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The Missing Global Right to Health
Published online by Cambridge University Press: 24 March 2023
Extract
The World Health Organization's (WHO) Constitution affirms, in its preamble, a fundamental and non-discriminatory right to health and health care. In doing so, it echoes a number of widely ratified treaties and other international legal instruments with a strong claim to having the status of customary international law, including the International Convention on the Elimination of All Forms of Racial Discrimination, the International Covenant on Economic, Social and Cultural Rights (ICESCR), the Convention on the Elimination of All Forms of Discrimination Against Women, the Universal Declaration of Human Rights, the Convention on the Rights of the Child, the ILO Convention on Indigenous and Tribal peoples in Independent Countries, and the Standard Minimum Rules for the Treatment of Prisoners. Most recently, the Institut de Droit affirmed that same fundamental right in Article 4 of its September 2021 Resolution on Epidemics, Pandemics, and International Law.
- Type
- The New State of Emergency: Individuals and International Law
- Information
- Copyright
- Copyright © The Author(s), 2023. Published by Cambridge University Press on behalf of The American Society of International Law
Footnotes
This panel was convened at 2:00 p.m. on Wednesday, April 6, 2022 by its moderator, Atsuko Kanehara of Sophia University, who introduced the speakers: José E. Alvarez of NYU School of Law; Kentaro Nishimoto of Tohoku University; Anita Ramasastry of the University of Washington School of Law; and Tina Stavrinaki of the University of Cyprus Department of Law.
References
1 See particularly, CESCR General Comment No. 14, The Right to the Highest Attainable Standard of Health (Art. 12), Aug. 11, 2000, E/C.12/2000.4.
2 Institut de Droit, Resolution on Epidemics, Pandemics and International Law, On-Line Session, Sept. 4, 2012.
3 See, e.g., José E. Alvarez, The Case for Reparations for the Color of COVID, 7 UCI J. Int'l, Transnat'l & Comp. L. 7 (2022).
4 See id., Annex A (written by Daniel Rosenberg).
5 See, e.g., David E. Pozen & Kim Lane Scheppele, Executive Underreach, in Pandemics and Otherwise, 114 AJIL 608 (2020).
6 See, e.g., Olivier De Shutter et al., Commentary to the Maastricht Principles on Extraterritorial Obligations of States in the Area of Economic, Social and Cultural Rights, 34 Hum. Rts. Q. 1084 (2012).
7 See, e.g., John Tobin, The Right to Health in International Law (2011). For a particular example of an attempt at judicial enforcement of the right to health, see Cuscul Piraval v. Guatemala (Inter-Am. Ct. Hum. Rts. Aug. 23, 2018).
8 Compare Philip Alston, The World Bank as a Human Rights-Free Zone, in Doing Peace the Rights Way: Essays in International Law and Relations in Honour of Louise Arbour (Fannie Lafontaine & François Larocque eds., 2019).
9 GA Res. 71/133, Responsibility of States for International Wrongful Acts (Dec. 19, 2016); GA Res. 66/100, Responsibility of International Organizations ( Dec. 9, 2011); see also Institut de Droit Resolution, supra note 2, Art. 15.
10 Eugene T. Richardson et al., Reparations for Black American Descendants of Persons Enslaved in the U.S. and Their Potential Impact on SARS-CoV-2 Transmission, 276 Soc. Sci. & Med. 113741 (2021), at https://www.sciencedirect.com/science/article/pii/S0277953621000733.
11 See, e.g., Resolution of the NYC Board of Health Declaring Racism a Public Health Crisis (adopted Oct. 18, 2021) (recommending that, given the documented racial inequities in health both before and after the current pandemic and the structural racism underpinning them, the NYC Health Department “participate in a truth and reconciliation process with the communities harmed by these actions”).