The legal basis for the right to health can be found in four types of sources, which are listed below:
- International Human Rights Treaties
- Regional Human Rights Treaties
- National Constitutions
- Other Declarations
International Human Rights Treaties
Conventions, covenants or protocols are legally binding on states that ratify them. Once a state has ratified a human rights convention it is legally bound to the obligations imposed by the convention. This means that the states parties have to include the human rights standards as defined in the convention, covenant or protocol, in domestic laws and policies.
It is allowed to make a reservation to a specific paragraph or section of the treaty ratified. By making the reservation the states parties are not legally bound to that specific paragraph or section. Many reservations made by countries are related to health-related issues or concern women, using religious or cultural reasons. The status of ratifications, reservations and declarations can be found in the United Nations Treaty Collection.
The right to health is mentioned in the following international human right treaties (relevant sections below, with link to the full treaty text):
- Covenant on Economic, Social and Cultural Rights, 1966 (CESCR)
- Convention on the Elimination of all forms of Racial Discrimination, 1965 (CERD)
- Convention on the Elimination of all forms of Discrimination against Women, 1979 (CEDAW)
- Convention on the Rights of the Child, 1989 (CRC)
- Convention on the Protection of the Rights of All Migrant Workers and Members of their Families, 1990 (ICMRW)
- Convention on the Rights of Persons with Disabilities, 2006 (CRPD)
Covenant on Economic, Social and Cultural Rights (CESCR), 1966 (download)
- 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 steps to be taken by the States Parties to the present Covenant to achieve the full realization of this right shall include those necessary for:
(a) The provision for the reduction of the stillbirth-rate and of infant mortality and for the healthy development of the child;
(b) The improvement of all aspects of environmental and industrial hygiene;
(c) The prevention, treatment and control of epidemic, endemic, occupational and other diseases;
(d) The creation of conditions which would assure to all medical service and medical attention in the event of sickness.
General Comment 14, issued by the Committee on Economic, Social and Cultural Rights in 2000, provides a framework with which the right to health can be understood and enforced.
Convention on the Elimination of all forms of Racial Discrimination (CERD), 1965 (download)
Article 5 (e) (iv)
Economic, social and cultural rights, in particular: The right to public health, medical care, social security and social services.
Convention on the Elimination of all forms of Discrimination against Women (CEDAW), 1979 (download)
Article 11 (1) (f)
States Parties shall take all appropriate measures to eliminate discrimination against women in the field of employment in order to ensure, on a basis of equality of men and women, the same rights, in particular: the right to protection of health and to safety in working conditions, including the safeguarding of the function of reproduction.
Article 12 (1)
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.
Article 14 (2) (b)
States Parties shall take all appropriate measures to eliminate discrimination against women in rural areas in order to ensure, on a basis of equality of men and women, that they participate in and benefit from rural development and, in particular, shall ensure to such women the right: to have access to adequate health care facilities, including information, counselling and services in family planning;
Convention on the Rights of the Child (CRC), 1989 (download)
- 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.
- States Parties shall pursue full implementation of this right and, in particular, shall take appropriate measures:
(a) To diminish infant and child mortality;
(b) To ensure the provision of necessary medical assistance and health care to all children with emphasis on the development of primary health care;
(c) To combat disease and malnutrition, including within the framework of primary health care, through, inter alia, the application of readily available technology and through the provision of adequate nutritious foods and clean drinking-water, taking into consideration the dangers and risks of environmental pollution;
(d) To ensure appropriate pre-natal and post-natal health care for mothers;
(e)To ensure that all segments of society, in particular parents and children, are informed, have access to education and are supported in the use of basic knowledge of child health and nutrition, the advantages of breastfeeding, hygiene and environmental sanitation and the prevention of accidents;
(f) To develop preventive health care, guidance for parents and family planning education and services.
- States Parties shall take all effective and appropriate measures with a view to abolishing traditional practices prejudicial to the health of children.
- States Parties undertake to promote and encourage international co-operation with a view to achieving progressively the full realization of the right recognized in the present article. In this regard, particular account shall be taken of the needs of developing countries.
General Comment No. 15 (2013) offers extensive guidance on how to interprete article 24.
Convention on the Protection of the Rights of All Migrant Workers and Members of their Families (ICMRW), 1990 (download)
Migrant workers and members of their families shall have the right to receive any medical care that is urgently required for the preservation of their life or the avoidance of irreparable harm to their health on the basis of equality of treatment with nationals of the State concerned. Such emergency medical care shall not be refused them by reason of any irregularity with regard to stay or employment.
Article 43 (e)
Migrant workers shall enjoy equality of treatment with nationals of the State of employment in relation to: access to social and health services, provided that the requirements for participation in the respective schemes are met;
Article 45 (c)
Members of the families of migrant workers shall, in the State of employment, enjoy equality of treatment with nationals of that State in relation to: access to social and health services, provided that requirements for participation in the respective schemes are met.
Convention on the Rights of Persons with Disabilities (CRPD), 2006 (download)
States Parties recognize that persons with disabilities have the right to the enjoyment of the highest attainable standard of health without discrimination on the basis of disability. States Parties shall take all appropriate measures to ensure access for persons with disabilities to health services that are gender-sensitive, including health-related rehabilitation.
Regional Human Rights Treaties
Several regional human rights instruments also recognize the right to health:
- African Charter on Human and Peoples’ Rights
- Protocol to the African Charter on Human and People’s Rights on the Rights of Women in Africa
- African Charter on the Rights and Welfare of the Child
- European Social Charter
- Additional Protocol to the American Convention on Human Rights in the area of Economic, Social and Cultural Rights
African Charter on Human and Peoples’ Rights (download)
Every individual shall have the right to enjoy the best attainable state of physical and mental health. States parties to the present Charter shall take the necessary measures to protect the health of their people and to ensure that they receive medical attention when they are sick.
Protocol to the African Charter on Human and People’s Rights on the Rights of Women in Africa
Article 14 – Health and Reproductive Rights
- States Parties shall ensure that the right to health of women, including sexual and reproductive health is respected and promoted. This includes:
(a) the right to control their fertility;
(b) the right to decide whether to have children, the number of children and the spacing of children;
(c) the right to choose any method of contraception;
(d) the right to self protection and to be protected against sexually transmitted infections, including HIV/AIDS;
(e) the right to be informed on one’s health status and on the health status of one’s partner, particularly if affected with sexually transmitted infections, including HIV/AIDS, in accordance with internationally recognized standards and best practices;
(f) the right to have family planning education.
- (a) provide adequate, affordable and accessible health services, including information, education and communication programmes to women especially those in rural areas;
(b) establish and strengthen existing pre-natal, delivery and post-natal health and nutritional services for women during pregnancy and while they are breast-feeding;
(c) protect the reproductive rights of women by authorizing medical abortion in cases of sexual assault, rape, incest, and where the continued pregnancy endangers the mental and physical health of the mother or the life of the mother or the foetus.
African Charter on the Rights and Welfare of the Child (download)
Article 14 – Health and Health Services
- Every child shall have the right to enjoy the best attainable state of physical, mental and spiritual health.
- State Parties to the present Charter shall undertake to pursue the full implementation of this right and in particular shall take measures:
(a) to reduce infant and child mortality rate;
(b) to ensure the provision of necessary medical assistance and health care to all children with emphasis on the development of primary health care;
(c) to ensure the provision of adequate nutrition and safe drinking water;
(d) to combat disease and malnutrition within the framework of primary health care through the application of appropriate technology;
(e) to ensure appropriate health care for expectant and nursing mothers;
(f) to develop preventive health care and family life education and provision of service;
(g) to integrate basic health service programmes in national development plans;
(h) to ensure that all sectors of the society, in particular, parents, children, community leaders and community workers are informed and supported in the use of basic knowledge of child health and nutrition, the advantages of breastfeeding, hygiene and environmental sanitation and the prevention of domestic and other accidents;
(i) to ensure the meaningful participation of non-governmental organizations, local communities and the beneficiary population in the planning and management of basic service programmes for children;
(j) to support through technical and financial means, the mobilization of local community resources in the development of primary health care for children.
European Social Charter (download)
Article 11 – The right to protection of health
With a view to ensuring the effective exercise of the right to protection of health, the Contracting Parties undertake, either directly or in co-operation with public or private organisations, to take appropriate measures designed inter alia:
- to remove as far as possible the causes of ill-health;
- to provide advisory and educational facilities for the promotion of health and the encouragement of individual responsibility in matters of health;
- to prevent as far as possible epidemic, endemic and other diseases.
Additional Protocol to the American Convention on Human Rights in the area of Economic, Social and Cultural Rights (download)
Article 10 – Right to Health
- Everyone shall have the right to health, understood to mean the enjoyment of the highest level of physical, mental and social well-being.
- In order to ensure the exercise of the right to health, the States Parties agree to recognize health as a public good and, particularly, to adopt the following measures to ensure that right:
(a) Primary health care, that is, essential health care made available to all individuals and families in the community;
(b) Extension of the benefits of health services to all individuals subject to the State’s jurisdiction;
(c) Universal immunization against the principal infectious diseases;
(d) Prevention and treatment of endemic, occupational and other diseases;
(e) Education of the population on the prevention and treatment of health problems, and
(f) Satisfaction of the health needs of the highest risk groups and of those whose poverty makes them the most vulnerable.
Article 11 Right to a Healthy Environment
- Everyone shall have the right to live in a healthy environment and to have access to basic public services.
- The States Parties shall promote the protection, preservation, and improvement of the environment.
Constitutional protections of health
The WORLD Policy Analysis Center provides access to global research, data, and maps for sharing ideas and resources on social policies from around the world. On the website www.worldpolicycenter.org global maps can be found that show which countries have created constitutional protections of health. These maps demonstrate whether governments guarantee the rights to health, public health, and/or medical services in their nations’ constitutions.
Next to the international treaties there are several declarations which pay attention to the right to health or specific aspects of the right to health. Although these declarations are legally non-binding instruments they are reached by consensus and provide useful guidance. Compared to the legally binding treaties they provide often a more detailed interpretation of the meaning of the right to health.
Some of the most important declarations paying attention to the right to health or specific aspects of this right are: