Chapter 2 - The Right to Health Care as a Human Right

Summary

INTRODUCTION

Part 1 of this thesis lays the foundation for the implementation of the right to health care in China. As discussed in chapter 1, the right to health care, as one of the key aspects of the broader framework of the right to health, has been firmly established under various international and regional human rights treaties as well as national constitutions. A wide range of legal documents and reports clarifying the normative content of the right to health care has also been adopted over the past two decades. These key developments have made the right to health care a rather well-defined norm under international human rights law. This has, however, not resulted in the effective and full implementation of the right to health care at the domestic level. To address this lacuna, the main focus of this study is on the effective domestic implementation of the right to health care.

A first step towards enhancing the effective implementation of this right concerns the legal recognition of the right to health care in national constitutions and in other domestic legislation. In addition to taking legislative measures, other administrative, financial, educational and social measures, which often have the nature of policy, are also sought-after. Therefore, part 1 of this thesis first delineates the obligations that States parties undertake to give effect to the right to health care and evaluates the status quo of the legislative and policy measures China has taken to realise this right. By doing so, this part can identify the gaps between de jure and de facto implementation of the right to health care in China.

Chapter 2 does not aim to provide an exhaustive analysis of all contentious issues involved in the debate surrounding the definition of the right to health. Rather, the aim of this chapter is to set the stage for the analysis of the implementation of the right to health care in China. It does so by answering two simple questions: what does the right to health care mean and what does the right to health care entail?

To answer these questions, it is necessary to have a clear picture of the various components of the right to health care, and of its underlying normative tools. To identify these elements, I have made a secondary data analysis of primary legal documents, reports and publications addressing the right to health (care).