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Interpreting the International Right to Health in a Human Rights-Based Approach to Health

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Interpreting the International Right to Health in a Human Rights-Based Approach to Health HHr Health and Human Rights Journal Interpreting the International Right to Health inHHR_final_logo_alone.indd a 1 10/19/15 10:53 AM Human Rights-Based Approach to Health paul hunt Abstract This article tracks the shifting place of the international right to health, and human rights-based approaches to health, in the scholarly literature and United Nations (UN). From 1993 to 1994, the focus began to move from the right to health toward human rights-based approaches to health, including human rights guidance adopted by UN agencies in relation to specific health issues. There is a compelling case for a human rights-based approach to health, but it runs the risk of playing down the right to health, as evidenced by an examination of some UN human rights guidance. The right to health has important and distinctive qualities that are not provided by other rights—consequently, playing down the right to health can diminish rights-based approaches to health, as well as the right to health itself. Because general comments, the reports of UN Special Rapporteurs, and UN agencies’ guidance are exercises in interpretation, I discuss methods of legal interpretation. I suggest that the International Covenant on Economic, Social and Cultural Rights permits distinctive interpretative methods within the boundaries established by the Vienna Convention on the Law of Treaties. I call for the right to health to be placed explicitly at the center of a rights-based approach and interpreted in accordance with public international law and international human rights law. paul hunt is Professor at the Law Department and Human Rights Centre, University of Essex, United Kingdom. Please address correspondence to Paul Hunt, Law Department, University of Essex, Wivenhoe Park, Essex, United Kingdom, CO4 3SQ. Email: [email protected]. Competing interests: None declared. Copyright © 2016 Hunt. This is an open access article distributed under the terms of the Creative Commons Attribution Non- Commercial License (http://creativecommons.org/licenses/by-nc/3.0/), which permits unrestricted non-commercial use, distribution, and reproduction in any medium, provided the original author and source are credited. DECEMBER 2016 VOLUME 18 NUMBER 2 Health and Human Rights Journal 109 p. hunt / papers, 109-130 Introduction bear closely on contemporary discussions about health and human rights. First, what is the role of the Among the dynamics that have shaped the recent right to health in human rights-based approaches development of the international right to health to health? Second, since general comments, rappor- are a drive toward its “real-life” implementation teurs’ reports, and agencies’ guidance are exercises for the benefit of individuals, communities, and in legal interpretation, what is the legal methodol- populations, and a movement from short, general, ogy for the interpretation of the international right abstract, legal treaty provisions toward specific, to health? practical human rights guidance. These two trends Although there is not yet a universally agreed are closely interrelated. definition of a rights-based approach to health, a For example, the general comments of United good starting point is the account provided by the Nations (UN) human rights treaty bodies have World Health Organization (WHO) and Office of added flesh to the bare bones of human rights treaty the United Nations High Commissioner for Human provisions. Since 2002, UN Special Rapporteurs on Rights (OHCHR).4 This definition is considered the right to health have endeavored to apply the trea- by Flavia Bustreo, Paul Hunt, Sofia Gruskin, and ties and general comments to many themes, states, others in Women’s and Children’s Health: Evidence and other duty-bearers. When rapporteurs have of Impact of Human Rights.5 However, for the pur- encountered specific issues on which the existing poses of the present discussion, it is not necessary jurisprudence gives no or scant guidance, they have to favor one definition of a human rights-based offered their interpretations of the international right to health. UN agencies have adopted increas- approach to health. The important point here is ingly detailed guidance on how to operationalize that all these definitions encompass all relevant human rights, for example, in relation to HIV/AIDS, human rights, including the rights to life, informa- tuberculosis, maternal mortality, under-five mor- tion, privacy, participation, association, equality, tality, contraceptive information and services, and non-discrimination, and the prohibition of torture clinical management of female genital mutilation.1 and inhuman and degrading treatment. One of the This has required agencies to interpret and apply key aims of this article is to explore the place of the treaties, general comments, and other jurisprudence, international right to health in human rights-based sometimes weighing the available evidence as part of approaches to health. their interpretative process. None of these initiatives However, it is important to emphasize that is above criticism but, at least, as John Harrington there is merit in applying a rights-based approach and Maria Stuttaford put it, a “beginning has been to health rather than confining the analytical and made” to provide treaty provisions with detailed operational “lens” to the right to health. Although normative and operational content.2 the right to health is extensive, it is narrower than a Although very welcome, these important de- human rights-based approach, and the wider “lens” velopments give rise to numerous complex issues. may help devise a more comprehensive and effec- Alicia Yamin and Rebecca Cantor identify some tive strategy. Deploying several human rights may of the formidable challenges, dilemmas, and con- strengthen the human rights case by, for example, tradictions generated by attempts to operationalize securing protection from a wider range of nation- human-rights based approaches to health. For ex- al and international laws and also by generating ample, human rights are understood “as universal, support from a broader coalition of groups and deontological principles”—yet, in operationalizing interests. Also, some duty-bearers still harbor ideo- them through rights-based approaches, “trade-offs logical or other objections to the right to health, and deeply contextualized political realities neces- and they may be quicker to accept the relevance of sarily enter the equation.”3 civil and political rights, such as the right to life. This article aims to supplement Yamin and Indeed, it might be possible to “smuggle” the right Cantor’s analysis by addressing two questions that to health into a rights-based approach without trig- 110 DECEMBER 2016 VOLUME 18 NUMBER 2 Health and Human Rights Journal p. hunt / papers, 109-130 gering ideological objections, although this article as “an erroneous conception of human rights that does not favor such a tactic. It is accepted that there is limited to a narrow sphere of civil and political will sometimes be advantages in adopting a human rights.”7 All of this points to the importance of legal rights-based approach rather than relying only on interpretive methodology: if the right to health has the right to health. distinctive features, their interpretation (i.e., estab- The problem identified and addressed in this lishing the contours and content of these distinctive article is that rights-based approaches to health, characteristics) becomes crucially important. however they are defined, run the risk of playing In this article, I trace the shifting place of the down, and sometimes obscuring, the central role of international right to health, and human rights- the international right to health. For example, when based approaches to health, in the scholarly literature I served as UN Special Rapporteur on the right to and United Nations. Second, I explore evidence health and, more recently, when I participated in that the international right to health is played down a statutory human rights inquiry into Northern within a rights-based approach to health. Third, I Ireland’s emergency health care, it was sometimes analyze the degree to which the international right suggested by those in authority that they were to health has qualities not possessed by other rights implicitly including the right to health in policy- that form part of a rights-based approach to health. making or a rights-based approach to health. This Because of the importance of these distinctive is problematic because, in such a situation, only qualities, I then explore legal methodology for the they know whether the right to health is present interpretation of the international right to health. and, if it is, how it is interpreted and applied. Such After critiquing the methodology that John Tobin arbitrariness is inconsistent with the raison d’être uses to interpret the international right to health, I of human rights. One never hears an argument for suggest that the “special character” of human rights a rights-based approach to fair trials. But a rights- treaties permits distinctive methods of treaty inter- based approach to fair trials which only implicitly pretation, while remaining within the interpretative includes the right to a fair trial is inconceivable. If boundaries established by the Vienna Convention there were a rights-based approach to fair trials, on the Law of Treaties. I argue that the interna- the explicit right to a fair trial would have to be at tional right to health, as part of the rights-based
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