The International Right to Health: State Obligations and Private Actors in the Health Care System

Abstract

This article considers what the international right to health says about the proper role (if any) of the private sector in the health system and the obligations of states which use private actors in their health systems. The focus here is on health care (being the preventative or therapeutic services or goods provided by health professionals in hospitals, clinics etc) and health finance (being the funding for such health care) and not on the other conditions which contribute to one’s health status. This article finds that neither of main entities responsible for elaborating and promoting the right to health in international law, being the Committee on Economic, Social and Cultural Rights (Committee) and the Special Rapporteur on the Right to Health (Special Rapporteur), has given detailed guidance about the implications for states of having private actors in their health care systems. Despite this, the article argues that it is possible to develop a clear understanding of some of the main duties of states in these situations. This understanding comes from a close study of the primary documents of the Committee, other human rights treaty bodies, the Special Rapporteur, and the Special Representative on Human Rights and Corporations. In summary, this study confirms that when states use private capacity in their health systems, states still have primary responsibility for realising the right to health and are fixed with additional responsibilities for regulating and managing the private sector.

Keywords: international law, health

JEL Classification: K00, K19, K39