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The Vital Role of Law International Development Law Organization Advancing the right to health: The vital role of law Advancing the right to health: the vital role of law WHO Library Cataloguing-in-Publication Data: Advancing the right to health: the vital role of law. 1.Human Rights. 2.Public Health – legislation and jurisprudence. 3.Health Policy. I.World Health Organization. ISBN 978 92 4 151138 4 (NLM classification: WA 32) © World Health Organization 2017 Some rights reserved. This work is available under the Creative Commons Attribution-NonCommercial-ShareAlike 3.0 IGO licence (CC BY-NC-SA 3.0 IGO; https://creativecommons.org/licenses/by-nc-sa/3.0/igo). Under the terms of this licence, you may copy, redistribute and adapt the work for non-commercial purposes, provided the work is appropriately cited, as indicated below. In any use of this work, there should be no suggestion that WHO endorses any specific organization, products or services. The use of the WHO logo is not permitted. If you adapt the work, then you must license your work under the same or equivalent Creative Commons licence. If you create a translation of this work, you should add the following disclaimer along with the suggested citation: “This translation was not created by the World Health Organization (WHO). WHO is not responsible for the content or accuracy of this translation. The original English edition shall be the binding and authentic edition”. Any mediation relating to disputes arising under the licence shall be conducted in accordance with the mediation rules of the World Intellectual Property Organization (http://www.wipo.int/amc/en/mediation/rules). Suggested citation. Advancing the right to health: the vital role of law. Geneva: World Health Organization; 2017 Licence: CC BY-NC-SA 3.0 IGO. Cataloguing-in-Publication (CIP) data. CIP data are available at http://apps.who.int/iris. Sales, rights and licensing. To purchase WHO publications, see http://apps.who.int/bookorders. To submit requests for commercial use and queries on rights and licensing, see http://www.who.int/about/licensing. Third-party materials. If you wish to reuse material from this work that is attributed to a third party, such as tables, figures or images, it is your responsibility to determine whether permission is needed for that reuse and to obtain permission from the copyright holder. The risk of claims resulting from infringement of any third-party-owned component in the work rests solely with the user. General disclaimers. The designations employed and the presentation of the material in this publication do not imply the expression of any opinion whatsoever on the part of WHO concerning the legal status of any country, territory, city or area or of its authorities, or concerning the delimitation of its frontiers or boundaries. Dotted and dashed lines on maps represent approximate border lines for which there may not yet be full agreement. The mention of specific companies or of certain manufacturers’ products does not imply that they are endorsed or recommended by WHO in preference to others of a similar nature that are not mentioned. Errors and omissions excepted, the names of proprietary products are distinguished by initial capital letters. The views expressed in this report do not imply the expression of any opinion on the part of the World Health Organization (WHO), the International Development Law Organization (IDLO), the O’Neill Institute for National and Global Health Law, Georgetown University, Washington D.C., or Sydney Law School, University of Sydney, Australia. All reasonable precautions have been taken to verify the information contained in this report. However, the material published is being distributed without warranty of any kind, either expressed or implied. The responsibility for the use and interpretation of the material presented lies with the reader. In no event shall the WHO, IDLO, the O’Neill Institute or the University of Sydney be liable for any consequences arising from the use of material in this report. ii Contents Boxes, tables and figures ................................................................................................................. viii Preface ............................................................................................................................................. xiii Acknowledgements ......................................................................................................................... xviii Introduction ........................................................................................................................................ 1 Purpose and scope of this report .................................................................................................... 1 Who should read this report? ......................................................................................................... 2 The structure of this report ............................................................................................................ 4 PART 1 ADVANCING THE RIGHT TO HEALTH THROUGH LAW REFORM ................................................. 5 Chapter 1: Public health regulation and the right to health .............................................................. 6 1.1 Justifications for public health regulation ........................................................................... 6 (a) Obligations of immediate effect under the right to health ................................................ 9 (b) Core obligations arising under the right to health ........................................................... 10 (c) The right to health and health systems ............................................................................ 11 1.2 Concepts and principles for guiding and evaluating law reform efforts.......................... 12 (a) The goal of universal health coverage.............................................................................. 13 (b) Availability ........................................................................................................................ 15 (c) Accessibility ...................................................................................................................... 17 Non-discrimination ............................................................................................................... 18 Physical accessibility ............................................................................................................. 18 Economic accessibility (affordability) ................................................................................... 19 Information accessibility ....................................................................................................... 20 (d) Acceptability ..................................................................................................................... 20 (e) Quality .............................................................................................................................. 20 PART 2 THE PROCESS OF PUBLIC HEALTH LAW REFORM ..................................................................... 24 Chapter 2: The context of public health law reform activities ........................................................ 27 2.1 What are public health laws? ............................................................................................ 27 2.2 Conceptualizing the process of health legislation review ................................................ 28 (a) Impetus for a review ........................................................................................................ 28 (b) Scope of the review process ............................................................................................. 29 (c) Implementing recommendations ..................................................................................... 29 2.3 Why legislate? ................................................................................................................... 30 Chapter 3: Assessing the case for the reform of public health law ................................................. 35 iii 3.1 Common reasons for reviewing and updating public health laws ................................... 36 (a) The problem of outdated laws ......................................................................................... 36 (b) The problem of multiple layers of law ............................................................................. 37 (c) The problem of inconsistency .......................................................................................... 38 3.2 Identifying priorities for public health law reform ........................................................... 39 (a) Communicable diseases ................................................................................................... 40 Infectious diseases with pandemic potential........................................................................ 40 HIV/AIDS ................................................................................................................................ 41 Tuberculosis .......................................................................................................................... 42 (b) Noncommunicable diseases ............................................................................................. 43 Obesity .................................................................................................................................
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