Right To Health

the Economic, Social and Cultural Rights, which guarantees the right to health, con- tains no mention of the contribution of the NCMs. It also does not specifically mention conventional medicine or otherwise pre- scribe the types of medicine required to meet the highest attainable standard of health. • In its General Comment No. 14 on the right to health, the Committee of Economic, Social and Cultural Rights takes a reductionist view by fram- ing the question of NCMs as a matter of interest and concern only for native people. In doing this, the Committee misses what current data show, namely that everybody (including urban popula- tions) resorts to non-conventional and comple- mentary medicines. The Committee confines these medicines to the used materials (healing plants, animals, and minerals) without mentioning their psychological and spiritual components. 56

nationality many individuals cannot access even the most basic of health services. Lack of documentation (often resulting from ineffective systems of birth registration) plays a significant role in childhood deaths from prevent- able diseases, which impact millions of children each year from birth to age five. Stateless children may be denied services, including subsidized vaccination programs, or may be required to pay more than patients with citizen- ship, a circumstance that often erects insurmountable financial barriers [44]. Children without birth certificates cannot be legally vaccinated in at least 20 countries, and more than 30 states require documentation to treat a child at a health facility [35]. The availability of documen- tation has also been cited as a factor reducing the risk of childhood exposure to HIV/AIDS, since identification papers firmly establish a child's age and make them less susceptible to early marriage agreements and sexual exploitation; in Uganda and Zambia, for example, birth certificates are considered key for establishing police pro- tection of children at risk for human rights violations. According to Unity Dow, a High Court judge in Botswana, "[A] person who lacks proof of identity is, in the eyes of officials, a non-person" [45]. In other words, statelessness is a condition that can arise not only in cir- cumstances of conflict and displacement, but also where state bureaucracies are not able to maintain a monopoly on the administrative facets of citizenship. For the pur- poses of individuals who need to claim rights such as the right to health, weak states produce an effect similar to ascriptive exclusion or war-induced displacement. At the end of the day each leaves people without legal national- ity.

which states commit to “take steps, individually and through international assistance and co-operation, espe- cially economic and technical, to the maximum of its available resources, with a view to achieving progres- sively the full realization of the rights recognized in the present Covenant by all appropriate means…” (emphasis added) [10]. Thus the right to health does not provide an immediate entitlement to the best available health care in the world. The corresponding obligation upon states is “to take steps towards” providing the best avail- able health care, taking into account that states’ re- sources are limited and that there are many rights to be realised – even the wealthiest states do not have unlim- ited resources for health care. Due to the greater avail- ability of resources, the level of health care that a government of a wealthy state is obliged to ensure its residents is broader than that which a government of a poorer state is obliged to ensure its residents, such that the entitlement to health care will look different across different countries.

The formulation of the RH varies from one document to another. The formulation contained in article 12 of the International Covenant on Economic, Social and Cultural Rights highlights and recognizes the RH in its first para- graph. The second paragraph outlines areas in which gov- ernments ought to guarantee full realization of the RH: first, reducing infant mortality and providing for the healthy development of children; second, improving envir- onmental conditions and closer monitoring of the conse- quences and working conditions of industry; third, disease prevention, treatment and monitoring, including prevent- ive HS and systems for monitoring occupational health; and, fourth, providing basic medical services for the entire population [8]. General Comment 14 outlines the core ob- ligations that the state should fulfill to achieve the RH. In addition, it points to the obligatory services and activities that each state should progressively place at the dispos- ition of people. The services are the same as those men- tioned in General Comment 12. The obligations include the recognition of the RH, the provision of remedies for redress, and the obligation of the state to refrain from laws, policies and activities that impede the realization of these rights. The realization of the RH by states is not an option, but an obligation required by international law. We do not mean that this right can be realized by a poor state like Chad overnight. The right to health is subject both to progressive realization and resource availability. Although expressed in this way, nonetheless, the RH im- poses technical and legal obligations of immediate effects. The technical obligations have been fulfilled to some ex- tent. These obligations include preparing a national plan for health care and protection, designing indicators and benchmarks for monitoring progress and encouraging in- dividual and community participation in health decisions. The legal obligations refer to the need for addressing the rights to underlying determinants of health (water, food, housing, access to information and sanitation). In spite of efforts deployed by subsequent governments to strengthen HS, the country has not being able to improve health indi- cators due to poor management of scarce resources and the lack of professionalism and public values that can

affirms the authoritative approach adopted by the CESCR in GC No. 14 (see section 3.5), but also expands the notion of certain elements of the right to health, such as the development of accountability and participation mechanisms, and looks at them in relation to specific population groups. Third, it is repeatedly indicated in the reports of this body that the adoption of a national health strategy by a State must be both comprehensive and targeted to the diverse health needs of various population groups, especially of vulnerable groups, within a State’s jurisdiction if it is to be appropriate. Several groups of people have been identified for being vulnerable to violations of their right to health. As such, measures required by States have to consider the diverse aspects of all existing vulnerabilities. Fourth, the position advanced by Grover reflects a comprehensive understanding as to the meaning of the term available resources and their calculation. It was generally submitted that whatever measures adopted by a State for the purpose of realizing the right to health, these remain subject to the resources available in a State and in the case of resource constraints to the way of accumulating and allocating them on the part of the State. The first step, though, towards this aim is the calculation of the amount of the resources to be available for health within a State. Thereto, it was identified that the least/minimum amount of such resources should be informed by the core obligations of the right to health which constitute a ‘funding baseline’.

Benhabib’s and Nash’s work offers a way to consider where aspects of identity intersect. The exploration of the intersection of identities: of gender, ethnicity, class, disability, migrant status offer a means through which to identify multiple discrimination and its realisation in the mundane and everyday, such as seeking healthcare, echoing Lister’s observation of an understanding of lived citizenship, exploring the inclusion and exclusions experienced by disabled people in their everyday lives (see Walby et al, 2012 and Crenshaw, 1991). In the field of health research, intersectionality has been usefully applied to explore seemingly intractable issues that defy simple interpretation, offering the possibility of more nuanced interpretations of health beliefs and behaviours of both health professionals and patients as they navigate health systems (see Hankivsky, 2010; Bowleg,2012). Multiple discrimination faced by particular groups in health systems has been recognised within policy and academic literature, with calls for an intersectional approach to understanding the health inequities experienced by individuals and communities (European Union Agency for Fundamental Rights 2013,(Hill 2015, 2016) Hill 2016, Bowleg 2012). Earlier, I noted that Nash pointed to the power, social and material resources which mediate rights and entitlements. Inequalities in health extend beyond class and disability (Bowleg, 2012; Hill, 2016). Exploring access to health systems through Nash’s schema enables us to think about the right to health for groups and across groups, to explore the power structures which shape entitlement and access to health and disadvantage particular groups in our society (Hill, 2016). While Nash is skeptical of democratic iterations capacity to challenge state definitions of ‘us’ and ‘them’; Benhabib’s democratic iterations offer a space whereby disability activists can and do engage in

At this stage there are two available options either the government amends the law or the judiciary plays its role by upholding the constitutional values, striking down the unconstitutional provisions of the law or interpret the law with a positive approach to human rights and thereby play the balancing part. The most controversial provision under the new Amendment Act is Section 3 (d). The Act permits generic manufacturers to continue producing generic version of new drugs in the mailbox. Though, this practice applies, where the generic product developer has made major investments. But it is provided that they were producing and marketing the generic version before the 1st Jan 2005. Otherwise such generic producers and manufacturers will have to back from the market. Moreover, the Act demands the generic companies to pay the, patent holders a reasonable royalty. Again, it could be argued that the term reasonable is ambiguous and gives the patents holder an upper hand to claim more percentage of royalty. This clearly shows the amount of pressure levied on India which had finally changed its laws to fit the TRIPS frame. Strong IP rights are said to bring more foreign investment while such ambiguous laws leave more room for the patent holders to manipulate in the market. Thus, it leaves major burden on the common man without proper access to medicines which is a violations of the basic right to health enshrined under Article 21 of the constitution. Indian judiciary as mentioned above has been actively involved in expanding the scope of human rights. It can protect the human rights of individuals through its interpretation of the new Patents Amendment Act, 2005. It should interpret the controversial provisions such as section 3(d) in such a way that they leave behind the meaning that the law is meant is to advance technology through inventions but at the same time safeguard human rights. Not only the judiciary but also the adjudicating authorities at WIPO should also approach a human rights test to the TRIPS provisions and should read them in harmony with human rights.

After 18 years of providing government- subsidised medical insurance for children of undocumented migrants, the Israeli Ministry of Health (MOH) decided in 2018 to abruptly reverse its policy. Many children will have access to medical care only in cases of emergency. The policy change is set to potentially impact several thousands of children currently living or born in Israel. The non- profit, humanitarian sector is already seeing the impact on undocumented migrant children, with dozens of families reaching out to Physicians for Human Rights Israel to seek help accessing care for their children. These policy changes seem to be politically motivated, aiming to exclude undocumented communities from the public healthcare system as part of a general strategy of encouraging them to leave Israel. Such actions are antithetical to public health, human rights and medical ethics considerations. The Israeli Medical Association is beginning to challenge the stance of the MOH. To conform to international guidelines—both legal and medical—government ministries and relevant official bodies must follow the advice of the medical community to ensure respect for the right to health.

In general, the analysis suggests that, although some Constitutions expressly provide for the right to health, many do not and this right is rather inferred from other rights. For example, it may be inferred from the right to a clean and healthy environment in Uganda's Constitution, and from the right to development, in the case of Malawi. In other cases, the constitution provides for Parliament to enact laws to provide for the right of persons to work under satisfactory, safe and healthy conditions, as is the case in Swaziland. In some constitutions, the right to health is conferred to specific groups such as children, health workers, the elderly and persons with disabilities. In some countries the right to health is restricted to principles of State policy and objective and thus excluded from enforcement by courts of law, as is the case with Lesotho. South Africa is a unique case in the region, as its

As international organizations show growing concerns about the health of migrants [1] fleeing the chaos in Syria, Iraq and Afghanistan and piling up on their way to safer European countries, the 2015–2016 refugee crisis has highlighted the lack of an inter- national legal framework providing for uniform standards of protection for migrant populations. One manifestation of this vacuum is the absence of an internationally ac- cepted definition of the word “ migrant ” [2]. This lack of consensus is observable through the different scopes of the definitions developed by international organiza- tions. They can go as far as to include all individuals who have resided in a foreign country for more than 1 year irrespective of the causes [3], or on the contrary be re- stricted to individuals who freely take the decision to move to another country for rea- son of “ personal convenience ” and without intervention of an external compelling factor [4], thus excluding asylum seekers awaiting refugee status. This need to distin- guish asylum seekers, escaping conflict areas, from economic migrants, has recently been reflected in the media [5]. In the absence of dedicated international standards, migrants ’ protection is mostly grounded in the general rules of human rights enshrined in international treaties and applicable to all human beings. As we will see, several of them provide for the fundamental right to health. The protection of the right to health of migrants should therefore be sought at the national level through an analysis of na- tional practices.

The Article 24 issue—the duty to protect minors—deserves some discussion, as it also applies to the L.C. case. It creates a difficulty for states, as they are no longer balancing the rights of an adult with an unborn child, but of a child—to whom they owe special duties of care—with an unborn child. Tobin has argued that in such a situation, it is not for the state to say simply that the child is exercising adult activities, and thus allow this special duty to be neglected. Rather, he says that `the right to health, when used in conjunction with several other articles under the CRC […] demands that appropriate measures be taken by states to minimize the risks to children's health which arise in the exercise of their sexual autonomy'. 76 If this is indeed true in relation to voluntary sexual activities, then

Overall, there seem to be a number of ways to resolve conflicts between the right to health and intellectual property rights without resorting to a priori- tization between the two, for instance by guaranteeing the ‘social dimensions of intellectual property’. 112 Similarly, international judicial bodies have shown that they can go a long way towards resolving potential conflicts between different norms of international law. The concept of evolutionary approach – used, for instance, by the International Court of Justice – under which an old treaty can be interpreted in light of further developments in other fields of international law, is a case in point. 113 However, in cases where prioritization is necessary, human rights should be given more weight than intellectual property rights. This is a situation that a number of countries may face. If the introduction of patents on medicines, which implies higher prices for drugs, is not counter- balanced with measures to offset price hikes and the shift in R&D away from diseases afflicting the poor, this is likely to lead to reduced access to drugs for most people in developing countries who have to pay for their own drugs. This situation is particularly in evidence in countries like India, which had formerly adopted specific restrictions on the patentability of drugs with a view to fostering better access to drugs. In this case, the dismantlement of a legal regime intended to foster better access to medicines is a step backwards in terms of the progressive realization of the human right to health. Unless these changes are offset by other measures such as subsidies to promote better access to drugs, this may amount to a violation of the ESCR Covenant which requires states at least to take positive measures towards implementation. 114

Though there is not yet a rigorous empirical basis upon which to gauge the budgetary impact of health litigation in Costa Rica, i.e. whether diversion and distortion of resources is indeed taking place, it is not unreasonable to suggest that if the right to health jurisprudence continues along hitherto lines, some form of either macro, meso or micro diversion and/or distortion is inevitable. If all Costa Ricans were to turn to the Sala IV to remedy the Caja’s denial to provide state- funded access to health goods, services and facilities for all ailments — serious or non-serious, cheap or expensive — either many more resources would have to be directed away from other important human needs towards health or the resources allocated for health programmes already prioritised by the state would have to be redirected and be completely employed for funding health-through-litigation. Either scenario is likely to have undesirable consequences. Resources should serve the population at large in all domains of life, and health only by litigation is likely to produce an overall negative distributional effect on health equity, particularly since there is evidence from Brazil, Argentina and Columbia to suggest that those who reach the courts do not tend to be those who are already most disadvantaged. This 26

Right to Health Care in the United States Local Answers to Global Responsibilities, The SMU Law Review Volume 60 | Issue 4 Article 11 2007 Right to Health Care in the United States Local Answers to Gl[.]

Human rights are enshrined in numerous international treaties, including the Universal Declaration of Human Rights; the International Covenant on Economic, Social and Cultural Rights; and the International Covenant on Civil and Political Rights. However, the right to health is limited by the principle of progressive realization, which has left loopholes allowing the deferment of fundamental human rights. 1 Many of these

With the prominence given to the achievement of Uni- versal Health Coverage (UHC) in the Sustainable Devel- opment Goals framework, the right to health and its legal enforcement are increasingly relevant [1]. As stated by the World Health Organization (WHO) UHC is de- fined as “all people receiving quality health services that meet their needs without being exposed to financial hardship in paying for the services” [2]. Thus, UHC is inclusive of effective coverage, i.e., access to quality health services (as opposed to insurance coverage) and protection against financial risk. UHC has been called a “practical expression of the right to health” [3]. As coun- tries progress towards UHC, policy-makers face difficult choices related to which services to expand first and to whom. Litigation over rights to goods and services will certainly play a role in how UHC is implemented, particu- larly in countries where the right to health is encoded in the national laws [1].

Work and well-being are closely related since the quality of working conditions and prospects have a direct impact on the individual's level of well-being. Economic development must necessarily consider the well-being dimension, because of its direct connection with productivity and competitiveness. The first commitment to achieving a global well-being strategy was made taken by the World Health Organization, but the same principles can be to be found in the social rights pillar of the European Union. In Italy in any case, the Constitution of 1948 already establishes the pursuit of the full development of the human person and, in it, establishing the right to health, understood as a state of psychophysical well-being. Actually, in the digital society, the worker enabled to work from any place and at any time thanks to technological devices, enjoys a greater autonomy in their working activity. However, the intensive use of new technologies is likely to have ambiguous and even contradictory effects.

Children all over the world have legal instruments for their protection. These rights are also accorded them under the Shari’ah. The protection of children covers all aspects of children’s life such as education, freedom of movement and right to health. Despite the existence of provisions under Shari’ah relating to the protection of children’s health, yet children are suffering from various diseases such as malaria, diarrhea and other communicable diseases. It has been proven that over 800,000 children have been suffering for health problem as a result of inadequate health facilities or medical expert as well as malnutrition. This suffering is due to the nonchalant attitude of some parents or government towards the application of Shari’ah on one hand, and ignorance of the objectives of Shari’ah known as Maqasid-al Shari’ah in relation to health of children on the other hand. Therefore, the purpose of this study is to examine the right of children to health under Maqasid al-Shari’ah such as darurriyat, hajiyyat and tahsiniyyat. Qualitative method is adopted and in doing so, analysis of both primary and secondary materials is be used. The primary data sources include the Quran and Hadith. The secondary sources include journals, judicial authorities, unpublished dissertations/theses, articles from newspapers and magazines while data will also be obtained through online data bases. Some of the instruments used include tools from other disciplines as well. The study concludes that full implementation of children’s right to health under Shari’ah will promote the health of children and assist them to develop mentally and physically.

standard of health (article 24). All countries in the world except the United States have now ratified this convention, which has implications for national health policy and priorities regarding health care for every child. The convention places an obligation on all public and private health institutions to ensure that the best interest of the child is assessed and taken as a primary consideration in all actions affecting children. The important point emphasized by the United Nations Committee on the Rights of the Child is that, based on the UN Convention, each child has a right to be assessed individually before a decision is made regarding proper treatment. As a consequence, the UN Convention may change practice in handling of newborns in a wider perspective.

CHCs are established and maintained by the State Governments. Manned by four specialists i.e. Surgeon, Physician, Gynecologist and pediatrician and supported by 21 paramedical and other staff, a CHC has 30 indoor beds with one OT, X ray facility, a labour room and laboratory facility. It serves as a referral centre for 4 PHCs. Currently there are 3222 Community Health Centres in the country.