Securing Health through Rights

Abstract

The right to health is recognized in international human rights law and in many modern liberal constitutions. Yet it is notoriously difficult to conceptualize and institutionalize. It raises boundary problems in relation to the object of the right and its correlative duties, and reasonable disagreement on the values that make it worthy of protection. This article departs from the positivist attempt to define the meaning of the right to health, or the normative attempt to provide it with a settled justificatory theory. Instead, it argues that attention to a theoretically informed practical action, captured by the concept of praxis, clarifies the institutional potentials of the right to health or health care, even as it accepts its inevitable limitations. The article reveals this potential by examining two instances of health rights praxis. The first involves a defense by the Treatment Action Campaign of the regulation of medicines in South Africa. The second involves a targeted campaign and litigation against user fee health financing in Ghana. These cases demonstrate how the meaning of a legal right to health is created, challenged and changed in the effort to secure positive health outcomes.

Keywords: right to health, economic and social rights, South Africa, Treatment Action Campaign, Ghana, Legal Resources Center, patents in medicines, user fees, health financing, practical action, praxis, litigation as performance

JEL Classification: I1, I3, D4