Introduction
The recognition and respect of human rights are the foundation of a democratic social living and express the popular pressure upon the state’s power or upon those who exercise state’s power to the development of better ways and standards of living. The legal recognition of universal human rights that shall be observed by democratic states, as well as the institutional arrangement that allows the exercise of these rights by the people, must be a constant object of improvement in modern societies, in order to permit the balancing between the sovereign wishes –people’s wishes, in the republican democracies– and the limits and forms of state’s power exercise by governments.
According to the established democracy related literature, the process of rights institutionalization in modern occidental societies followed a chronological incorporation of civil, political and social rights, in this order. The society’s historical construction and its legal and institutional framework have been chronologically incorporating those rights in a movement where the most recent recognized rights correspond to the less consolidated institutional forms of recognition and incorporation. Actually, social rights, as the right to health, constitute a domain in which democratic institutions present their major fragility.
In this context, the right to health has been recognized as a social right in several countries, but it still makes part of a recent reality in early stages of development. To promote its effectiveness, it is necessary to have what we call as sanitary democracy. Right to health, health equity and democratic living would be strengthened by the dissemination of democratic values, the respect of rights, institutions and procedures involved in their structuring and by democratic decision-making process.
In this way, the democratic living would be strengthened by the dissemination of democratic values –the respect of rights and institutions and procedures involved in their structuring– and by the decision making process functioning. The one and the other, values and procedures, must be exercised in all social life extent.
In Brazil, right to health was recognized by 1988 Constitution as a universal right and a state’s duty. Different countries have different ways of recognizing health as a universal right, and also have different ways of implementing efforts to fulfill this right.
In order to investigate and analyze the incorporation of right to health in different countries, this paper will present the partial results of an international research called Right to Health and Health Democracy: Bridges to Citizenship, that has as main objective understand how right to health is legally recognized and fulfilled by democratic states with high level of economic development – Brazil, China, India, South Africa and Russia.
Methods
The research methods involves theoretical and empirical studies based in legal and formal state’s documents and in international literature. The methodological approaches observe the needs of an interdisciplinary, inter-institutional and multi-centric exchange of knowledge and abilities in academic centers of Brazil, China, Russia, India and South Africa. The research also involves the identification of the legal and theoretical conceptual frameworks that gives the basis to an international comparative study in health law.
The conceptual frameworks
The two main frameworks researched were the legal and the theoretical conceptual frameworks on health law.
The main legal conceptual framework is set on the 1946 WHO’s (World Health Organization) Constitution that establishes health as a human right and a government responsibility (WHO 1946).
In 1966, the International Covenant on Economic, Social and Cultural Rights (UN, 1966), reassured health as a human right and stated that, to promote it, countries should prioritize specific health policies. The Article 12 of the Covenant recognizes the right of everyone to “the enjoyment of the highest attainable standard of physical and mental health.” States must protect the right to health by ensuring that everyone within their jurisdiction has access to the underlying determinants of health, such as clean water, sanitation, food, nutrition and housing, and through a comprehensive system of health care, which is available to everyone without discrimination, and economically accessible to all. The same article requires states to take specific steps to improve the health of their citizens, including reducing infant mortality and improving child health, improving environmental and workplace health, preventing, controlling and treating epidemic diseases, and creating conditions to ensure equal and timely access to medical services for all (UN, 1966).
It must also be mentioned as legal frameworks the International Conference on Primary Health Care (PAHO, 1978) and the First International Conference on Health Promotion (WHO, 1986). These legal documents stated that health is the most important world-wide social goal, demanding to all countries actions of fulfill people’s health needs by promoting public health policies and intersectoral public policies.
Recently, the Commission on Social Determinants of Health (Jong-wook, 2005) and the Rio Political Declaration on Social Determinants of Health (WHO, 2011) stated that improvement of global health depends on equitable and effective health systems and on coordinated and intersectoral policy actions involving other sectors besides the health sector.
Brazil has incorporated health as a universal right in its 1988 Constitution, establishing it as a Brazilian state’s duty. It is also in the Constitution, that to assure the right to health, the state must develop social and economic policies aiming to reduce risks of diseases and to promote equal access to public services organized to promote, prevent and recover health (Brazil, 1988).
The theoretical conceptual framework on health law comparative research is based specially on studies that deals with health litigation and the phenomenon of health rights litigation and its consequences (Yamin & Gloppen, 2011; Gargarella et al. 2006; Langford, 2008; Gauri & Brinks, 2008).
Gloppen and Roseman (2011), explored under which circumstances health right litigation is a good thing, and for whom. As right-to-health litigation the authors consider that the cases must be framed in terms of a violation of a legal rule or right, especially the right to health. They include in the universe of right to health litigation cases that: make claims based on a constitutional right to health (or related right) or an internationally recognized human right to health; concern access to health facilities, goods, and services (including medication); or concern the underlying preconditions of health, such as rights to food, water, sanitation, safe and healthy working conditions and a healthy environment (Gloppen & Roseman, 2011).
Another conceptual approach on right to health in courts was given by Gargarella et al. in the study called Courts on Social Transformation in New Democracies: An Institutional Voice for the Poor?. The main concern was to understand how courts cam be relevant to concerns of poor and marginalized individuals and communities (Gargarella et al. 2006).
Malcolm Langford (2008) also developed a study on the theme by analyzing social rights jurisprudence. The study, called Social Rights Jurisprudence: Trends in International and Comparative Law, demonstrates the variety of social rights that have been litigated and brings some lights on the role that courts have to address breaches of these rights and establish accountability for the promotion and protection of, among other rights, health, education and housing (Langford, 2008).
Gauri and Brinks (2008) conclude, in their Courting Social Justice study, that, on balance, the effects os social rights litigation are positive. With the possibility of litigation, social goods can be redistributed to those who need them, even though those who use the courts and benefit from their judgments are, in general, not the elites (who don’t need to seek for public health services) nor the most vulnerable and excluded
