44 Pages Posted: 9 Jan 2008 Last revised: 25 Mar 2010
Date Written: 2005
Codifying, and then implementing, an international right to health, health care, or protection is beset with serious roadblocks - foremost among them being contentious issues of indeterminacy, justiciability, and progressive realization. Although advanced - and to some degree recognized under the rubric of a social or cultural entitlement within the law of human rights and, more particularly, the U.S. Declaration on Human Rights, together with International Covenant on Economic, Social and Cultural Rights (ICESCR), the International Covenant on Civil and Political Rights, the European Convention on Human Rights, and presently UNESCO's Draft Declaration on Universal Norms on Bioethics - attainment of such a universal right to health remains at best dubious. The central impediment to the recognition of such a right is determining the extent to which a sustained level of economic stability must be chartered before a state can be seen as either recognizing or enforcing a right to health of any kind and at any level of magnitude. Indeed, under the ICESCR, realization of economic social and cultural rights is to be effected only under a standard of progressivity. In other words, so long a states move "progressively" toward the realization of these rights, no actionable violations will be sustained. This, then, results in a flawed enforcement mechanism which allows any state signatory to this foundational covenant to pace enforcement of the rights under the ICESCR according to national standards of political will and differing levels of economic development and sustainability. Economic self-interest - not transnational principles and lofty aspirational goals - will determine ultimately, the extent to which health care protections are recognized as a integral part of social, cultural, political, or human rights.
Suggested Citation: Suggested Citation
Smith, George P., Human Rights and Bioethics: Formulating a Universal Right to Health, Health Care, or Health Protection? (2005). Vanderbilt Journal of Transnational Law, Vol. 38, No. 5, pp. 1295-1321, 2005; CUA Columbus School of Law Legal Studies Research Paper No. 2008-1. Available at SSRN: https://ssrn.com/abstract=1081972