The Hon. Michael Kirby AC CMG is an international jurist, educator and former judge, including as President of the New South Wales Court of Appeal and as Justice of the High Court of Australia. His recent international activities have included member of the Eminent Persons Group on the Future of the Commonwealth of Nations (2010-11); Commissioner of the UNDP Global Commission on HIV and the Law (2011-12); Chairman of the UN Commission of Inquiry on DPRK (North Korea) (2013-14); and Member of the UN Secretary-General’s High Level Panel on Access to Essential Healthcare (2015-16). He is also heavily engaged in international arbitrations; domestic mediations; and teaching law.
I offer my commentary on John Tasioulas’s theoretical exposition of “Minimum Core Obligations: Human Rights in the Here and Now”. My views are very similar to those expressed by Professor Tasioulas. Essentially, they involve a close analysis of the textual language of the relevant international instruments that constitute the foundation of the international law of human rights, as it extends to the ‘right to health’. They also involve consideration of contextual matters, matters of history and matters of legal policy.
The textual foundations are to be found in the WHO Constitution of 1946, the Universal Declaration of Human Rights 1948 (UDHR), article 25; the International Covenant on Economic Social and Cultural Rights 1966 (ICESCR), article 12, and the General Comment number 14 on the ICESCR of 2000.
The supposed difficulty in establishing an individual right to (unspecified) standards of healthcare is that, unlike other clauses in the International Bill of Rights, the language of article 12 of the International Covenant on Civil and Political Rights (ICESCR) is expressed in terms of what the States parties “recognise” and agree that what they recognise is to be attained in a particular way, namely by “steps to be taken… to achieve the full recognition of this right”. This differentiation in expression, when compared for example to the language of the ICCPR, has been invoked to suggest that the ‘right to health’ is not an individual right, enforceable against the duty bearing state on the initiative of the right enjoying individual. It is merely a hortatory expression, equivalent to stating that the nation states of the world will “do their best” to provide healthcare to their citizens and others. Such a view would be seriously detrimental to an entitlement that, in practical terms, is one of the most important and urgent amongst the claims that human beings assert, and feel the need of. The right to health and to life are central to human existence. It would defy the logic of including references to the right to health in the context of the International Bill of Rights to downgrade it. It would not be consistent with subsequent developments of international law and policy, including the adoption of the United Nations Strategic Development Goals, 2015 (SDGs).
An argument against acceptance of ‘minimum core obligations’ in relation to the human right to health is that such an expression does not appear in any of the foregoing core documents. Thus it is said that it lacks an express foundation upon which to build such an important asserted right. However, it is common in legal analysis to derive meaning not only from express provisions but also from provisions which are necessarily implied in the express provisions of the text under examination. This is especially so in the case of a text which is designed to express the universal human rights of everyone, everywhere, at all times and in respect of all activities of humankind in all of its variety. In such texts it is not surprising that there will be implications. Implications are inherent in any textual analysis. The lack of an exact explicit textual source for the asserted minimum core obligations is not, therefore, fatal to their existence otherwise, as derived from a close analysis of the textual foundation together with the consideration of all other relevant factors.
The central concept that gives rise to the ‘minimum core obligations’ is a recognition of the fact that the obligations imposed on nation states commenced immediately that the treaty establishing those obligations came into force in international law in respect of the nation concerned or alternatively in respect of a sufficient number of the nations that have ratified the treaty, so as to bring the treaty into operation as a source of international law. In the case of the ICESCR, it was adopted and opened for signature, ratification and accession by General Assembly Resolution 2200 A (XXI) of 16 December 1966. In accordance with article 27, it entered into force on 3 January 1976. Therefore, at least from the date upon which the ICESCR came into force (1976), and possibly earlier, the obligation has been imposed, certainly on States Parties, in accordance with article 2.1 to “take steps individually and through international assistance and cooperation, especially economic and technical, to the maximum of its available resources, with a view to achieving progressively the full realisation of the rights recognised in the present Covenant by all appropriate means, including particularly the adoption of legislative measures”.
Moreover, in article 2.2 the States Parties… “Undertake to guarantee that the rights enunciated in the present Covenant will be exercised without discrimination of any kind as to race, colour, sex, language, religion, political or other opinion, national or social origin, property, birth or other status.’’ This is a machinery provision. It implies that rights are already being accumulated and must be exercised in the particular ways stated.
Such provisions of the ICESCR clearly envisage that rights will begin to exist under the treaty, at the latest when it comes into force. They will be progressively enlarged over time thereafter, both by the action of individual State Parties and by the collective action of all States Parties.
It follows that, since at least 3 January 1976, in respect of the individual States Parties or the collectivity of all States Parties (even possibly all States although not yet parties), the progressive realisation of rights has been begun, is happening, is continuing to evolve and is intended to so evolve. It has content and substance and this is ultimately discoverable.
From this it follows logically that there is no State Party which, in 2018, in the here and now, begins with a blank page so far as the right to health is concerned. That right has been progressively evolving since being adopted by the community of States Parties of the world. Accordingly there is already, in the world, a necessarily varying degree of achievement of the right to health. But no State (certainly no State Party to the ICESCR ) is now in the position that it has lawfully done nothing. That would be a breach of the obligation imposed by article 2.1 and of the assumption expressed in article 2.2.
This is why it is permissible, by this analysis, to recognise that the evolution that has been happening has given rise to varying but nonetheless real and substantive attempts by the States Parties to achieve at least some of the attributes inherent in the right to health expressed in article 12. It will vary. Its precise contents will be disputable. But it has substance and it is discoverable.
Given that it is now 42 years since the ICESCR entered into force and became part of international law, it follows that there is already a body of compliance with the obligations of articles 2 and 12, varying though that compliance may be from state to state. Sometimes the variation will be a result of the individual state’s lack of appropriate means to realise the right. Sometimes it will be the result of the lack of international assistance and cooperation. Sometimes it will be nothing more than the lack of proper attention by the state to the duty which it has assumed in articles 2.1 and 12. It is both necessary and appropriate to break down the various explanations as to why states have (and have not) progressively realised attributes of the right to health, as they have promised to do by article 2.1. That promise is not just an empty phrase. It does not permit a Nation State which is a party to the ICESCR to do nothing and to treat its obligations as wholly meaningless, non-binding or non-justiciable. The obligation assumed is a real one in a real treaty that imposes real obligations in international law.
Once this reasoning has taken analysis to this point, it is both reasonable and appropriate to examine the extent of the progressive achievement of the right to health promised by the Nation State by breaking down that obligation into the question whether what can now be seen as minimum core obligations have been realised or not. Adopting this approach has the advantage of encouraging a timetable for the states of the international community, doubtless a timetable that is partly universal and partly dependent on the “available resources” and any “technical assistance” available to the state concerned.
The adoption of the SDGs by unanimous decision of the General Assembly of the United Nations in 2015 lends credence to this analysis. It envisages universal achievement of specified goals some of which are there spelt out. Relevant to the right to health, these are set out in SDG 3. They are not inconsistent with the ICESCR rights and obligations. On the contrary, they are an indication that substantive and real goals are to be identified by the international community and to be achieved, in some cases by all countries.
Looking back, then, at the language of the ICESCR that expresses the requirements of international law, it is a necessary, certainly available, analysis of the right to health that is there stated that it will contain minimum core obligations that all Nation States are to achieve now for the fulfilment of the rights of individuals (citizens and otherwise) for whom the Nation State is responsible.
There is also a practical or policy reason for supporting this analysis. This is that it encourages the type of approach that is reflected in the SDGs: the fixing of targets, the expression of achievable goals, and the fulfilment of the real needs of individual human beings in what Professor Tasioulas has aptly described as the “here and now”. If it were otherwise, the right to health as stated in the WHO Constitution of 1946, and as expressed in the UDHR of 1948, article 25 and as envisaged in the ICESCR of 1966, which came into force in 1976, would be no more than political sloganeering and national posturing. Given the circumstances at the conclusion of the ‘’great and terrible war‘’ that gave birth to the United Nations Charter of 1945 and the foregoing provisions of other international instruments (including the International Bill Of Rights) it should not be assumed that the right to health, so important to human beings everywhere at all times, is so meaningless and devoid of real content.
These are the textual, contextual, historical and policy reasons why I support the assertion by Professor Tasioulas that a proper construction of contemporary international law supports the existence (‘In the here and now’) of minimum core obligations of the right to health. The challenge therefore becomes that of giving content to the concept. It is not whether the concept exists, is viable, is consistent with the applicable international law and should of necessity, be spelt out of that law so that the norms of international law are given real operation for often vulnerable people.
Professor Tasioulas has given a proper legal interpretation to the relevant source of international human rights law. Moreover, he has given that law meaning so that it fulfils its purpose and reflects the urgency of the right in question, especially since the adoption of the SDGs.