Health Care Reform: A Human Rights Approach

JACK DONNELLY

The right to health care is firmly entrenched in the major international human rights documents. For example, Article 25(1) of the Universal Declaration of Human Rights declares "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...". Likewise, Article 12 of the International Covenant on Economic, Social and Cultural Rights recognizes the right to "the enjoyment of the highest attainable standard of physical and mental health. ... [including] the creation of conditions which would assure to all medical service and medical attention in the event of sickness." ¹ These two documents, along with the International Covenant on Civil and Political Rights, are the principal international documents in the field of human rights.

These obligations have been accepted by most countries. For example, over 90 states, including most of the countries of Europe (most of which also accept more detailed regional health care obligations through the European Social Charter), are parties to the Covenant. The United States, by contrast, is not a party to the Covenant or to any other international legal instrument that recognizes a right to health care.

International law, however, should not be seen as a solution, or even very much help, in reforming the United States health care system. With very few exceptions, obligations in international law are voluntary. This is most evident in the case of treaties, executive agreements, and similar instruments, which are the principal source of contemporary public international law. States are free to chose to become a party to a treaty or not. A state that chooses not to recognize a right to health care violates no international legal obligation. And even if it did, there is the notorious problem of enforcing public international law. For example, the international "enforcement" provided by the Covenant extends no further than the requirement to

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