1. Evolution of the Right to Healthby Thomas A. Gionis, MD JD MBA MHA FICS FRCS United States Fulbright Scholar in Law Chairman, American Board of Healthcare Law and Medicine Adjunct Professor of Law, St. Thomas University School of Law Evolution of the Right to Health

2. The International Bill of Human Rights Universal Declaration of Human Rights International Covenant on Economic, Social and Cultural Rights International Covenant on Civil and Political Rights Optional Protocol to the International Covenant on Civil and Political Rights Second Optional Protocol to the International Covenant on Civil and Political Rights, aiming at the abolition of the death penalty Evolution of the Right to Health

3. The International Bill of Human Rights Universal Declaration of Human Rights International Covenant on Economic, Social and Cultural Rights International Covenant on Civil and Political Rights Optional Protocol to the International Covenant on Civil and Political Rights Second Optional Protocol to the International Covenant on Civil and Political Rights, aiming at the abolition of the death penalty WHO World Health Organization Evolution of the Right to Health

4. International Bill of Human Rights WHO Social goods Health services Social goodsGreeks: Health one of the Highest Goods (Greeks – physical) Individual Well-being Importance of HealthIndividual Well-being Individual DignityIndividual Dignity International SecurityInternational Security International Human Right ?International Human Right ? Evolution of the Right to Health

5. World – International - Health: Scope of the Problem. To what extent can sovereign States be held responsible for health threats? To what extent can sovereign States be held responsible for health threats? To what extent is ones lack of health unjust? To what extent is ones lack of health unjust? To what extent can States be held accountable for ones lack of health, disease or disability? To what extent can States be held accountable for ones lack of health, disease or disability? Evolution of the Right to Health

6. World – International - Health: Scope of the Problem. What is the justiciability of this right to health? What is the justiciability of this right to health? Evolution of the Right to Health

7. World – International - Health: Scope of the Problem. What is the justiciability of this right to health? What is the justiciability of this right to health? What precisely do individuals have a right to, either under an expressed or implicit right to health under international law ? Evolution of the Right to Health

8. Justiciability International Right to Health Problem regarding justiciability=Meaning of the term Health. (1).Highly subjective (2).Individualistic; varies from person to person (3).Variability of measures of objective standards (4).Variability in how subjectively experienced (5).Objectively may depend on geographic conditions (State variations) (6).Subjectively may depend on geographic conditions (State variations) (7).Variable constituencies Evolution of the Right to Health

9. Justiciability International Right to Health (7).Variable constituencies Does it include just physical health? Aristotle: In the case of the body, excellence is health in the form of making use of the body without illness…. for many are healthy in the way said of Herodicus, whom no one would envy for his health since [to keep it] he had to refrain from all, or nearly all, human enjoyments. Aristotle, On Rhetoric, New York/Oxford, 1991 (G.A. Kennedy Transaltion). Evolution of the Right to Health

10. Justiciability International Right to Health Aristotle Health – aristocratic, not particularly democratic Aimed at improving the health of a few [aristocratic] individuals, not an entire society as in the promotion of public health. Later changed as Greco-Roman empire influences. Evolution of the Right to Health

11. Justiciability International Right to Health Is the term of International Right to Health too vague to be justiciable? Is the term of International Right to Health too broad to be justiciable? Professor Leonard Kass, Regarding the End of Medicine and the Pursuit and Health, 40 The Public Interest 39 (1975): Does the Right to Health include areas beyond the scope of Health? Evolution of the Right to Health

12. JusticiabilityInternational Right to Health Is an International Right to Health related to – or does it include – a component of social-well being? Does the existence of an International Right to Health Does depend – vary – upon the development state of a sovereign? Evolution of the Right to Health

13. JusticiabilityInternational Right to Health Right to Health Right to Health Care Right to Health Protection Right to Health Security Right to Health Maintenance Right to Adequate Standard of Health Evolution of the Right to Health

14. World – International - Health: Scope of the Problem. What is the justiciability of this right to health? What is the justiciability of this right to health? What precisely do individuals have a right to, either under an expressed or implicit right to health under international law ? Evolution of the Right to Health

15. JusticiabilityInternational Right to Health Underlying Preconditions – Underpinnings Does an International Right to Health include: Prevention, treatment and control of epidemic, endemic and other diseases Reduction Stillbirth-Rate Reduction Maternal death rate Reduction of Infant mortality Evolution of the Right to Health

16. JusticiabilityInternational Right to Health Underlying Preconditions – Underpinnings Does an International Right to Health include: Reduction of Malnutrition Child development Environmental Health & Hygiene Occupational Diseases: Labor safety measures, industrial accidents, occupational diseases Evolution of the Right to Health

17. JusticiabilityInternational Right to Health Underlying Preconditions – Underpinnings Does an International Right to Health include: Family Planning Services Harmful Traditional Practices Medical Experimentation Health of children – Immunization Protection of Physical integrity Evolution of the Right to Health

18. JusticiabilityInternational Right to Health Underlying Preconditions – Underpinnings Does an International Right to Health include: Right of public health Medical care – free basic medical care / emergency medical care Mental health Adequate Sanitation Womens Health Evolution of the Right to Health

19. JusticiabilityInternational Right to Health Underlying Preconditions – Underpinnings Does an International Right to Health include: Post-natal care / Abortion / HIV-AIDS Preventive child care programs Proper nutrition and maternal care programs Reduction of incidence of violence against women Sexual violence Evolution of the Right to Health

20. JusticiabilityInternational Right to Health Underlying Preconditions – Underpinnings Does an International Right to Health include: Maltreatment and rape of women Abortion Physical accessibility v. Economic accessibility Control of food and pharmaceutical products Assistance to mentally defective children Evolution of the Right to Health

21. JusticiabilityInternational Right to Health Underlying Preconditions – Underpinnings Does an International Right to Health include: Re-education of maladjusted children; Satisfaction of the health needs of the highest risk groups Protection against radioactive radiation transportation and dumping of nuclear waste. Moral and Social Well-Being Evolution of the Right to Health

22. JusticiabilityInternational Right to Health Underlying Preconditions – Underpinnings Does an International Right to Health include: Social security and social services Access of health facilities at work Health insurance, and maternity protection Nutrition, housing, sanitation, health education Access to basic public health services Evolution of the Right to Health

23. JusticiabilityInternational Right to Health Underlying Preconditions – Underpinnings Does an International Right to Health include: Prison Health Facilities for the treatment of illness and rehabilitation of health Adequate nutritious foods and clean drinking-water Evolution of the Right to Health

24. Economic, Social, and Cultural Human Rights v. Civil and Political Rights International Covenant on Economic, Social and Cultural Rights v. International Covenant on Civil and Political Rights Evolution of the Right to Health

25. Economic, Social, and Cultural Human Rights v. Civil and Political Rights DistinguishableInterdependentInterrelated Equal importance Evolution of the Right to Health

26. Civil and Political Rights Invoked in national judicial proceedings Invoked in national judicial proceedings Federal law / statutory law / common law Federal law / statutory law / common law Recognized national procedural remedies for complaints / protections Recognized national procedural remedies for complaints / protections Recognized international procedural remedies for complaints / protections Recognized international procedural remedies for complaints / protections justiciablejusticiable Evolution of the Right to Health

27. Economic, Social, and Cultural Human Rights Notwithstanding their acknowledgement in constitutions / treaties, often found to be non-justiciable at domestic level. Notwithstanding their acknowledgement in constitutions / treaties, often found to be non-justiciable at domestic level. Often, no recognized international procedural remedies for complaints. Often, no recognized international procedural remedies for complaints. Reason for disparate treatment: Reason for disparate treatment: Ill-defined rights Characterized by vagueness Contain a programmatic character (require positive, active, progressive measures by States for implementation) Evolution of the Right to Health

28. Economic, Social, and Cultural Human Rights Right to Food Right to Food Right to Education Right to Education Right to Adequate Housing Right to Adequate Housing Right to Health Right to Health Evolution of the Right to Health

29. Start of the Evolution of the Right to Health: the Publics Health Health, as a human right, has its foundation within the public health movement. Health, as a human right, has its foundation within the public health movement. States recognition / obligation for necessity of: States recognition / obligation for necessity of:SanitationHygiene Water supply construction Evolution of the Right to Health

30. Start of the Evolution of the Right to Health: the Publics Health Pre-19th Century Pre-19th Century Draining systems of Egypt, India, the Cretan-Mycenaean culture, Troy, Inca society Draining systems of Egypt, India, the Cretan-Mycenaean culture, Troy, Inca society Middle ages of Europe (disease prevention/sanitary protections of the community) Middle ages of Europe (disease prevention/sanitary protections of the community) Evolution of the Right to Health