Codifying, and then implementing, an international right to health, health care, or protection is beset with serious roadblocks--foremost among them being contentious issues of indeterminacy, justiciability, and progressive realization.
Although advanced--and to some degree recognized under the rubric of a social or cultural entitlement within the law of human rights and, more particularly, the U.S. Declaration on Human Rights, together with International Covenant on Economic, Social and Cultural Rights (ICESCR), the International Covenant on Civil and Political Rights, the European Convention on Human Rights, and presently UNESCO's Draft Declaration on Universal Norms on Bioethics--attainment of such a universal right to health remains at best dubious.
The central impediment to the recognition of such a right is determining the extent to which a sustained level of economic stability must be charted before a state can be seen as either recognizing or enforcing a right to health of any kind and at any level of magnitude. Indeed, under the ICESCR, realization of economic social and cultural rights is to be effected only under a standard of progressivity. In other words, so long a states move "progressively" toward the realization of these rights, no actionable violations will be sustained. This, then, results in a flawed enforcement mechanism which allows any state signatory to this foundational covenant to pace enforcement of the rights under the ICESCR according to national standards of political will and differing levels of economic development and sustainability. Economic self-interest--not transnational principles and lofty aspirational goals--will determine ultimately, the extent to which health care protections are recognized as a integral part of social, cultural, political, or human rights.
TABLE OF CONTENTS I. INTRODUCTION AND HISTORICAL OVERVIEW II. SEEKING A CONSENSUS III. APPLYING INTERNATIONAL LAW A. Issues of Justiciability and Indeterminancy B. Non-Treaty Bases for Implementing Human Rights
Limits of Practical Applicability IV. SPECIFIC PROTECTIONS FOR HUMAN RIGHTS IN THE AGE OF BIOTECHNOLOGY A. The UNESCO Declaration B. A New Bioethics Instrument C.
The Draft Declaration D. The Scope of Human Dignity V.
THE RIGHT TO HEALTH, HEALTH CARE, OR HEALTH PROTECTION
Definitional Uncertainties B. Shaping A Right To Health Care C. The ESCR Comment VI. INSURMOUNTABLE DIFFICULTIES?
I. INTRODUCTION AND HISTORICAL OVERVIEW
While the modern law of human rights may have a short, formative period of no more than three centuries, the dignity of man and his common citizenship in society has existed for thousands of years. Indeed, almost from the very beginning of recorded humanity, the quest for a validation of human rights has not been so concerned with reason, but with an instinctive feeling of what is both right and good. (1) Thus, it has been said, "Human rights have always existed with the human being;" (2) such is the concept of human dignity. (3)
Under one interpretation, human rights are seen as "non-positivistic, principled, legal limits to what states, state actors, and state agents can do to their citizens." (4) As such, human rights impose no obligations on states themselves; rather, they impose limits on state action. (5) This U.S. view is drawn from the philosophy of the Bill of Rights and rooted in a neo-Lockean conception of the rule of law as a "commitment to a determinate set of legal rules." (6) In the international human rights community, however, a contrary view is taken--a view which holds to the notion that these rights either obligate state action under certain circumstances or, alternatively, obligate restraint by the state. (7)
Although a concrete notion of human rights appears absent from the Greek and Roman legal systems as well as the Chinese and other ancient civilizations, (8) certain claims to parental authorship have, over time, been tied to the Magna Carta of 1215, the Bill of Rights of 1689, the American Declaration of Independence in 1776, and the French Declaration of the Rights of Man and of the Citizen of 1789. (9) Yet, from the standpoint of historical accuracy, the French Declaration is seen correctly as the first document of its character to reference contemporary social, economic, and cultural rights styled originally as the rights to education, work, property ownership, and social protection. (10)
Although viewed as a type of generalized philosophical manifesto for the western world, the French Declaration was not embraced by subsequent European constitutions. (11) Indeed, these new constitutions were seen not only as less pragmatic than the French Declaration, but the new European constitutions also were prone to deemphasize "the philosophy of inalienable rights." (12) Rights were, thus, constitutional in origin. In the United States, however, rights were held not to be societal "gift[s]," but natural or inherent. (13)
The European constitutions of the nineteenth century were the frameworks or mechanisms for declaring rights to be constitutionally protected within legal boundaries. (14) Thus, it was solely within the legislative power where fundamental rights were not only declared but limited. (15) Latin American constitutionalism de-emphasized the "inalienability" of rights and, instead, during the nineteenth and twentieth centuries, chose to reference only those laws established by state authorities. (16)
In attempting to distinguish human rights from fundamental constitutional rights, socialist jurisprudence sought to ignore any inherent or natural rights theories and treated them as but philosophical rights; still, socialist jurisprudence recognized the constitutionally created rights as political in origin. (17) Even though constitutions drafted during the post-socialist period failed to follow the socialist concept of granted rights, there remained a dilemma: how to develop a "middle-ground approach" that would validate the idea that "a consensus reached by the people at the constitution's adoption is the result of their recognition of some commonly accepted values." (18) It was all too apparent to those drafting new constitutions that securing fundamental recognition of a selection of core rights was not guaranteed by a designation of these rights as "natural." (19) Indeed, throughout the subsequent history of human rights, cultural relavitism has been a dominant force with which to reckon, for the values of some people are not always capable of being judged by the norms shared by others. (20)
Even with the vagueness and imprecision that characterizes contemporary human rights, there is a trend toward the "internationalization of human rights movements." (21) Yet, such a trend by no means can be seen as an integration of internationalized human rights with international human rights movements. Rather, it must be accepted as but a "toleration for human rights monitoring by governmental and non-governmental organizations and accession to the most important human rights treaties." (22)
SEEKING A CONSENSUS
The need for a modern consensus on the universality of human rights, their international declaration, recognition, and protection, arose as a consequence of the ravages of World War II. The Axis Powers' savage trampling of human rights, the holocausts of the gas chambers of Auschwitz and Dachau, and the use of the atom bomb on Hiroshima galvanized an international response to universalize a legal process for protecting human rights: the United Nations' adoption in 1948 of the Universal Declaration of Human Rights. (23) While the 1945 Charter of the United Nations re-affirmed "faith in fundamental human rights, in the dignity and worth of the human person, in the equal rights of men and women," it was rather vague in encouraging respect for human rights. (24) This deficiency was corrected on December 10, 1948, when the U.N. General Assembly adopted the Universal Declaration and, at least on paper, established the "universalization of basic human rights." (25)
The Organization of American States' action, also in 1948, in issuing the American Declaration of The Rights and Duties of Man, (26) complemented the Universal Declaration. Together, both documents became the bulwark for recognizing "internationally" human rights and fundamental freedoms. They are also seen as the source for other conventions which further defined and elaborated the rights stated originally within these two instruments--the most significant being the 1966 International Covenant on Economic, Social and Cultural Rights (ICESCR) (27) and the 1966 International Covenant on Civil and Political Rights (ICCPR). (28)
Article 1 of the 1945 United Nations Charter affirms the dignity and worth of the human person as the cornerstone of human rights. This precept is buttressed by the Universal Declaration in Article 22 where economic, social, and cultural rights are recognized as "indispensable for [a person's] dignity and the free development of his personality." (29) Thus, autonomy--and its exercise--is central to the recognition and implementation of the very goal of maintaining human rights. Indeed, "the free and full development" (30) of personality in the community can never be achieved, as Article 29 of the Universal Declaration sets out, unless one is seen as an autonomous individual.
Interestingly, while the Universal Declaration has no force as a binding treaty, it has nonetheless encouraged "a culture of human rights" and thereby served as a framework for expanding and recreating the very boundaries of human rights by means of a "vast array of nongovernmental organizations and civil-society bodies committed, in very practical ways, to upholding universal rights at home and abroad." (31)
The purpose of this essay is to explore the extent to which a universal right to health, health care, or health protection is being shaped and, to some degree and level...