(2004; 45 pages)
The World Health Organization's Constitution and the Universal Declaration of Human Rights establish health as a human right. The International Covenant on Economic, Social and Cultural Rights specifies that the right to health includes the right to emergency care and the right to health facilities, goods and services. Authoritative comments by the Committee on Economic, Social and Cultural Rights have specified that the right to health facilities, goods and services includes the provision of essential medicines as defined by the World Health Organization. States parties to the Covenant are under immediate obligation to guarantee that the right to health will be exercised without discrimination and to take deliberate and concretesteps towards its full realization, with emphasis on vulnerable and marginalized groups. By the end of 2002, 142 countries had signed the Covenant, 83 countries had signed various regional human rights treaties and over 100 had incorporated the right to health in their national constitution. A country's ratification of an international treaty, such as the Covenant, creates certain state obligations to its people. But are these obligations enforceable in practice?
This study focuses on only one aspect of promoting the right to health: its enforceability within developing countries. Other very important measures to promote the right to health, such as advocacy, legislation, programming and reporting, are not considered here. The objective of the study was to identify, analyse and summarize court cases in developing countries in which individuals or groups have initiated a case against the government or a governmental institution, claiming access to essential medicines, fully or partly on the basis of human rights treaties signed and/or ratified by their government, and have won their case with (some) reference to the right to health. The study's ultimate goal was to identify success factors in these cases in order to support the use of legal redress mechanisms in other countries.
Twenty cases from seven countries (Argentina, Boliva, Colombia, Costa Rica, El Salvador, South Africa and Venezuela) were identified and are presented here.