Bridging international law and rights-based litigation: Mapping health-related rights through the development of the Global Health and Human Rights Database
Benjamin Mason Meier, Oscar A. Cabrera, Ana Ayala, Lawrence O. Gostin
Abstract
The O'Neill Institute for National and Global Health Law at
Georgetown University, the World Health Organization, and the Lawyers
Collective have come
together to develop a searchable Global Health and Human Rights
Database that maps the intersection of health and human rights in
judgments, international
and regional instruments, and national constitutions. Where states
long remained unaccountable for violations of health-related human
rights, litigation
has arisen as a central mechanism in an expanding movement to create
rights-based accountability. Facilitated by the incorporation of
international human
rights standards in national law, this judicial enforcement has
supported the implementation of rights-based claims, giving meaning to
states' longstanding
obligations to realize the highest attainable standard of health.
Yet despite these advancements, there has been insufficient awareness of
the
international and domestic legal instruments enshrining
health-related rights and little understanding of the scope and content
of litigation addressing
these rights. As this accountability movement evolves, the Global
Health and Human Rights Database seeks to chart this burgeoning
landscape of
international and regional instruments, national constitutions, and
judgments for health-related rights. Employing international legal
research to document
and catalogue these three interconnected aspects of human rights for
the public's health, the Database's categorization by human rights,
health topics, and
regional scope provides a comprehensive compilation of health and
human rights law. Through these categorizations, the Global Health and
Human Rights
Database serves as a basis for analogous legal reasoning across
states to serve as precedents for future cases, for comparative legal
analysis of similar
health claims in different country contexts, and for empirical
research to clarify the impact of human rights judgments on public
health outcomes.
Introduction
National legal frameworks that uphold health-related human rights
encourage a rights-based public policy that gives meaning to
international treaty
obligations and provides for individual causes of action, ensuring
human rights accountability for global health advancement. Accordingly,
such national
law has laid the groundwork for a rapidly expanding accountability
movement at the intersection of health and human rights, empowering
individuals and
groups to raise human rights claims and providing rights-based
enforcement for health. Supporting the implementation of human rights,
these cases have been
shown to provide essential medicines to the sick, to alleviate state
infringements on individual liberties, and to restrict harmful
determinants of the
public's health. This expanding case law, based upon international
instruments and codified in national law, has only begun to show
tangible gains in
national health policy and measurable effects on public health
outcomes. As this jurisprudence flourishes, human rights are elevating
from principle to
practice, concretizing legal obligations through judicial
interpretation and implementing universal norms through national policy.
However, despite international evolution in health-related human
rights and jurisprudential advances in creating accountability for these
rights, there
exists no compilation of either the substantive content of these
legal instruments or the enforcement claims litigated under these human
rights standards.
As this accountability movement grows, there arises an imperative
not only to increase awareness of the international, regional, and
domestic legal
instruments protecting health-related human rights, but to establish
precedent for rights-based claims, develop "best practices" in human
rights
enforcement, and harmonize practices conducive to the effective
realization of human rights in health. Where individual rights-based
claims have proven
successful in reforming national policies, these claims can be
compared across nations and issues–developing consistency in human
rights judgments,
facilitating universality through rights-based policy, and assessing
causality for public health outcomes.
Through the cooperative efforts of the O'Neill Institute for
National and Global Health Law at Georgetown University (O'Neill
Institute), the World Health
Organization (WHO), and the Lawyers Collective, a leading public
interest service provider in India, an online Global Health and Human
Rights Database has
been developed to document and catalogue the legal intersection of
health and human rights, creating searchable resources to identify:
1) Judgments
The judgments section of the Database provides a systematic survey
of jurisprudence addressing health-related rights claims, categorizing
judgments on the
basis of human rights, health topics, and regional scope and thereby
mapping the interaction between health and human rights in national,
regional, and
international case law.
2) International and regional instruments
The international and regional instruments section of the Database
illustrates how health-related rights are recognized in international
and regional legal
frameworks, detailing legally binding and non-binding instruments
(the latter referred to as "soft law") under international human rights
law.
3) National constitutions
The national constitutions section of the Database identifies
provisions of national constitutions that enshrine health-related human
rights, demonstrating
how health-related rights have been recognized as basic legal
principles capable of supporting actionable claims.1
As practitioners and scholars examine the landscape of
health-related rights through these three cross-linked sections, this
Database can provide a basis
for assessments of rights-based accountability efforts, allowing for
legal reasoning across national contexts to serve as precedents in
future cases and
for comparative analysis of similar health claims in different
country contexts. Given the growth of this Database, it is expected that
these resources may
form the basis of future research to clarify the impact of
health-related rights claims on public health outcomes.
Background
As part of an evolving interaction between human rights law and
national health policy, human rights have come to structure legal
accountability for
national policy through justiciable obligations. Supported by a wide
range of global institutions, the development of a database to
catalogue human rights
jurisprudence for health will promote the realization of
health-related rights at domestic, regional, and international levels.
Health and human rights
Human rights offer a powerful normative framework to advance justice
in health.2 Construing health disparities as "rights violations" offers
international
standards by which to frame government obligations and evaluate
social justice through legal enforcement.3 First elucidated by the 1948
Constitution of the
World Health Organization, states declared that "the enjoyment of
the highest attainable standard of health is one of the fundamental
rights of every human
being," defining health as "a state of complete physical, mental,
and social well-being and not merely the absence of disease or
infirmity."4 Building from
this expansive WHO standard, through the international legal
institutions developed since the end of the Second World War and the
founding of the United
Nations (UN), international human rights law has identified
individual rights-holders and their entitlements and corresponding
duty-bearers and their
obligations, empowering individuals to seek legal redress for health
violations rather than serving as passive recipients of government
benevolence.5,6
Codified seminally in the 1966 International Covenant on Economic,
Social and Cultural Rights—providing for "the right of everyone to the
enjoyment of the
highest attainable standard of physical and mental health"—the human
right to health has evolved in subsequent international instruments to
influence
health through an expansive and reinforcing set of international
treaties, regional instruments, and national laws and policies.7 As a
framework for global
health governance, UN agencies, development organizations, and
advocacy groups have increasingly invoked a "rights-based approach to
health," implementing
the right to health and rights to various underlying determinants of
health as a means to frame the legal and policy environment, integrate
core principles
into programming, and facilitate accountability for international
norms.8,9,10 Where scholars and practitioners long debated the
enforceability of social
and economic rights—with these debates grounded largely in the
politics of the Cold War—the 1990s brought with it a global consensus
that all human rights
are universal, indivisible, interdependent, and interrelated.11 Interpreting these interconnected human rights and correlative
government duties, the UN
Committee on Economic, Social and Cultural Rights (CESCR) issued a
General Comment in 2000 to provide authoritative understanding of state
obligations in
accordance with the right to health.12 As the CESCR clarified these
obligations in General Comment 14, the right to health depends on a
variety of
interconnected rights, beginning with preventive and curative health
care and expansively encompassing underlying health-related rights to
food, housing,
work, education, human dignity, life, non-discrimination, equality,
prohibitions against torture, privacy, access to information, and
freedoms of
association, assembly, and movement.
Implementing this evolving interpretation, states commit to respect,
protect, and fulfill the right to health, with human rights now
understood to offer a
normative framework for national health policy. As states have moved
to incorporate the right to health and a wide range of health-related
rights under
national constitutions and laws, this rights-based approach to
health is explicitly shaping government policy efforts.13,14,15 Yet
rights remain
meaningless without accountability. With an expanding movement to
hold governments accountable for the implementation of these
health-related rights,
litigation has served as a means to enforce government obligations
with respect to both de jure and de facto violations of human rights,
evaluating
national policies and securing access to justice for individual
health needs.16
Litigation as a strategy to enhance accountability
Litigation has become a central strategy in pressing state
accountability for realizing international treaty obligations and
national legal commitments to
health-related human rights, providing causes of action for
individual health needs and empowering individuals to raise human rights
claims for the
public's health. Supporting efforts to facilitate rights-based
accountability through national political advocacy and international
treaty monitoring, a
rapidly expanding enforcement paradigm has arisen at the
intersection of human rights litigation and national health policy.17 Where experience has shown
that human rights are justiciable for health, litigation before
national, regional, or international courts (or quasi-judicial bodies,
such as the United
Nations Human Rights Committee and the Inter-American Commission on
Human Rights) allows individuals to seek impartial adjudication from a
formal
institution with remediation authority.18 With judgments thought to
deliver benefits beyond the individual claimant, such cases are often
sought to reform
policies that impact the health of entire classes of people. These
cases, based upon international and regional human rights instruments
and national legal
provisions, have only begun to show tangible gains in national
health policy, with tribunals around the world expansively exercising
their authorities to
interpret human rights, clarify individual claims, and prescribe
national policies in response to leading threats to health.19,20
Incorporating determinants of health, litigation for health-related
human rights includes all of the civil, cultural, economic, political,
and social
rights that affect health. Where the justiciability of social and
economic rights is now a reality in many states, the post-Cold War
consensus on the
interconnectedness of human rights, as expressed in the Vienna
Declaration and memorialized in health through General Comment 14, has
recognized that
socioeconomic rights can be enforced even in their progressive
realization.21 Often in contentious dialectic with the political
branches of government,
judgments have advanced the interests of resurgent social movements
against recalcitrant government actors.22 Spurred on by the
"exceptional" rights-based
response to HIV/AIDS—beginning in freedoms from discrimination and
transitioning to access to essential medicines—litigation has produced
prominent health
policy reforms.23,24,25 With human rights influencing a wide range
of accountability mechanisms for the progression of human
dignity—including
international monitoring bodies, human rights indicators, and
"naming and shaming" advocacy—jurisprudence has the ability to
complement and concretize
these other mechanisms for the realization of rights.26 As this
accountability movement develops across multiple countries, with courts
often serving as a
last resort in protecting the public's health, human rights are
translated from principle to practice through judicial action.
In the past decade, the number of such cases has increased
dramatically throughout the world, especially in middle- and low-income
countries.27 An
"integrated approach" to rights-based freedoms and entitlements has
led to the adjudication of health issues pursuant to an expanding range
of
health-related human rights claims, from freedom from discrimination
in the health sector to fulfillment of the right to water and
sanitation.28 Likewise,
these cases have focused on an expanding range of health topics,
including, among others, access to health services and medication;
public health
emergencies; and underlying determinants of health. Despite
criticism that this rights-based litigation has distorted national
health governance, there
seems to be a clear trend toward more (and more progressive) cases–a
trend that is likely to accelerate given the creation of a
supranational individual
complaint mechanism under the 2008 Optional Protocol to the
International Covenant on Economic, Social and Cultural Rights.29,30 Yet
in advancing this
litigation to realize health-related rights—whether brought by
individuals with a specific health claim or by advocates seeking to hold
governments
accountable for public health obligations—there is limited
understanding of the legal strategies for litigation success, the policy
effects across varied
national health systems, and the health implications of cases.
Cooperative efforts to address human rights litigation
As the right to health gained increased attention in the new
millennium and began to crystallize at the international and national
levels, WHO began to
compile judgments and domestic, regional, and international legal
instruments to understand the contours of health-related rights,
particularly the right
to health. With both the institutional authority and legal capacity
to establish international coordination and cooperation for rights-based
approaches to
health, WHO has undertaken efforts to mainstream human rights as a
cross-cutting policy.31 Collaborating with organizations, scholars, and
advocates at the
intersection of health and human rights, WHO has encouraged studies
to facilitate a deeper understanding of the scope and content of
health-related rights,
reaching out to academic institutions and nongovernmental
organizations (NGOs) to undertake comparative research and analysis on
the application of human
rights to health. Recognizing that litigation for health-related
rights can take many forms—diverging according to the basis of the
right, the type of
judicial proceedings, the reasoning of the judgment, and the
implementation of the decision—WHO conceptualized a database on
rights-based judgments as a
useful tool to survey human rights law in national judicial
decisions. By cataloguing human rights for health in national, regional,
and international
judgments, international and regional instruments, and national
constitutions, access to this comparative research could provide easily
accessible
information to a wide range of stakeholders working health-related
human rights.
This Global Health and Human Rights Database arises through the
cooperative efforts of the O'Neill Institute, WHO, and the Lawyers
Collective to develop a
searchable online database that would provide a systematic survey of
human rights jurisprudence for health and would catalogue the
interaction between
health and human rights in national, regional, and international
judgments, international and regional instruments, and national
constitutions. Following
up on the WHO Database on Health and Human Rights Actors—which
surveys organizations working at the intersection of health and human
rights—this Database
aims to provide comprehensive access to human rights law for the
public's health.32 Based upon an initial legal database developed by the
O'Neill
Institute, WHO, and the United Nations Population Fund (UNFPA) to
map the legal and jurisprudential landscape at the intersection of
public health and
human rights, the Global Health and Human Rights Database
strengthens state capacity to develop rights-based approaches to health
and strengthens civil
society resources to create accountability for state obligations to
realize the highest attainable standard of health and other
health-related human
rights. Merging the O'Neill Institute, WHO, and UNFPA database
project on health and human rights law with a Lawyers Collective
database project on
health-related litigation, this expanded partnership—currently
working with over 50 partners globally, including NGOs, academics, and
private
researchers—has brought together health-related rights judgments,
instruments, and constitutions in a single online database.
Methodology
The Global Health and Human Rights Database seeks to bring together
three connected areas of human rights law for the public's health,
investigating the
intersection of health and human rights by compiling, summarizing,
and categorizing health-related human rights in judgments, international
and regional
instruments, and national constitutions.
Judgments section
The Global Health and Human Rights Database aims to provide
comprehensive access to judgments at the intersection of health and
human rights, categorized
on the basis of the human rights claimed, the health topics
advanced, and the geographic region concerned.
Following an exhaustive search for judgments in multiple
languages—identified through academic scholarship, NGO announcements,
international organizations,
partner institutions, and online electronic databases—relevant
judgments (largely under common law legal systems, but with examples
from civil law systems)
were selected for inclusion in the Database and summarized where the
specific case:
1) is adjudicated by an international, regional, or domestic court
(or quasi-judicial body, such as the UN Human Rights Committee and the
Inter-American
Commission on Human Rights);
2) implicates a specified health topic; and
3) argues a right of individuals or groups or an obligation of
duty-bearers referenced in relevant international or national law.
The researchers developed these qualifications through an iterative decision-making process, by which an initial set of proposed criteria was revised based upon expert feedback and refined based upon compiled judgments, with each case honing the initial criteria and formulating more specific criteria for future consideration.33 In classifying these selected judgments, the judgments section of the database was categorized principally through the rights claimed (grouped under clusters of freedoms, entitlements, and underlying determinants developed in General Comment 14) and the health topics advanced (based on WHO classifications), revising these categories to arrive at the rights and health topics outlined in Table 1.
Table 1. Rights and health topics categories
Rights |
Health Topics |
Right to health Right to life Right to bodily integrity Right to liberty and security of person Right to water Right to food Right to property Right to social security Right to work Right to the enjoyment of favorable working conditions Right to privacy Right to due process Right to education Right to housing Right to family life Right to enjoyment of the benefits of culture Right to participation Right to development Right to clean environment Right to identity Freedom of association Freedom of expression Freedom of movement and residence Freedom of religion Freedom from torture and cruel, inhuman, or degrading treatment or punishment Right of access to information Freedom from discrimination |
Adolescent health (e.g, ages 10-19: depression stemming from hostile social environment, violence, sexually transmitted infections, adolescent diabetes, adolescent nutrition) Health services (e.g., health care, equipment, staff, information, access to medicines) Health promotion (e.g., education, community development, policy, legislation, regulation) Infectious diseases (e.g., HIV/AIDS, tuberculosis, tropical diseases) Chronic diseases (e.g., cancer, cardiovascular diseases, diabetes, respiratory tract diseases) Child health and development (e.g., child abuse, custody) Aging (e.g., nursing facility care, age discrimination) Environmental health (e.g., drinking water, sanitation, food safety, environmental pollution, air pollution, climate change, social environment) Emergencies (e.g., armed conflicts, disasters, disease outbreaks, bioterrorism) Health technology and pharmaceutical products (e.g., essential medicines, biomedical technologies, medical devices, research, drug resistance, ehealth) Health systems (e.g., health financing, health services, health education, medical education, health workforce, health legislation, health policies, social security, research, research policy) Clinical trials (e.g., vulnerable population, case control, ethics, informed consent) Poverty (e.g., economic determinants of health) Gender (e.g., gender-based violence, sex/gender discrimination) Violence (e.g., war, child soldiers, post-war conditions) Population groups (e.g., children, women, older persons, indigenous populations, persons with disabilities, migrants, prisoners, refugees) Reproductive and sexual health (e.g., family planning, infertility, pregnancy, maternal health, breastfeeding, sexuality, sexually transmitted infections, female genital mutilation) Tobacco/Substance abuse (e.g., prevention and treatment of addiction) Mental health (e.g., treatment, institutionalization) Occupational health (e.g., workplace safety) |
In revising these categories, the researchers sought to reflect the
rights claimed and health topics advanced in a significant number of
relevant
judgments. For example, given the vast array of health topics
available, with many topics representing distal determinants of health,
the researchers found
it feasible and appropriate to delineate determinants as health
topics only where they were proximal to health outcomes. Further, the
set of health topics
was not seen as fixed; rather, the categorization of health topics
evolved as judgments were analyzed, entered into the Database, and
reviewed by the
researchers. Where experience showed that certain health issues were
represented in a significant number of judgments through periodic
review, the
researchers have delineated these issues as a distinct health topic,
as seen where a health topic was added based upon "population groups"
to capture an
expanding number of cases involving marginalized populations.
By arranging national, regional, and international jurisprudence in
accordance with these categories, including judgments in more than one
category where
circumstances warrant, this Database endeavors to provide a
comprehensive picture of rights-based litigation for health. After the
initial identification
and categorization of relevant judgments, the researchers summarized
each judgment on the basis of the parties, arguments, judicial
reasoning, holding, and
outcome. Once summarized, these judgments were described on the
basis of instrumental criteria—year, country, court, human rights,
health topics, facts,
decision, excerpts, and online link—incorporated into the database
development software FileMaker Pro, and posted to the Database's online
interface.
International and regional instruments section
Complementing this rights-based jurisprudence, the Global Health and
Human Rights Database seeks to compile international and regional legal
instruments
that codify the health-related rights identified in General Comment
14.
International and regional legal instruments were selected for inclusion in the Database and excerpted where the instrument:
1) is binding under international health law or is non-binding but
reflects global health policy (the latter referred to as "soft law");
and
2) contains provisions that address a health-related right of individuals or groups or an obligation of duty-bearers.
Following initial identification, the researchers excerpted relevant provisions, and each instrument was described on the basis of a number of instrumental criteria—year of adoption, year of entry into force, legal status (legally binding or non-legally binding), regional scope, excerpts, and online link—incorporated into the database development software FileMaker Pro, and posted to the Database's online interface.
National constitutions section
Given the growing "constitutionalization" of health-related rights
and the role of constitutions in the national codification of human
rights, the Global
Health and Human Rights Database seeks to highlight constitutional
provisions that uphold health-related rights, including those
constitutions that draw
upon referenced international and regional instruments.
Constitutions were selected for inclusion in the Database and excerpted where a constitutional provision:
1) addresses a right or an obligation explicitly linked with or
interpreted in relation to health services or underlying determinants of
health; and
2) explicitly declares either a right of individuals or groups or an
obligation of duty-bearers (including provisions on freedoms, such as
freedom from
torture, which may be stated as a prohibition).
Focusing on actionable constitutional provisions, national
constitutions were not included where they provide only a statement of
aspiration, a cursory
reference to a relevant health issue, or a broad definition of the
government's scope of work without an explicit declaration of government
obligation or
individual rights. Following initial identification, the researchers
excerpted relevant provisions, and each constitution was described on
the basis of a
number of instrumental criteria—regional scope, year of adoption,
year of enactment, original language, human rights, excerpts, and online
link—incorporated into the database development software FileMaker
Pro, and posted to the Database's online interface.
Expert review and official launch of Database
To assure comprehensiveness in its scope and accuracy in its
content, 52 public health and human rights scholars and practitioners
(across geographic
regions and health specialties) reviewed an initial model of the
Database, using an online evaluative survey to elicit feedback on its
usability and
substance. In assessing its usability, reviewers were asked to
evaluate the Database based on the interface of the website and the ease
with which they
were able to search and find a pre-selected judgment, international
or regional instrument, or national constitution using the various
search categories
provided on the search page. This approach allowed the reviewer to
confirm the appropriateness of the search categories, as well as suggest
categories that
should be added. Where the reviewer was unable to find the judgment,
international or regional instrument, or national constitution through
the search
function, the reviewer was invited to identify the judgment or legal
instrument for its inclusion. In confirming the substance of the
Database, reviewers
were also asked to assess the categorization of human rights and
health topics in the judgments section of the Database and to evaluate
the
comprehensiveness, organization, and quality of the summaries across
all three sections of the Database. Finally, reviewers were asked a
series of
conceptual questions on the overall ability of the Database to
capture the dynamic interaction between health and human rights through
its collection and
categorization of judgments, international and regional instruments,
and national constitutions. The researchers thereafter delineated
additional
categories, revised case summaries, and added new sources in
accordance with this review, launching the Database publicly in the
summer of 2012.
Results
Through its online interface, users can search the Global Health and Human Rights Database under each of its three independent sections. In the judgments section, users can either use a specific keyword search or conduct an advanced search for cases by the human rights claimed (grouped under clusters of freedoms and entitlements), the health topics advanced (based on WHO classifications), or the geographic region concerned (organized by UN region). In a similar manner, the international and regional instruments and the national constitutions sections allow users to search for instruments or constitutions based on their regional scope or through a keyword search. An interactive (Flash) global map feature, in Figure 1, allows country-specific searches for both judgments and constitutional provisions.
Figure 1. Search page of the Global Health and Human Rights Database
In viewing search results in each of the three sections of the
Database, shown for the judgments section in Figure 2, users can sort
results based upon
several pertinent categories identified through the expert review:
Judgments section – sorted by title, country, region, or year.
International and regional instruments section – sorted by title,
region, legal status, year of adoption, or year of entry into force.
National constitutions section – sorted by country, region, year of adoption, or year of enactment.
Figure 2. Judgments search results
By selecting a specific result, as exemplified for a specific
judgment in Figure 3, users can examine summaries of each
judgment, international or
regional instrument, and constitution. Supporting research beyond
the categorizations and detailed summaries, the Database includes an
online link to each
judgment, international or regional instrument, and national
constitution, enabling users to access the full text of the original
source (in its original
language and, where applicable, translated into English).
Figure 3. Judgments result page
The judgments section of the Database now houses summaries of over 350 cases, arising from a wide range of country contexts, health topics, and rights claims. While this non-empirical survey does not claim to represent the field completely, and the total number of judgments may well exceed those currently compiled (including those that did not result in written decisions), the selection methodology and expert review provide assurance that the Database encompasses the full scope of case law at the intersection of health and human rights. Throughout the development of the Database, the Lawyers Collective and the O'Neill Institute have established an extensive network of partners around the world who have assisted in identifying, summarizing, and translating cases. These partners will allow for the inclusion of judgments issued not only from the highest national court, but also from lower courts, providing a more comprehensive understanding of health-related rights litigation. Through these ongoing relationships, the Database will remain current in compiling and categorizing developments in relevant judgments and legal instruments at the domestic, regional, and international levels. As the Database continues to evolve, users will have the opportunity to submit additional judgments, international or regional instruments, and national constitutions where specific legal sources are not yet included, with an online form allowing for the attachment of the original source and user-initiated categorization. Continuous updating of the Database through user communications and periodic evaluations, along with the participation of global networks at the intersection of health and human rights, will assure the Database's ongoing legitimacy and relevance in a rapidly changing human rights landscape.
Analysis
By summarizing judgments, international and regional instruments,
and national constitutions and categorizing these summaries in the
searchable Global
Health and Human Rights Database, this systematic legal survey
catalogues the interaction between health and human rights at national,
regional, and
international levels. Despite national progress in creating
accountability structures for health-related rights, efforts have only
begun to assess the
reasoning, content, and effect of legal claims pursuant to these
human rights standards. As litigation has increased, rising alongside a
burgeoning
accountability movement at the intersection of health and human
rights, both proponents and opponents of rights-based policy have begun
to question the
limits of this enforcement strategy for national policy and the
impact of this litigation on global health. Given this growing critique
of human rights
implementation—leading to criticisms of public interest litigation,
questions of legal legitimacy, and claims of "judicial activism"—there
arises an
imperative for interdisciplinary analysis: examining these
precedents for rights-based claims, comparing divergent legal strategies
conducive to the
realization of human rights, and assessing the effects of law
reforms on the public's health. Meeting this imperative, the Global
Health and Human Rights
Database provides the academic and practice community with a
research base to identify transnational precedents from relevant legal
judgments (facilitating
policy reforms), enable comparative analysis of human rights
jurisprudence (supporting legal and social scientific studies), and
frame empirical
scholarship on the role of human rights as a determinant of the
public's health (clarifying the impact of health-related rights on
public health outcomes).
Transnational precedent
Serving as illustration and inspiration, successful rights-based
claims can lead to the translation of compelling jurisprudential
reasoning across national
contexts. While legal reasoning is not considered to be binding
precedent across nations, it has long been recognized that both regional
and national
judgments have persuasive authority outside their
jurisdictions.34,35 Domestic courts have repeatedly analyzed foreign
legal decisions, often from multiple
jurisdictions, when developing the contours of constitutional
obligations for the protection of health. For example, the
Constitutional Court of South
Africa has considered cases from the United States Supreme Court,
the German Federal Constitutional Court, the Supreme Court of Canada,
and the United
Kingdom House of Lords when determining remedies for health-related
violations pursuant to the Constitution of South Africa.36 Compounding
these direct
effects, such judgments have indirect effects in raising global
health awareness, catalyzing transnational movements, and spurring
additional rights-based
claims.17 In the context of health-related human rights claims,
scholars have begun to identify the claims most likely to find
jurisprudential success,
adding some measure of consistency across countries and claims.37 Through similarities in reasoning, judicial bodies can examine analogous
factual
situations and governmental responses, with norms emerging and
cascading across jurisdictions and through supranational forums.38,39 Given the
categorization under this Database, it is expected that as advocates
and practitioners engage in comparative analyses of legal strategies,
legal reasoning
across national contexts may serve as precedent for future
judgments, reinforcing universality in the core content of rights,
facilitating harmonization
where comparable circumstances warrant, and appreciating difference
in national approaches to rights realization.
Comparative analysis
While recognizing a sweeping imperative for universal and
enforceable human rights standards under international law, context
matters in the realization of
rights, as both the capabilities of the rights-holder and the
policies of the duty-bearer depend upon a range of distinct factors.
Specific political
environments appear more conducive to rights-based claims, and among
those environments, it is clear that only a portion of cases are
responsive to
treaty-based legal argumentation.40 Taken to the extreme, this
Database highlights entire country contexts in which there is scant
evidence of any human
rights jurisprudence for health. Even in those countries where there
is comparable legal mobilization, it becomes apparent that different
states will
achieve different levels of rights realization at different times,
with comparative institutional analysis necessary to examine the
differential individual
entitlements and differential adjudicatory procedures by which these
cases are decided and implemented.20 For example, given distinctions
inherent in the
principle of progressive realization, leaving state realization of
rights dependent, inter alia, on national resources and international
assistance and
cooperation, it is useful to compare the health systems of states at
equivalent levels of development—ensuring consistency in
resource-dependent claims
across comparable countries and comporting with General Comment 14's
admonition that states bear "a specific and continuing obligation to
move as
expeditiously and effectively as possible towards […] full
realisation."12,8 Through such comparative analysis of the dynamics of
litigation, moving beyond
the emblematic case studies often cited in jurisprudential analysis,
a deeper understanding of human rights realization can be found in
explicating
divergent jurisprudential approaches to achieving the same
rights-based goals. With the Database identifying commonalities across
judgments, such
categorized information lays the groundwork for more robust social
scientific analysis to assess underlying social, political, and economic
determinants of
litigation.
Empirical scholarship
With the effects of such litigation largely unexamined, there is a pressing research need for the health and human rights community to clarify the connections between human rights litigation and public health promotion. Outside of legal success before a judicial body, it is necessary to research: the mechanisms by which international and regional instruments, national constitutions, and judgments are implemented through policies; the obstacles that impede implementation of rights-based policy reforms; and the pathways through which such implementation can be conducive to meeting basic health needs.41 In recent years, scholars have argued that human rights litigation for health, especially when extended beyond the response to HIV/AIDS, may serve to entrench privilege through medical care, undercut principles of distributive justice, and abandon those in greatest need.42,43,44,45 To some outside the human rights practice community, these potential distortions in national health governance are seen as fatal flaws of justiciability and cause for casting aside human rights in health policy.46 Yet even as this litigation agenda faces opposition, too little remains known about the multivalent effects of these judgments on the public's health, including the policies impacted, the populations affected, and the outcomes achieved.47 Given the potential of these criticisms to undermine accountability for social change, it is vital that human rights scholars examine the empirical, as well as normative, justifications for health-related rights.48 With a clear trend toward an expansion of litigation opportunities, as individuals and NGOs seek to hold governments accountable for human rights obligations, limited data are available to facilitate empirical understanding of the causal link between these international instruments, rights-based judgments, health policies, and public health outcomes.29 Examining these social and political processes through the growth of this Database, it is expected that such a resource may provide the basis for empirical research on the impact of health-related rights on the public's health.
Conclusion
Human rights law is playing an increasingly influential role in
national health policy, with human rights jurisprudence giving meaning
to the content of
international and regional instruments and national constitutions.
With this human rights litigation landscape in a constant state of
evolution, the Global
Health and Human Rights Database will allow advocates,
practitioners, and scholars to stay apprised of these changes. As the
O'Neill Institute, WHO, and
Lawyers Collective work together to disseminate this Global Health
and Human Rights Database, it will be necessary to compile and
categorize the continuing
expansion of judgments and related legal instruments, ensuring that
these legal developments are available to the world.
Acknowledgments
In the four-year development of the Global Health and Human Rights Database, the researchers are grateful for the insightful contributions of a series of research assistants, the global resources of human rights staff across the United Nations, and the thoughtful commentary of expert reviewers, each of whom is acknowledged in the online Database. Additionally, the researchers would like to acknowledge specifically John Richards and Tim King for their long-standing work on the Database design and development.
Benjamin Mason Meier, JD, LLM, PhD, is an Assistant Professor of Global Health Policy at the University of North Carolina at Chapel Hill and a Scholar at the O'Neill Institute for National and Global Health Law.
Oscar A. Cabrera, Abogado, LLM, is the Director of the O'Neill Institute for National and Global Health Law and Visiting Professor of Law at Georgetown University.
Ana Ayala, JD, LLM, is a Law Fellow at the O'Neill Institute for National and Global Health Law.
Lawrence O. Gostin, JD, LLD (Hon.), is the Faculty Director of the O'Neill Institute for National and Global Health Law and the Linda D. and Timothy J. O'Neill Professor of Global Health Law at Georgetown University.
Competing interests: None declared.
Please address correspondence to the authors at bmeier@unc.edu.
Copyright © 2012 Meier, Nygren-Krug, Cabrera, Ayala, and Gostin. This is an open access article distributed under the terms of the Creative Commons Attribution Non-Commercial License (http://creativecommons.org/licenses/by-nc/3.0/), which permits unrestricted non-commercial use, distribution, and reproduction in any medium, provided the original author and source are credited.
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