19th Annual Conference on 'The Individual vs. the State': An Enforceable Right to Health? June 9, 2011

The right to health has been at the center of considerable academic and professional debate for long. While the International Covenant for Civil and Political Rights seems to have obtained universal acceptance and acclaim, the International Covenant on Economic, Social and Cultural Rights has been seen much less evident not only for political, but also for practical reasons. Whether the ‘right to the highest attainable standard of health’ (Article 12(1) of the ICESCR) has a minimum core, whether it guarantees access to the enjoyment of certain facilities, procedures or medication, and the extent to which progressive realization and resource availability as mentioned in Article 2(1) of the ICESCR should shape the scope of the right and of state obligations are key points of legitimate disagreement.

The debate on whether socio-economic rights, and the right to health among them, belong in an enforceable charter of rights got reignited some two decades ago when former Communist regimes – boasting freely accessible public health care systems – crumbled and their new, democratic constitutions were in the making. Cass Sunstein argued in 1995 at a conference in this series that the inclusion of socio-economic rights in a constitution when a country cannot afford to their implementation will undermine the legitimacy of the entire bill of rights and will thus endanger the legitimacy of the new democratic regime (Sunstein: “Against Positive Rights,” in Andras Sajo (ed.) Western Rights? Post-Communist Application (1996)). Sunstein subsequently changed his mind when seeing how the post-apartheid South African Constitutional Court handled claims seeking the enforcement of socio-economic rights in its early jurisprudence (Sunstein: Designing Democracy: What Do Constitutions Do (2002)).

The vividness the debate is also evidenced by Joseph Raz’s recent essay on “Human Rights in the Emerging World Order” in the launch issue of the journal Transnational Legal Theory (2010: 1, 31-47 at 45), where he argues that „it is the instrumental rather than the intrinsic value of health that is the foundation of the human right to health. That is so because, absent special relations, no one has a duty to secure for me or for any other person a feeling of physical well-being. But they may have such a duty to secure people the opportunity to have a fulfilling life. … The plain truth is that we should reject the highest attainable standard test if taken to refer to what is factually attainable.”

Disagreements and ambiguities are also traceable in constitutional jurisprudence on the right to health and its ancillaries on the domestic level. Courts of law are traditionally not particularly enthusiastic about the right to health when they are invited to make grave redistributive decisions under constitutional provisions guaranteeing the right to health. At the same time, claims about access to health care or for funding for medical procedures, once made on liberty or equality grounds were remarkably successful even under constitutions which do not provide for socio-economic rights. Also, courts do not shy away from taking decisions on health care and health insurance schemes with significant redistributive consequences on federalism or separation of powers grounds.

Conference participants are invited to revisit the justifications for the right to health, its philosophical and moral foundations. When engaging with the issue of enforceability we hope to address a broad spectrum of problems connected with the right to health, covering not only access to certain treatment and procedures for particular conditions such as HIV / AIDS, reproductive health issues, maternal and infant mortality, or the special needs and rights of minors, migrants or prisoners. In addition, participants will be inspired to explore the fringes of the right to health such the protection of health-related data, intellectual property rights, and structural or systemic impediments preventing access to health care. We hope to understand better the limits the medical model poses to rights claims in disability studies, and the promise of equality or dignity arguments for redefining the scope of the right to health. Being mindful of the limits of governmental action, we will seek to reflect on the impact right to health claims on private actors may they be health care providers, insurance or pharmaceutical companies. We hope that comparative analysis and an interdisciplinary approach, perspectives from scholars and practitioners will enable our conference participants to enrich the international debate with original ideas and novel insight.

Conference information provided by konferenciakalauz.hu

Official Website: https://legal.ceu.hu/Individual_vs_State