What Does the Right to Health Mean?
| Published date | 01 September 2015 |
| Author | Claire Lougarre |
| Date | 01 September 2015 |
| DOI | 10.1177/016934411503300304 |
| Subject Matter | Part B: Article |
Netherlands Qu arterly of Human Ri ghts, Vol. 33/3, 326–354, 2015.
326 © Netherlands I nstitute of Human Rig hts (SIM), Printed in the Net herlands.
WHAT DOES THE RIGHT TO HEALTH MEAN?
THE INTERPRETATION OF ARTICLE 11 OF
THE EUROPEAN SOCIAL CHARTER BY THE
EUROPEAN COMMITTEE OF SOCIAL RIGHTS
C L*
Abstract
Social rights, and the right to health in particular, are still criticised for the
vagueness of their legal content . What does realising the right to health mean, and
when does a State breach its obligations under human rights law? Little research
has attempted to answer those que stions and key actors such as judges, States,
NGOs and individuals, continue to face a high degree of uncertainty. Clari cation
must be sought to improve the realisation of this right, but how? When human
rights supervi sory bodies evaluate the implementation of the right to health in their
monitoring procedures, they must d eclare whether or not this right has been realised ,
and justify why. By consequence, their inter pretation contributes to delineating the
legal content of this right. To overcome the dearth of literature on the subs tance of the
European Social Charter, this article will thu s examine how its supervisory body, the
European Committee of Social Rights, interprets the right to health in its reporting
and complaints procedures.
Keywords: Art icle11 of the European Social Cha rter; European Commit tee of Social
Rights; monitoring proc edures; right to health
1. INTRODUCTION
e right to health embrac es complex ethical, economic a nd legal issues, which tend
to question its justiciabil ity. While literature on the r ight to health has increa sed
signi cantly over the la st een years, very few publ ications clarif y what it means
* Lecturer i n Law, University of Southampton, Southa mpton Law School. I am extreme ly grateful to
Mr Colm O’Cinneide and Dr Je Ki ng for their comments and sug gestions on earlier dra s of th is
article, wh ich is also a chapter of my PhD t hesis undertake n at University College London, Fac ulty
of Laws. anks a lso to the members of ESRA N-UKI for their ever so u seful feedback .
What Does the R ight to Health Mean?
Netherlands Qu arterly of Human Ri ghts, Vol. 33/3 (2015) 327
and how it is implemented at the regional level. Regional sy stems of human rights
protection, nonetheless, represent considerable advantages a s outlined by Sarkin:
Consensus is easier to ach ieve because regions are o en relatively homogenous. As far
as their proces ses are concerned, reg ional systems for many reasons are more acce ssible,
cheaper for litigant s, and more e ective in the work they do than international courts.
ey are more lik ely to achieve greater enforceability of t heir decisions par tly because of
the politica l will, at least in some reg ions, to do so by the regional syst em itself.1
Human rights literature ha s paid considerable attention to the protection of economic,
social, and cu ltural rights in the Af rican and the Inter-American systems. Few authors,
however, have explored th e European S ocial Cha rter (ESC), 2 its mechani sms,3 and
even less, the legal content of the rights it ensh rines4 (including the right to health).5
Such dearth of literature is regrettable, as the Council of Europe (CoE) o ers better
enforcement potential on three aspe cts. First, the overal l high income of European State s
is essential to real ise rights such as health. S econd, the weight given to the jurisprudence
of the European Cour t of Human Rights can promote that of its sibling: t he European
Co mm it tee of Soc ia l R ig ht s (t he Eu rop ea n C om mi tte e). ird, the European Committee
has developed innovative met hodologies to monitor the right to hea lth, such as indicators
and averages, which no other human r ights system seems to be using.
When a human rights body e valuates the implementation of the rig ht to health
through its monitori ng procedures, it e ectively del ineates the legal content of this
right, as it must declare whet her or not the latter is realise d, and justif y why. In an
attempt to clarif y the legal content of the right to healt h in the CoE, this article w ill
thus study the interpretat ion of Article 11 ESC by the European Commit tee.6 is
1 J. Sarkin, ‘ e Role of Regiona l Systems in Enforcing Stat e Human Rights Complia nce: Evaluating
the Africa n Commission on Human a nd People’s Rights and the New Afr ican Court of Justic e and
Human Right s with Comparat ive Lessons from t he Council of Europe and the Orga nization of
American Stat es’ (2008) 1 Inter-American and Euro pean Human Rights Journa l 199, 209–210.
2 See for instanc e D.J. Harris, ‘A Fresh Impetus for t he European Soc ial Charte r’ (1992) 41 e
International a nd Comparative Law Quarter ly 659.
3 See for instanc e R.R. Churchil l and U. Khaliq, ‘ e Collect ive Complaints System of th e European
Social Charter: An E ective Mecha nism for Ensurin g Compliance wit h Economic and Soc ial
Rights?’ (2004) 15European Journal of Inter national Law 417; Ph. Alston, ‘Assessing t he Strengths
and Weaknesse s of the European Socia l Charter’s Supervisor y System’ in G. de Búrca, B. de Witt e
and L. Ogert schnig (eds), Social Rights In Europe (OUP 2005); J.-F. Akandji-Kombé, ‘ e Mater ial
Impact of the Jurisprudence of the European Committee of Social Rights’ in G. de Bú rca, B. de
Witte and L. Oger tschnig (eds), Social Right s In Europe (OUP 20 05).
4 See for instanc e M. Mikkola, ‘ Social Human R ights of Migra nts under the Europe an Social Cha rter’
(200 8) 10European Journ al of Social Securit y 25.
5 e only paper available on the right to he alth in the ESC is: H . Roscam Abbing, ‘ e Ri ght to Care
for Health: e Cont ribution of the Eu ropean Soci al Charter’ (2005) 12European Journal of Health
Law 183.
6 European Soci al Charter 1961 (adopted 18October 1961, entered into force 26Febru ary 1965) CETS
No 035, Article11; Europea n Social Charter (as Ame nded) 1996 (adopted 3May 1996, entered into
force 1July 1999) CETS No 163, Art icle11.
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