ABSTRACT
The right to health is not an entitlement to individual good health,18 but ensures that States provide citizens with certain conditions essential for achieving good health. Article 12(1) of the ICESCR provides that ‘[t]he 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 highest attainable standard of health depends on resource allocation and on evolving social perception of what constitutes a healthy lifestyle.19 The provision enumerates four steps to give effect to the protection of the right to health. States must act to enhance the welfare of children in general, such as reduction in stillbirth rate and infant mortality, and the health development of the child. States must take measures to improve environmental and industrial hygiene. They must prevent and treat epidemic, endemic, occupational and other diseases. Contracting States must also strive to optimise health services. There remains the question whether these four areas are exhaustive. Given that human rights treaties are of a law-making character as opposed to a contracting treaty as understood in traditional international law, and that they purport to give fuller effectiveness to their guarantee, it is essential that wide ranging and socially evolving matters affecting health be encompassed within Art 12.20
It is possible to consider that a number of rights enumerated in the Universal Declaration of Human Rights have become customary law principles. If one accepts that the right to health could, for all the ambiguity surrounding its definition and the scope of application, be regarded as a customary international law norm, all States, including those that have yet to ratify the ICESCR and other treaties guaranteeing the right to health, would be bound to accord effect to this right by adopting legislative or other appropriate action. Judge Weeramantry, in his dissenting opinion in the advisory opinion by the International Court of Justice (ICJ) on the Legality of the Use of Nuclear Weapons, took the view that State duties in relation to health can be recognised as binding international law. He assimilated State obligations in respect of the right to health to environmental obligations,
18 Taylor, AL, ‘Making the World Health Organization work: a legal framework for universal access to the conditions for health’ (1992) 28 Am JL & Med 301.
