Ecenur Demir – LLM Graduate, University of Milan
The right to health is one of the main rights that are placed in international human rights treaties, however its formulation under international law is comparatively new.[1] As Marks puts it, “the right has given a formal recognition in law and policy that people are entitled to and the State must ensure that they have an opportunity to lead a healthy life.”[2] As of the adoption of the UN Convention on the Rights of the Child (hereinafter the CRC)[3] in which the most radical formulation of the rights of the child was given, the Committee on the Rights of the Child (hereinafter the CRC Committee) reflected that the rights enshrined in the CRC are indivisible and interrelated whilst considering the different cultural, social, economic and political realities of individual States. Hence, the CRC Committee interprets the right to health as “not only important in and of itself but also the realisation of the right is indispensable for the enjoyment of all the other rights in the Convention.”[4]
Since it is considered a socio-economic right, its effectiveness and availability definitely depends on the allocated resources within a State. However, there are such definitions of the right to health under international law that imposes positive obligations binding for the States. The right to health has been defined in several international human rights instruments. For instance, WHO Constitution,[5] the Universal Declaration of Human Rights,[6] the Declaration of Alma-Ata,[7] and the ICESCR.[8] Nonetheless, the most elaborated definition with respect to children’s rights was given by the CRC under Article 24 which obligates States Parties to ensure that no child is deprived of this right and to take appropriate measures under Article 24(2) which as follows:
(a) To diminish infant and child mortality;
(b) To ensure the provision of necessary medical assistance and health care to all children with emphasis on the development of primary health care;
(c) To combat disease and malnutrition, including within the framework of primary health care, through, inter alia, the application of readily available technology and through the provision of adequate nutritious foods and clean drinking-water, taking into consideration the dangers and risks of environmental pollution;
(d) To ensure appropriate pre-natal and post-natal health care for mothers;
(e) To ensure that all segments of society, in particular parents and children, are informed, have access to education and are supported in the use of basic knowledge of child health and nutrition, the advantages of breastfeeding, hygiene and environmental sanitation and the prevention of accidents;
(f) To develop preventive health care, guidance for parents and family planning education and services.
Article 24 also necessitates States Parties to take all effective and appropriate measures to abolish traditional practices prejudicial to the health of children and encourages international co-operation with a view to achieving progressively the full realisation of the right.[9] Further formulations on the right to health also can be found in other human rights treaties.[10]
However, in order to fully understand, it must be analysed that what the scope of the right to health is. The following questions can be asked whether every child has the right to have good health, or a State has the capability of providing every child the right to be healthy. In this context, the Committee on Economic, Social and Cultural Rights stated, in the General Comment No. 14, that “the right to health is not to be understood as a right to be healthy” because “good health cannot be ensured by a State, nor can States provide protection against every possible cause of human ill health.”[11] The CRC Committee, on its General Comment No. 15, takes a such methodology which explains children’s right to health as “an inclusive right, extending not only to timely and appropriate prevention, health promotion, curative, rehabilitative, and palliative services, but also to a right to grow and develop to their full potential and live in conditions that enable them to attain the highest standard of health […]”[12] It further clarifies the notion of the highest attainable standard of health such that “taking into account both the child’s biological, social, cultural and economic preconditions and the State’s available resources.”[13] Along with appropriate health care, the underlying determinants of health are also vital for the enjoyment of the right to health. The underlying determinants are defined such as access to safe and potable water and adequate sanitation, an adequate supply of safe food, nutrition, and housing, healthy occupational and environmental conditions, and access to health-related education and information, including on sexual and reproductive health.[14]
Such a holistic approach evidently has several fundamental principles. Firstly, the principle of non-discrimination is imposed on the right in order to safeguard every child’s health rights against all forms of discrimination and to ensure gender equality. The second principle is placing the child’s best interest at the heart of the health-related decisions, and the third principle is related to children’s participation rights; thus the child must be given the chance to express his or her views, and those views should be taken into consideration bearing in mind the evolving capacities of children. Alongside these principles, the interrelated and essential elements of the right to health must be considered; “Availability, Accessibility, Acceptability, Quality” (hereinafter the AAAQ Framework).[15] Within this framework, as the CRC Committee provided in relation to the right to health of children, availability stands for the obligation of States ensuring the functioning of children’s health facilities, goods and services, programmes to be available in sufficient quantity. Accessibility has four dimensions; health facilities, goods and services, and underlying determinants of health have to be accessible to all children, pregnant women and mothers without discrimination (non-discrimination); must be within safe physical reach for all children, pregnant women and mothers (physical accessibility); must be affordable for all (economic accessibility); and also includes the right to information on health promotion, health status and treatment options and they should be provided to children and their caregivers (information accessibility). Acceptability is defined as “the obligation to design and implement all health-related facilities, goods and services in a way that takes full account of and is respectful of medical ethics as well as children’s needs, expectations, cultures, views, and languages, paying special attention to certain groups, where necessary.” Finally, the element of quality requires that health-related facilities, goods and services should be scientifically and medically appropriate and of good quality, and child-specific (when necessary).[16] Furthermore, the CRC Committee also adopted other General Comments on adolescent health and development,[17]and on the rights of children in the context of HIV/AIDS.[18]
The progressive realisation in the context of health is unquestionably necessary for children. However, what is the true meaning of taking appropriate measures in order to fully realise the right to health? Firstly, the proper allocation of resources is a must. As has recognised by the CRC Committee “most mortality, morbidity, and disabilities among children could be prevented if there were political commitment and sufficient allocation of resources directed towards the application of available knowledge and technologies for prevention, treatment, and care.”[19] It is obvious that Article 4 of the CRC obligates States Parties to “undertake all necessary measures to the maximum extent of their available resources.”[20] In this context, the CRC Committee requires States “to undertake targeted measures to move as expeditiously and effectively as possible towards the full realisation of children’s right to health”, even though their available resources are evidently inadequate.[21]
Therefore, all things considered in the context of health, ensuring this right requires considerable efforts in order to ensure healthy children. In doing so, children must be considered as rights-holders and prospective agents. As Tobin put it, “health is not a luxury or privilege subject to the discretion of others but rather an entitlement which must be satisfied by a state in light of its available resources.”[22] Therefore, States Parties must uphold the CRC’s principles and must guarantee the right to health without discrimination on any ground. Children should see the care, sensitivity, fairness, and respect in the health facilities; and they should participate in the decision-making relating to the matters that concern their health. Adult-centric methods of management will not always be appropriate for children.[23]Further, all the national health systems should take the approach that respects children’s evolving capacities. In this regard, everyone in the health industry must be informed on the human rights of children and their specific rights, and the provisions on child-friendly health care.
[1] Stephen P. Marks, “The Emergence and Scope of the Human Right to Health” in Advancing the Human Right to Health, eds. José M. Zuniga, Stephen P. Marks, and Lawrence O. Gostin (Oxford: Oxford University Press, 2013).
[2] Ibid., p. 3.
[3] Convention on the Rights of the Child, New York, 20 November 1989, United Nations Treaty Series, vol. 1577, No. 27531, p. 3 available from https://treaties.un.org/Pages/showDetails.aspx?objid=08000002800007fe&clang=_en.
[4] UN Committee on the Rights of the Child, General comment No. 15: The right of the child to the enjoyment of the highest attainable standard of health (Adopted by the Committee at its sixty-second session, 17 April 2013, CRC/C/GC/15).
[5] Constitution of the World Health Organization, signed at the International Health Conference, New York, 22 July 1946. WHO defines the right is one of the fundamental rights of every human being based on the principle of non-discrimination, and with respect to the child, it declares that “healthy development of the child is of basic importance; the ability to live harmoniously in a changing total environment is essential to such development.”
[6] Universal Declaration of Human Rights, Art. 25. It defines the right that “everyone has the right to a standard of living adequate for the health and well-being of himself and of his family […]” while adding that motherhood and childhood are entitled to special care and assistance.
[7] Declaration of Alma-Ata, International Conference on Primary Health Care, Alma-Ata, 6-12 September 1978. Declaration defines the right that “the attainment of the highest possible level of health is a most important world-wide social goal whose realization requires the action of many other social and economic sectors in addition to the health sector” and also strongly affirmed that all States should necessarily have the political will to mobilise their resources and to use also external resources.
[8] International Covenant on Economic, Social and Cultural Rights, New York, 16 December 1966, United Nations Treaty Series, vol. 993, No. 14531, p. 3. ICESCR recognises this right adding the terms of physical and mental health and obliged States Parties to take steps in relation to the provision for the reduction of the stillbirth-rate and of infant mortality and for the healthy development of the child; the improvement of all aspects of environmental and industrial hygiene; the prevention, treatment, and control of epidemic, endemic, occupational and other diseases; the creation of conditions which would assure to all medical service and medical attention in the event of sickness.
[9] Convention on the Rights of the Child, Art. 24.
[10] These are mainly formulated in the International Convention on the Elimination of All Forms of Racial Discrimination, Convention on the Elimination of All Forms of Discrimination against Women, and Convention on the Rights of Persons with Disabilities.
[11] Committee on Economic, Social and Cultural Rights, General Comment No. 14: The Right to the Highest Attainable Standard of Health, paras. 8-9, (Adopted at the Twenty-second Session of the Committee on Economic, Social and Cultural Rights, 11 August 2000, E/C.12/2000/4).
[12] UN Committee on the Rights of the Child, General comment No. 15: The right of the child to the enjoyment of the highest attainable standard of health (Adopted at its sixty-second session, 17 April 2013, CRC/C/GC/15).
[13] Ibid., para. 23.
[14] Committee on Economic, Social and Cultural Rights, General Comment No. 14: The Right to the Highest Attainable Standard of Health, para. 11.
[15] Ibid., para. 12.
[16] Ibid., paras. 113-116.
[17] UN Committee on the Rights of the Child, General comment No. 4: Adolescent Health and Development in the Context of the Convention on the Rights of the Child (Adopted at the Thirty-third Session of the Committee on the Rights of the Child, 1 July 2003, CRC/GC/2003/4).
[18] UN Committee on the Rights of the Child, General comment No. 3: HIV/AIDS and the Rights of the Child (Adopted by the Committee at its Thirty-second Session, 17 March 2003, CRC/GC/2003/3).
[19] UN Committee on the Rights of the Child, General comment No. 15: The right of the child to the enjoyment of the highest attainable standard of health, para. 1.
[20] Convention on the Rights of the Child, Art. 4.
[21] UN Committee on the Rights of the Child, General comment No. 15: The right of the child to the enjoyment of the highest attainable standard of health, para. 72.
[22] John Tobin, “Children’s Right to Health” in International Human Rights of Children, eds. Ursula Kilkelly and Ton Liefaard (Singapore: Springer, 2019).
[23] Ibid., p. 293.