Standards for the Right to Health and Conditions Necessary
for its Realization
Dr. Dong Wenyong
Institute of law of Chinese Academy of social sciences
Existence and development of life is a fundamental concern of human beings, who has made constant
contribution to it for thousand of years. As an important factor for maintaining life and assuring dignity of
human beings, healthy life is always a goal fighted for. With social development, human beings demand
healthy and dignified existence in order to pursuit of all-the –round development. Therefore, the right to
health was defined and it is also hoped that the right to health shall be protected and promoted in a way
that other rights such right to dignity and right to personal freedom.
The right to health has developed into as a basic human right and a core purpose of social development,
which has been defined in several important international human rights documents. TheUniversal
Declaration of Human Rights adopted by the General Assembly of the United Nations of 10 December 1948
article 25 provides: ‘ everyone has the right to a standard of living adequate for the health and well –being
of himself and of his family, including food, clothing, housing and medical care and necessary social
servers, and the right to security in the event of unemployment, sickness, disability, widowhood, old age
or other lacks of livelihood in circumstances beyond his control.’ The first pargraph of Article 12 of the
International Covenant on Economic, Social and Cultural Rights adopted by the General Assembly of the United
Nations of 15 December 1966 provides: ‘The States Parties to the present Covenant recognize the right of
everyone to the enjoyment of the highest attainable standard of physical and mental health.’ The first
paragraph of Article 24 of the Convention on the Rights of the Child adopted by the General Assembly of the
United Nations of 20 December 1989 provides: ‘States Parties recognize the right of the child to the
enjoyment of the highest attainable standard of health and to facilities for the treatment of illness and
rehabilitation of health. States Parties shall strive to ensure that no child is deprived of his or her right of
access to such health care services. ’ In addition to the provisions for the right to health in the above
mentioned international human rights documents, the provisions in other documents are helpful to
realization of the right to health. For example, Article 5 of the International Convention on the Elimination of
All Forms of Racial Discrimination adopted by the General Assembly of the United Nations of 21 December
1965 provides: ‘States Parties undertake to prohibit and to eliminate racial discrimination in all its forms
and to guarantee the right of everyone, without distinction as to race, colour, or national or ethnic origin,
to equality before the law, notably in the enjoyment of the following rights---economic, social and culture
rights, especially the right to public health, medical care, social security and social services---.’ The
article 12 of the Convention on the Elimination of All Forms of Discrimination Against Women adopted by the
General Assembly of the United Nations of 18 December 1979 provides: ‘States Parties shall take all
appropriate measures to eliminate discrimination against women in the field of health care in order to
ensure, on a basis of equality of men and women, access to health care services, including those related to
family planning---States Parties shall ensure to women appropriate services in connection with pregnancy,
confinement and the post-natal period, granting free services where necessary, as well as adequate
nutrition during pregnancy and lactation.’ Furthermore, some regional human rights documents also
provide the right to health and other related rights.
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Although different countries have gradually deepened their understanding on the health issues and
made some achievements in protection and promotion of right to health since the adoption of the Universal
Declaration of the Human Rights, realization of right to health is not satifactory. There is no common
understanding about some fundamental issues such as what is the right to health, what are standards for
the right to health, how to realize the right to health, etc. At least it is because of these different
understandings of these fundamental issues which has brought about slow development in protection and
promotion of the right to health universally. Therefore, the understanding of the right to health is critical
and the my paper will focus on an analysis of standards and realization of the right to health.
Analysis of the Concept of the Right to Health
In view of the significance of health to the human beings, the right to health has been subsquently
recognized by many important internationd human rights dowments and also aceepted and protected by
governments in different countries, which also draws attention and concern from the academic circales.
I think that the right to health of human being refers to right to normal physical and physiological
functions and satisfactory mind. The human being here include either individuals and groups of persons
such as women, children and the disabled; the normal physical and physiological functions of the human
being refer to possession of functions determined by their natural characters; the satisfactory minds means
intelligence and reasoning required by social characters of human beings based on their natural
features.The health means both plysically healthy and mentally healthy, that is as a physiological being
and a social being, his (her) physical and mental conditions shall be suitable and meet requirements for
the enviromental sustainable devdopment of the society, which he/she belongs to.
1. Specific Foms of the Right to Health
The right to health is a collection of a series of rights and may be divided into different forms in
acordanec with different standards.
1.1 Based on the subjects of the right to health, it may be classified as right to health of individuals,
right to health of groups of persons and right to health of the public. The right to health of individuals
refers to the right of individuals to normal physical and physiological functions and satisfactory mind,
which is universal, general and a major form of the right to health. The right to health of a specific group
refers to the right of a specific group to normal physical and physiological functions and satisfactory mind,
such as right to rehabilitation of the disabled. The right to health of the public is the right of all citizens in
a country to the normal physical and physiological functions and satisfactory mind, such as the right to
good environment and sanitation, right to healthy profession.
1.2 Based on the contents of the right, the right to health may be divided into many forms. By healthy
requirements, the right to health may be divided into right to health care, right to medical treatmeat, right
to rehabilitation; by the existence of health, the right to health may be divided in to right to physical
health and right to meantal health; by guaranteeing factors for health, the right to health may be divided
into the right to healthy drinking and food, the right to access to medical equipment, the right to access to
health knowledge, the right to envionmental sanitaton, the right to medical insurance, the right to access
to information of major public health events.
1.3 Based on the functions of the right, the right to health may be divided into the right to maintain
healthy, the right to request health, remedy to right to health.
1.4 The right to health may also be divided into active right to health and passive right to health. The
active right to health means realization of the right to health needs active assistance of other subjects in
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addition to the subjects of the right, such as enjoyment of the right to health, right to medical insurance.
The passive rights to health means realization of the right to health can be satisfied without assistance or
intervention,such as the right to maintain health.
2. The Righ to Health has Three Manifestations---the right to health as it ought be, the legal right to
health and the right to health as it is. Not all rights may be realized by laws. The right to health is a right
to morality and is a kind of right as it ought be before accepted by laws. The original meaning of the
right to health is a kind of right as it ought ve which is above all factors such as nation, nationality, race
sex, age, profession and religious belief and accepted by mandind. The right to health is a kind of right
with a generd moral support. On many occasions, the right to health as it ought be is reflected by laws,
whereas on other occasions it is manifested by other social regulations (such as national policies, habits
and customs)
The legal right to health is the right to health in the law of the indivriduals, which is a foundemental
and universal form of the right to health. The legal right to health transformed from the right to health as
it ought be will be protected by laws, which is a universal and authoritative social controlling method.
The approval and guarantee of the legal right to health may be provided both by domestic laws and by
international laws.
The right to health as it is is a real enjoyment of the right of health by individuals. The purpose of
confirmation of the right to health by laws is to promote realization of the right generally and completely.
However, the legal document may not be totally transformed into legal orders and objectives of the right
may not be completely realized due to subjective and objective factors, so the right to health as it is shall
be regarded as the fundamental indicator for measuring the level of protecting the right to health in a
county.
The right to health as it ought be may be transformed into the legal right to health and farther
transformed into the right to health as it is, it also can be transformed into the right to health as it is by
other methods. Anyway, a county must assure the right to health as it is most closely to the right to health
as it ought be.
2. Right to Health and other Human Rights
The health is closely related to happiness of every individual. The right to health is generally regarded
as a fundamental human right and is closely connected with other human rights, and these connections
reveal values of the right to health and factors necessary for the protection of the right to health.
The connections between the right to health and other human rights include two aspects. On one hand,
policymaking, legislation and plan implementation required for realization of the right to heath may
promote or affect other human rights. For example, isolation of patients for controlling infectious diseases
may violate human rights such as right to freedom. On the other hand, protection or violation of other
human rights may also affect the protection of the right to health. For example, extort confessions by
torture may constitute a violation of the right to silence of the individual. With regard to the close
connection among the right to health and other human rights, there shall be a balance between the
realization of the right to health and other human rights. Furthermore, favorable conditions for the
realization of the right to health shall be created through realization of other human rights.
Standards for the Right to Health
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The standards for the right to health refers t standards for measuring the right to heath. As a basic
human right, the right to health is of great significance to existence and development of human beings. In
order to attain the preset objectives through the protection and promotion of the right to health to avoid
abuse of the right to health or violation of the right to health owing to different understandings,
constrained conditions and inadequate measures, it is necessary to set up standards for the right to health.
From a perspective of purpose and significance, the chief and the most fundamental issue is to get to
know what kind of standards shall be suitable for the right to heath. Only with this clear defination,
exercise and protection of the right to health can be adequately implemented. Therefore, the right to
health shall at least comply with standards such as inherent, universal, equal and specific standards.
1. The right to heath is inherent in human being. As a basic human right, the right to heath is as
signifcant as human beings themselves, which means that the right to heath and qualifications necessary
for access to the right to health may not be deprived or is intransferable. The inherence of the right to
health make it a kind of interest, qualification, claim, function or freedom to resist, claim and monitor
state powers. It also shows that it is a right closely related to living bodies of human beings. The citizens
are required to fully respect the right to health and are not allowed to transfer the right to health. The
transferring of the right to health may result in denial of values of human beings, violation of human
dignity and social pubic morality.
2. The right to health is universal. As a basic human right, it shall be enjoyed by each person in a society
regardless of their race, sex, age, profession, social position, identification and living places at any time
and on any condition. The right to health at this level has been recognized by many important
international human rights documents and domestic laws and policies and therefore it is an objective to
the firstly achieved by different countries. Based on this standard, everyone shall have the right to health;
every member of any special group shall have the right to group health; every citizen of any county shall
have the right to the public health.
3. The right to health shall be fair. The universal access to the right to health does not mean equally access,
rather it means allocation, and access, exercise and protection of the right to health shall be fair and equal.
4. The right to health is specific. The specific contents of the right to health of citizens in different
countries at different historical periods are distinct from each other. Due to this distinction, standards for
the right to health in one country cannot be used to evaluate and assess the right to health in other
countries. The constraints on the exercise and protection of the right to health have been recognized by
some important international human rights documents. Thus it may be inferred that the exercise of the
right to health of citizen shall also constrained by some conditions. Therefore, the right to health is not
absolute, or it will lead to the abuse of rights.
Practical Standards for the Right to Health
The development of the right to health aims at realization of heath interests by subjects of the right, and
the setting up of the standards for the right to health aims at providing certain monitoring standards for
realization of the right to health for subjects of obligation. Due to deferent standards of the health interests,
as an immaterial medium for realization of the health intersts the right to health is even more uncertain.
Starting from a dynamic development, respest to the right to health and degree of protection and
promotion of the right to health may be regarded as standards in practice. Since the right to health is
specific, 1 will discuss standards for the right to health in practices based on different levels of the right to
health.
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1.The health knowledge shall be disseminated in all communities.
The health knowledge of one person directly influences his health habits and attitute to living style.
The access to the health knowledge helps citizen to put forward adequate health requirements from the
state and reveal problems existed in the current medical systems, which further supervise implementation
of health functions and responsibilities of government. Ln view that the health issue is no longer an issue
of individuals, the acess to health knowledge of individuals is no loger a freedom but also an obligation
espeaially for women. The access to health knowledge of citizen include: (a) the citizen shall have health
awareness and wills to have access to health knowledge; (b) a society shall provide different kind of
opportunities for them to have access to the health knowledge, and the citizen may have access to the
health knowledge related to their works and living style from time to time; (c) the state shall mahe laws
and policies for the citizen to have access to the health knowledge, regulate and monitor health
knowledge dissemination, and provide necessany support even directly undertake the duty to disseminate
health knowledge.
2.The Right to primary health care is guaranteed.
Both theories and practices show that the primary health care is a key and basic channel for everyone
to have access to health care. For citizens, the most important is not to have access to good medical
services in the event of sickness, but to have access to right to health promotion, disease prevention,
prompt treatmeat and rehabtitation. For a state, the important thing is to provide basic medical prevention
and treatment, planning immunization and emergency services for individuals.
State shall take main responsibility to realize the right to health at the level of primany health care. In
this regard, the standards for the right to health shall include: (a) the state shall reasonably distribute
health resources based on the basic health requirements, citizens either in urban areas or in rural areas
shall have access to health sevrices; the state shall also take actions to bridge gaps in access to the health
resources among different regions and different groups of people; (b) the government health spending
shall not be less than a certain percentage of GNP and shall cover primary health sevrices including health
care provided in cormmunities and clinical health care; (c) the state shall improve food hygiene to assure
its citizen to have aceess to necessary nutrition and sanitary drinking water; (d)the citizens shall have the
right to necessary essential drugs or basic health sevrices; (e)the citizens shall have the right to reliable
and afforable basic health care sevrices, includling infectious disease prevention and inoculation,adequate
treatment of common aitment and wounds and injuries and the disabled, MCH health care;(f) the right to
have access to the primary health care of the citizen shall be defined in law and protected in practice.
3.Access to the basic medical services of the citizen
The Universal Declaration of Human Rights provides that everyone has the right to medical care and the
right to security in the event of sickness. The International Covenant on Economic, Social and Culture Rights
specifies treatment of infectious and endemic diseases and creation of conditions assuring all medical
services and medical attention in the event of sickness as attainable objectives required for the realization
of the right to health. Since accessibility to the medical service is closely related to the health and
recovery of the patients, the right to medical service shall be the core of the right to heath.The
accessibility to the medical service may be reflected both at macro level and micro level.
The right to the medical service at the macro level is mainly reflected by the guarantee for the
patients provided by the state.At this level ,the right to health includes:(a) the state makes laws to define
its duties and responsibilities in providing medical service and health monitoring, and to regulate medical
services and medical marketing;(b)the state guarantees availability of different kind of medical
institutions at different levels to assure the citizens to have access to efficient medical services at a
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reasonable price in the event of physical and mental diseases;(c)the state establishes the medical security
system---including social medical insurance and medical relief system, which shall cover all its citizens
and assure them to have equal access to the social security in the event of financial constraits;(d) the state
assures availability of adequate traffic and communication to assure its citizen to have access to the
medical services timely;(e) the state assures adequate procedures for providing the medical service.
The right to the medical service at the micro level is mainly reflected by the right enjoyed by the
patients during the process of receiving the medical service .At this level, the right to health includes :(a)
the right to learn the truth. The patient have the right to learn all the information about the medical service
he is going to receive. Furthermore, a guardian of a serious patient or a mental patient may exercise the
right to learn the truth in the event of incompetency of the patient. The medical institutions are obliged to
inform the patient or his family members the information about his disease without affecting the treatment
results;(b) the right to information and consent. The patient has the right to all information about the
medical service and further has the right to make a choice about the medical service based on the
available information. The guardian of the serious patient or the mental patient may exercise this right for
him;(c) the right to privacy. The patient has the right to privacy of his physiological, mental and other
diseases and has the right to ask the medical institutions to keep it private. In addition, the health worker
are not allowed to make it public without consent of the patient; (d) exemption of specific social duties.
The patient has the right to the exemption of specific social duties based on the medical certificate
provided by the medical institutions and meanwhile has the right to welfare security;(e) the right to
adequate medical treatment procedures. The medical institutions shall follow legal procedures in the
event of isolation of the patient; (f) the right to remedy for violation of right to health. The patient and his
family members have the right to prosecute or accuse tort actions of the medical institutions such as
refusal of treatment and inadequate treatment.
4.Effective protection of the right to heath for the special groups. The level of enjoyment of the right
to health by its citizens in a country is determined by the degree of the effective protection of the right to
health of the special groups instead of protection of the right to health of its ordinary population. As
mentioned above, the right to health of the special groups at least includes the right to health for women,
the right to health for the infant and the child, the right to health to the old and the right to health for the
disabled persons.
(a) The health of women is critical for the human beings, and their right to health shall be strictly
protected. The Universal Declaration of human Rights provides the maternals are entitled to special care and
assistance. The International Covenant on Economic, Social and Culture Rights provides that special protection
and social security shall be accorded to mothers during a reasonable period before and after childrenbirth.
Therefore, the state shall assure availability of health care for women during their childbearing period,
their right to family planning, availability of special care for women during a reasonable period before
and after childrenbirth, equal access to medical facilities, availability of bearing insurance, protection of
women free of violence in different forms (including family violence).
(b) The International Covenant on Economic, Social and Culture Rights provides for healthy development of
the child. The Declaration of Children’s Rights provides that children shall enjoy physical, intellectual and
mental development under a healthy and normal condition and with freedom and dignity. The Covention on
the Rights of the Child recognizes the right to the child to the enjoyment of the highest attainable standards
of health and to facilities for the treatment of illness and rehabilitation of health. The state shall assure
availability of planning immunization and inoculation of infants and the child, adequate nutrition for them
and lower infant motality rate. The state shall take measures to prevent the underage from smoking , drug
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abuse and unhealthy culture. The employment of child labors is strictly prohibited.
(c) The Declaration of Human Rights provides that the citizens have the right to health and to security in
the event of the old. The state is obliged to protect the right of the old to have access to health care and
medical service either by laws or by policies, to make laws or take other measures to assure availability of
mental health care service for the old, and to assure availiablity of the rehabilitation service for the old
patients with chronic diseases.
(d) The right to health of the disabled shall be specially protected. Declaration on the Rights of Disabled
Persons provides that disabled persons have the right to medical, psychological and functional treatment
and social rehabilitation. The Declaration on the Rights of Mentally Retarded Persons provides: ‘the mentally
retarded person has a right to proper medical care and physical therapy and to such education, training,
rehabilitation and guidance as will enable him to develop his ablity and maximum potential.’ The
Vocational Rehabilitation and Employment (Disbaled Persons) Covention emphasizes disabled persons have the
right to vocational rehabilitation, which shall be equally enjoyed by them regardless of where they come
from. In order to protect the right to health of disabled persons, the state shall make laws and policies to
prevent and control occurrence of the disability, to assure availibilty of adequate basic health facilities for
them, to take relavant measures to eliminate discriminations of all forms.
(e) The right to public health has been respected and protected. The Universal Declaration of Human
Rights points out that everyone has duties to the community in which alone the free and full development
of his personality in possible. The International Covenant on Economic, Social and Culture Rights provides that
the States Parties are obliged to assure everyone to have access to safe and healthy working conditions. It
further provides that the States Parties recognize the full realization of the improvement of all aspects of
environmental and industrial hygiene and the prevention, treatment and control of epidemic, endemic,
occupational and other diseases.
The states shall make laws and technical regulations to assure commodity hygiene standards,
qualified and hygiene food and drinking water, and improved working conditions; they are obliged to take
all possible and reasonable measures to prevent and control Aids and other serious infectious diseases;
they shall assure marketing orders for public health providing and regulate marketing behavious which is
likely to affect the public heath; they shall set up special bodies supervising the public health and early
warning forecast system to assure the operation of the reporting system for the major infectious diseases;
they shall set up emergency treatment mechanism and adequate procedures for emergent and major public
health events and.
The above standards in practice of the right to health are fundamental requirements for respect,
protection and realization of the right to health. The states shall assure these minimum standards, of
course these standards may constantly improve with development of national power.
Conditions Necessary for Realization of the Right to Health
Based on thestandards of the right to health, its realization is a systematic social engineering and
needs certain conditions. The International Covenant on Economic, Social and Cultural Rights points out that the
states parties undertake to take steps, individually or through international assistance and co-operation,
specialty economic and technical, to the maximum of its available resources, with a view to achieving
progressively the full realization of the rights recognized in the Covenant by all appropriate means,
including particularly the adoption of legislative measures. Therefore, the full realization of the right to
health shall be based on a series measures, social supporting and development of medical techniques and
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improvement of medical system. Generally speaking, the realization of the right to health needs economic,
political, social, cultural, legal and International conditions, which are complementary to each other.
1. The economic condition for the realization of the right to health. The protection the right to health is
determined by the economic strength in a country. The economic development is a decisive factor for the
improvement of the health of the citizens, and majority health issues are closely related to economic
issues. The International Covenant on Economic, Social and Cultural Rights provicles that in the enjoyment of
those rights provided by the states in conformity with the Covenant, the states may subject such rights
only to such limitations as are determined by law only in solar as this may be compatible with the nature
of these rights and solely for the purpose of promoting the general welfare in a democratic society.
Therefore, the developing countries shall gradually realize the right to health specified in the Covenant
with its economic development.
2. The political condition for the realization of the right to health. The political structure of a county
will produce direct influence on the right to health of citizens, respect and protection of the right to health
must be assured at the political level. The International Covenant on Civil and Political Rights provides that
everyone shall have the right to freedom of expression, association and peaceful assembly, which the
exercise of above rights carries with its special duties and responsibilities. It may therefore be subject to
certain restrictions, but these shall only be such as are provided by law and are necessary for the
protection of national security or of public order, or of public health or morals. In view of the difference
in government power and political rights of citizens resulting from different political systems in different
countries, the political experience in one county neither constitutes the political standards nor constitutes
a hinder for protection of the right to health in another county.
3. The social condition for the realization of the right to health. The Universal Declaration of Human
Rights provides that all are equal before the law and are entitled without any discrimination to equal
protection of the law. The International Covenant on Economic, Social and Cultural Rights provides that
everyone, as a member of society, has the right to social security and is entitled to realization of the rights
indispensable for his dignity.The states recognize the right of everyone to an adequate standard of living
for himself and his family, including adequate food, clothing and housing and to the continuous
improvement of living conditions and will make efforts to realize the rights by effective utilization of
resources and improvement of environment hygiene. Practices show that the social conditions are
important support for the right to health and must be constantly improved.
4. The culture condition for the realization of the right to health.
5. The legal condition for the realization of the right to health.
6. The international condition for the realization of the right to health.
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