PHM-Exch> New avenue for Litigating the Right to Health

[Claudio Schuftan]

New avenue for Litigating the Right to Health – Optional Protocol to the
ICESCR comes into force
Feb09
*2013*<http://www.oneillinstituteblog.org/new-avenue-for-litigating-the-right-to-health-optional-protocol-to-the-icescr-comes-into-force/>
  Written by *O’Neill
Institute<http://www.oneillinstituteblog.org/author/oneillinstitute/>
*

*This post was written by Oscar A.
Cabrera<http://www.law.georgetown.edu/oneillinstitute/faculty/Oscar-Cabrera.html>,
Eric Friedman<http://www.law.georgetown.edu/oneillinstitute/faculty/Eric-Friedman.html>,
and Brian Honermann<http://www.law.georgetown.edu/oneillinstitute/faculty/Brian-Honermann.html>,
all from the O’Neill Institute.*

On 5 February, 2013, Uruguay – following quickly on the heels of Portugal –
became the 10th country to ratify the Optional Protocol to the
International Covenant on Economic, Social and Cultural Rights (ICESCR). In
accordance with article 18(1) of the Optional Protocol, this means the
Optional Protocol will come into force on 5 May, 2013.

The Optional Protocol empowers the Committee on Economic, Social, and
Cultural Rights (CESCR) to receive communications (complaints) from
individuals or groups of individuals claiming to be victims of violations
of their rights as protected by the ICESCR against countries who have
ratified the Optional Protocol. As it stands, these are: Argentina,
Bolivia, Bosnia and Herzegovina, Ecuador, El Salvador, Mongolia, Portugal,
Slovakia, Spain, and Uruguay. In addition, under Articles 10 and 11,
ratifying countries may permit the CESCR to receive inter-state complaints
against the country and to conduct inquiries into allegations of grave or
systemic violations of economic, social, or cultural rights by a state
party. Thus far, only El Salvador and Portugal have acceded to these
procedures.

Until now, the CESCR has been limited to issuing concluding observations
and recommendations to member countries as part of semi-regular country
reporting requirements in the ICESCR and to issuing broad general comments
on rights under the Convention – which have helped enumerate the content of
the rights under the ICESCR. With the Optional Protocol, the opportunity
will now exist at the global level to litigate and begin to develop more
concrete standards around the rights in the ICESCR – including the right to
of everyone to the enjoyment of the highest attainable standard of physical
and mental health (Article 12 of the ICESCR). There has been much written
and presented on the utility and feasibility of litigation around the right
to health and socio-economic rights more broadly. Many have argued that
socio-economic rights are inherently policy and financing decisions outside
of the capacity, competency, and practical limitations of courts such that
litigation in this area does little to vindicate rights on the ground.
Others have argued that litigation around socio-economic rights – when well
constructed – is capable of advancing both the understanding of the content
of socio-economic rights and have substantive effects on government
planning, resource allocation, and service delivery to individuals.

Importantly, there is an opportunity within the framework of the ICESCR and
the Optional Protocol, to also begin serious investigations into the social
determinants of health – determinants such as access to sufficient food,
water, sanitation, and education – and beyond the typical and narrower
construction of the right to health based in access to health care
services, even as Article 12 itself expressly encompasses many of these
determinants.
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