), for they are the most illustrative of how supranational monitoring of the right to health feeds into its substance, and vice versa. Such comparative analysis will enable me to develop a theoretical account assisting SNHRBs in interpreting the legal content of the right to health more clearly, to highlight ‘best practice’, and to discuss compatibility between universal and regional standards. As a result, this thesis lies primarily in international human rights law but will also involve aspects of public international law and, modestly, public health. ii Table of contents INTRODUCTION 1 The object of the thesis 1 The scope of the thesis 6 The methodology of the thesis 10 The narrative of the thesis 18 PART I: THE RIGHT TO HEALTH IN SEARCH OF CONCEPTUAL CLARITY 20 Chapter 1 Introductory remarks: the relevance and vagueness of the right to health in international human rights law 21 Introduction 21 1.1 The right to health, a right historically relevant for human rights law 22 1.2 The right to health, a right vaguely defined in human rights law 42 Conclusion 56 Chapter 2 The interpretation of Article 12 ICESCR by the UN Committee on Economic, Social and Cultural Rights: conceptual clarity, a long way to go 58 Introduction 58 2.1 The right to health in the International Covenant on Economic, Social, and Cultural Rights 60 2.2 The normative scope of the right to health: unclear standards 66 2.3 States’ obligations to realise the right to health: unclear framework 81 2.4 Critical overview 97 Conclusion 102 Chapter 3 The interpretation of Article 11 ESC by the European Committee of Social Rights: attempts of clarification 104 Introduction 104 3.1 The right to health in the European Social Charter 106 3.2 The normative scope of the right to health: the recognition of express obligations in the jurisprudence of the committee 112 3.3 States’ obligations to realise the right to health: recognition of implied obligations in the methodology of the committee 122 3.4 Critical overview 135 Conclusion 145 PART I: CONCLUDING REMARKS 147 iii PART II: THE RIGHT TO HEALTH TOWARDS FURTHER CONCEPTUAL CLARITY 149 Chapter 4 Clarifying the normative scope of the right to health in supranational monitoring 150 Introduction 150 4.1 The right to an adequate health system (the scope of interests) 151 4.2 The right to a health system responsive to its cultural environment (the scope of application) 176 4.3 The right to a health system accessible to all (the scope of protection) 187 Conclusion 201 Chapter 5 Clarifying states’ obligations to realise the right to health in supranational monitoring 203 Introduction 203 5.1 The obligation to progressively realise the right to health 205 5.2 Minimum core obligations to realise the right to health and reasonableness test 244 Conclusion 262 Chapter 6 Concluding remarks: key challenges to conceptual clarity across SNHRBs 264 Introduction 264 6.1 Fragmentation of human rights law and harmonising the normative scope of the right to health 266 6.2 Diversity of quasi-judicial monitoring avenues and adapting the review of states’ obligations to practical realities 285 6.3 Enforcement and SNHRBs’ limits in giving life to their own interpretation 300 Conclusion 303 PART II: CONCLUDING REMARKS 305 CONCLUSION 307 DETAILED TABLE OF CONTENTS 313 APPENDIX 317 BIBLIOGRAPHY 319 iv Acknowledgments I would like to express my deepest gratitude to my supervisors, Mr Colm O’Cinneide and Dr Jeff King, for their invaluable help and guidance throughout the PhD programme and in the writing of this thesis. This thesis could not have been written without the guidance of Mr O’Cinneide. His time, attention, and experience as a member of the European Committee of Social Rights helped me enormously in refining my arguments, and greatly inspired me to carry out this project to its fullest potential, even in the tough times. This thesis could not have been written either without the guidance of Dr King, whose comments and support were given with much generosity, which considerably helped me to shape my legal thoughts and writing. I am deeply indebted to them. I would also like to thank George Letsas, Virginia Mantouvalou, Maria Lee, and Fiona Smith, for their kind assistance in my early years as a PhD student in UCL Laws. Dr Letsas, for his interest in my project and precious advice when I started the PhD programme in UCL Laws. Dr Mantouvalou, Professor Lee, and Dr Smith, for allowing me to attend and contribute to their modules in European Human Rights Law and Global Health Governance as a PhD student. Their teaching and research have become a source of inspiration. I would also like to thank Professor Jonathan Montgomery, for his sharp insight and invaluable experience in healthcare law. During the final year of my PhD, I started working in Southampton Law School and I could not write this page of acknowledgments without expressing my deep gratitude to several colleagues. Adrian, John and Matthew, for their invaluable support; and Harry, Marta, Natasha, and Paul, for their presence. Many thanks should also be expressed to the four members of the UN Committee on Economic, Social and Cultural Rights who shared their views and opinions on the monitoring of the International Covenant on Economic, Social and Cultural Rights. Their time and insight was determinant in writing this thesis. Many thanks also to Maya, who greatly assisted my venue to Geneva and the organisation of these interviews. v Numerous pages in this thesis owe to the precious feedback provided by members of the network ESRAN-UKI, as several chapters became source of discussion in our workshops. Thanks to all its members, and in particular thanks to Professor Aoife Nolan for her advice and friendship. I would also like to thank the vibrant research community in UCL Laws. Academics, PhD fellows, as well as attendants and participants to the PhD WPF forum that Ilias and I created in 2014, paved the way for fascinating debates and broadened my horizons on legal scholarship. More particularly, the friendship of Carlos, Carrie, Ilias, Joe, Larissa, Noam, and Putri, has been and remains a source of mutual support at all times. Special thanks should be expressed to my native friends Conor, Deirdre, Edel, and Joe, who proofread this thesis. A tedious task that they had the extreme kindness to perform. I am also grateful to my friend Gabriella, for so generously giving her time translating this research into an artistic piece. Mathilde and Tiphaine should also be thanked, for they have and will always be very dear friends, in the best and the worst of times. I am forever indebted to my parents Laure and Philippe, who have been an endless source of love and support during this programme, and to my sister Cécile. They are my three guardian angels. Finally, not a single page of this thesis could have been written without the unconditional support of my partner Gearóid. His love, kindness, patience and humour were jewels through the tears and joys brought by this project. I will never be able to thank him enough. vi List of abbreviations AAAQ Availability, Accessibility, Acceptability, and Quality of healthcare African Charter African Charter on Human and Peoples’ Rights African Commission African Commission on Human and Peoples’ Rights CoE Council of Europe CPR Civil and Political Rights ESC European Social Charter ESCR Economic, Social and Cultural Rights European Committee European Committee of Social Rights FGM Female Genital Mutilation GC14 UN General Comment 14 ICESCR International Covenant on Economic, Social and Cultural Rights ICMW International Convention on the Protection of the Rights of All Migrant