Toward a Theory of a Right to Health: Capability and Incompletely Theorized Agreements

Abstract

One would be hard pressed to find a more controversial or nebulous human right than the "right to health"-a right that stems primarily, although not exclusively, from Article 12 of the International Covenant on Economic, Social and Cultural Rights (ICESCR) and requires governments to recognize "the right of everyone to the highest attainable standard of physical and mental health." While activists, nongovernmental organizations, and scholars have made significant progress in promoting a human rights approach to health and the field of health and human rights more generally, the question of a philosophical and conceptual foundation-a theory-for the right to health has fallen through the cracks that emerge from an interdisciplinary intersection of medical ethics, international relations, international human rights law, health policy, health law, and public health law. International human rights law scholars working in public health and health policy have typically focused on government's binding legal obligations to promote and protect both public health and human rights. They have drawn on human rights to address public health issues, especially the HIV/AIDS pandemic. Although scholars in this field have, in the words of one academic, "developed a sophisticated understanding of civil and political rights," they "have failed systematically to examine the meaning and enforcement of social and economic rights." And while General Comment No. 14, issued by the UN Committee on Economic, Social, and Cultural Rights (CESCR), provides the most reliable report on the right to health, it too, by necessity and purpose, lacks a systematic philosophical grounding for the right to health. The few international relations scholars and practitioners who do focus on health issues have provided primarily three dominant frameworks for international health cooperation: national and security interests; domestic and global economic development; and international human rights. Human rights approaches have filled a "moral gap" in the international global health discourse left primarily by economic and geo-political governance frameworks for international health issues. But the human rights strategy has been only moderately effective, for example in efforts to control and mitigate the HIV/AIDS epidemic and to implement the constitution of the World Health Organization (WHO). Furthermore, international relations as an academic discipline has not focused on providing a theory-based in moral and political philosophy - of a right to health.