The Right To Health Protection Under International Human Rights Law As The Domain

Between the end of the 20th century and the beginning of the 21st century, human rights and health, almost at the same time, are brought into the forefront of the world. With the outbreak of a large-scale anti-globalization and anti-WTO protest during the ministerial meeting of WTO in Seattle in1999 as a start, from Geneva, New York, Montreal to Tokyo, nearly all the international conferences concerning trade and financial issues would confront a large number of anti-globalization protesters. International economic organizations and human rights, in particular WTO and human rights, becomes a hot area of international economic law, which the impact of WTO on right to health and environmental is the most prominent.At the same time, Action Plan for the Ministry of Health v. organization in South African in 2001 has aroused worldwide attention and greatly accelerated the development of economic, social and cultural rights, the second generation of human rights. Meanwhile, SARS outbreak in 2003 and the following series of public health incidents triggered the global health crisis and caused the public's further concern of the global market and public health. In China, after the 1993 constitution amendment, in which the status of the socialist market economy clearly defined, in 2004, respecting and protecting human rights becomes a part of the constitution. Nowadays the People's Livelihood Building is the theme of the time and in the Party's 17th Report, the Party made the solemn commitment Medical Care for All.The occurrence of those incidents in the international and domestic arena in history is not by accident, but the reflection of the effect of global market on right to health. Therefore, establish the interaction between the market and right to health, and carry out the current medical service reform by the new right approach has great significance.Issues such as how right to health is defined, what role WTO, the World Bank and WHO play in the protection of right to health, what mechanism the current regional human right organizations provide in the protection of right to health, how different countries protect right to health and what role the protection of right to health plays in Chinese medical reform, grow to be core issues in the realization of right to health in international human right law as well as in the direction of Chinese medical reform and the enjoyment of right to health. Study of these questions is of great theoretical and practical value.In this dissertation, the author, by taking comprehensive approaches, studies on the protection of right to health in the world, the region and the states. In view of the theory of right to health, on the basis of present social reality and legal situation in China, the author tries to provide legislative advice on construction of the system of right to health in China. This dissertation consists of five chapters, in total 150 thousand words approximately.Chapter one expounds on the basic issues of right to health. This chapter focuses on the definition, the structure and morphology, the international standards and the historical evolution of right to health. First, the defintion of right to health is defined as the enjoyment of service of an effective and comprehensive health system and then the nature of right to health is reavealed, which lies in the requirement of resources allocation, the stress of individual participation and the strengthening of legal responsibility. Then, the structure and morphology of right to health is analysized, three types of structures in right to health are exhibited, including the highest possible - limited resources structure, legislative - judicial power structures, as well as security - production - financial - knowledge power structure, and rich forms of right to health in different laws are displayed. Besides, two series of prevailing standards in the current international law are pointed out. The first series of standards is centered on medical service and the second on the state's obligation. The last part of the chapter combs the historical evolution of right to health, from domestic and international level, dividing the evolution into three periods. In the 21st century, it steps into a quick development stage.Chapter two exhibits the structural effect of the world international organizations on protecting right to health, on the basis of the international political and economic theory. On power structure theory as an analysis tool, this chapter has broken through the traditional human right paradigm between state and human rights, makes use of four type of power, comprised of security, production, finance and knowledge, makes further study of the structural effect of WTO, the World Bank, WHO and other international organizations on right to health impact, and reveals the impact of the state and market forces on the protection of right to health.Chapter three deals with the protection of right to health in Europe and the Americas. By detailed analysis of a large number of cases, the dissertation proves the justifiability of right to health. It first deals with analysis and comparison between protections of right to health provided by European Social Charter and European Convention on Human Rights, pointing out that the judicial protection of right to health includes two methods, direct one and integration method. Carrying out in-depth analysis on cases in the collective complaint mechanism and cases under Article eight in European Human Rights Treaties, it concludes that the trend to protection of right to health has being strengthened in Europe. Then it analyzes protection of right to health under Charter of the Americas and American Convention on Human Rights and makes deep analysis of protection in Inter-Americas centered in the Inter-American Commission on Human Rights, which is considered as the engine of the Inter-American human rights system. It points out, given its comprehensive jurisdiction over social rights, the commission has developed a growing case-based jurisprudence on right to health. The cases dealed with by the commission include three types right to health of indigenous cases, right to prisoners' health and access to medicines.Chapter four analyses protection of right to health in countries. It makes deep analysis and comparison in protection of right to health in different countries, mainly from the legislative and judicial protection. The legislative protection part is directed toward providing for health rights protection in constitutions and health systems, while the judicial protection part is focused on principles established by South African Constitutional Court, including the principle of the priority allocation, cost-effective principle and the principle of the right to emergent medical treatment and the contradiction in the Supreme Court of Canada. In addition, it deals with the attitude change towards right to health, the debate, as well as the tendency in 21 century in the United States. It then concludes that establishing the constitutional right to health is necessary to realize the protection of right to health in international human rights law.Chapter five is devoted to the suggestions to construct laws relating to protecting right to health in China. It analyses the current laws concerning right to health in China, including Chinese international commitment, regulation in the Constitution and the provisions in the health system and provides the social significance of constructing right to health protection system in China, which is necessary to build a harmonious society, overcome the failure of the Government in the field of health as well as to resolve the current problems of the medical reform. Finally it offers the detailed suggestions of legal construction of protecting right to health in China. The dissertation proposes not only the macro idea of legal system construction but also the microcosmic construction on detailed content.