Right to Health in Contexts of Resource Scarcity: Towards Judicial Enforcement of the Right to a Fair Share

21 Pages Posted: 25 Jun 2015

See all articles by Siri Gloppen

Siri Gloppen

Chr. Michelsen Institute (CMI); University of Bergen - Department of Comparative Politics

Date Written: May 15, 2015

Abstract

Almost all states have ratified international documents committing them to secure the right to “the highest attainable standard of physical and mental health” for all their citizens, and obliging them to pursue this to the maximum of available resources. A growing number of countries have similar commitments in their national constitutions. But what does this mean in practice in terms of health service delivery? What do individuals living in conditions of resource scarcity have a right to? And can this right be meaningfully enforced thorough courts?

This article argues that courts can and should enforce the right to health services, not least in conditions of radical resource scarcity. This requires, however, that the right to health be conceptualized as “the right to a fair share” of the maximum health services that can be provided within available resources. To be able to enforce this effectively, judges must engage the thinking around fair priority setting in health, and seek ways to enforce the right to health that look beyond the individual case and addresses the structural causes of the violations that are placed before them. Commitments to move towards Universal Health Coverage provide opportunities for doing so – and makes judicial engagement urgent. For courts to fill the accountability functions needed to advance the right to health, dialogical approaches are needed, where judges engage health authorities and other stakeholders.

Keywords: right to health, universal health coverage, priority setting in health

Suggested Citation

Gloppen, Siri and Gloppen, Siri, Right to Health in Contexts of Resource Scarcity: Towards Judicial Enforcement of the Right to a Fair Share (May 15, 2015). Available at SSRN: https://ssrn.com/abstract=2622779 or http://dx.doi.org/10.2139/ssrn.2622779

Siri Gloppen (Contact Author)

University of Bergen - Department of Comparative Politics ( email )

Christiesgate 15
Bergen, N-5007
Norway

Chr. Michelsen Institute (CMI) ( email )

P.O.Box 6033 Bedriftssenteret
N-5892 Bergen, 5006
Norway

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