Health as a Basic Human Need: Would This Be Enough?

Constitution of the WHO, 22 July 1946, Preamble.

Clapham A. Robinson M. Mahon C. Jerbi S. , Realizing the Right to Health – Swiss Human Rights Book , vol. 3 (Zurich: Ruffer & Rub, 2009): At 17.

Toebes B. , “The Right to Health,” in Eide A. Krause C. Rosas A. , eds., Economic, Social and Cultural Rights: A Textbook , 2nd ed. (Dordrecht: Nijhoff, 2001): 169–190, at 170.

UN Doc: E/C.12/2000/4, August 11, 2000.

Id., at paragraph 6.

Id., at paragraph 4.

Id., at paragraph 1.

Id., at paragraph 11.

Id., at paragraph 42.

See Clapham Robinson Mahon Jerbi , supra note 2, at 17.

UN Doc: E/CN.4/2003/58, February 13, 2003, at paragraph 20.

Constitution of the WHO, July 22, 1946, at Preamble.

The Preamble states:

f. States have the primary responsibility for realizing the right to the highest attainable standard of health and increasing access to medicines.

g. In addition to states, numerous national and international actors share a responsibility to increase access to medicines.

i. Pharmaceutical companies, including innovator, generic and biotechnology companies, have human rights responsibilities in relation to access to medicines.

Doc UN A/63/263, August 11, 2008, Annex , Human Rights Guidelines for Pharmaceutical Companies in Relation to Access to Medicines , Preamble, at 15.

The Plos Medicines Editors, “Drug Companies Should Be Held More Accountable for Their Human Rights Responsibilities,” Plos Medicines 7, no. 9 (September 2010). Editorial, “Right-to-Health Responsibilities of Pharmaceutical Companies,” The Lancet 373, no. 9680 (June 13, 2009).

GlaxoSmithKline, Human Rights Guidelines for Pharmaceutical Companies in Relation to Access to Medicines - GSKComments, 2008, at 2, available at <http://www.essex.ac.uk/human_rights_centre/research/rth/comments.aspx> (last visited May 21, 2012).

Id., at 1.

GlaxoSmithKline, GlaxoSmithKline Statement in Response to Paul Hunt's Report on GSK (A/HRC/11/12/Add.2) June 2009, June 2009. Available at <www.gsk.com/responsibility/down-loads/GlaxoSmithKline-Statement-in-response-to-the-Paul-Hunt-Report-on-GSK.pdf> (last visited May 21, 2012).

Novo Nordisk, Novo Nordisk comments on the Draft Human Rights Guidelines for Pharmaceutical Companies in Relations to Access to Medicines, available at <http://www.essex.ac.uk/human_rights_centre/research/rth/comments.aspx> (last visited May 21, 2012).

J. L. Sturchio's letter to Hunt Paul , Human Rights Guidelines for Pharmaceutical Companies in Relation to Access to Medicines, prepared by United Nations Special Rapporteur, Paul Hunt – Response from Merck & Co., Inc., February 29, 2008, available at <http://www.essex.ac.uk/human_rights_centre/research/rth/comments.aspx> (last visited May 21, 2012).

The fact that it is available is probably superfluous in the example, since its scarcity would probably be reflected in the price. Being cheap, the pill should not be scarce or difficult to get hold of, unless the price is controlled by the authority or subject to some other distortion. I am thankful to Mr. Francisco J. Urbina for making this point clear.

Griffin J. , Well-Being: Its Meaning, Measurement, and Moral Importance, OUP, 1986, at 40.

Id., at 41.

David Miller explains basic human needs in terms of “minimum decency,” “harm-avoidance,” and “moral urgency.” ( Miller D. , National Responsibility and Global Justice, OUP, 2007A, at 181; Miller D. , Human Rights, Basic Needs, & Scarcity , Centre for the Study of Social Justice and Department of Politics and International Relations, Working Paper Series, SJ007, May 2007, at 5). David Braybrooke defines basic needs as the “conditions to live and function adequately” in Meeting Needs (Princeton, Princeton University Press: 1987): At 31. Jeremy Waldron gives a complementary yet similar definition, explaining basic human needs in terms of a “bearable” life in “dignity.” ( Waldron J. , Rights and Needs: The Myth of Disjunction , in Sarat A. Kearns T. R. , Legal Rights – Historical and Philosophical Perspectives [Ann Arbor: The University of Michigan Press, 1997]: At 92, 105). David Wiggins, by his turn, emphasize that basic needs are “categorical” and “absolute” ( Wiggins D. Dermen S. , “Needs, Need, Needing,” Journal of Medical Ethics 13[1987]: 62–68, at 64). Both Waldron and Wiggins also emphasize that basic human needs shape the duties and responsibilities we owe to each other as human beings with equal dignity.

Miller D. , Human Rights, Basic Needs, & Scarcity, Centre for the Study of Social Justice and Department of Politics and International Relations, Working Paper Series, SJ007, May 2007, at 180.

Id., at 181.

Id., at 181–2, n.27.

Id., at 182.

Id., at 181.

Id., at 182.

Engaging with the capability approach, first proposed by Amartya Sen and Martha Nussbaum, see Ariana P. Naveed A. , “Health,” in Deneulin S. Shahani L. , eds., An Introduction to the Human Development and Capability Approach – Freedom and Agency , London: Earthscan, 2009): Chapter 10, at 228–45, available at <http://web.idrc.ca/opene-books/470–3/> (last visited May 23, 2012), and Ruger J. P. , Health and Social Justice, OUP, 2010. For an alternative Rawlsian-based approach, see Daniels N. , Just Health – Meeting Health Needs Fairly, CUP, 2008.

I borrow these two terms “escapable morbidity” and “premature mortality” from Ruger J. P. , id., at 61, which she defines as the two central health capabilities.

This point is fully developed by Pavlos Eleftheradis in his contribution for this symposium edition, when he explains the content of the right to health care. Far more than a fixed list of health needs, the key idea of a right to health care, which has to be protected by any public institution, is the equal liberty of persons conceived as citizens. And this is so, as he argues, because the right to health care cannot be understood as a mere fixed list of political goals. Instead, the right to health care has to be understood as a relational concept: Consisting in relations between persons and concerning the meaning of our actions in terms of health. ( Eleftheriadis P. , “The Right to Health Care,” Journal of Law, Medicines & Ethics 40, no. 2 [2012]: 268–285).

Griffin J. , Well-Being: Its Meaning, Measurement, and Moral Importance (Oxford: Oxford University Press, 1986): At 41 (note 21).

Id., at 42.

Id.

Id.

Griffin J. , On Human Rights (Oxford: Oxford University Press, 2008.)

Id., at 101.

See Griffin , supra note 33, at 42.

Id., at 45, 55.

Id., at 55; see Griffin , supra note 37, 180.

Id. (Griffin, 1986), at 43.

I am grateful for Mr. Francisco Urbina for making this distinction clear.

See Griffin , supra note 33, at 42.

Endicott T. , Vagueness in Law, OUP, 2002, at chap. 7.

Id.

Pogge T. , “Politics as Usual – What Lies behind the Pro-Poor Rhetoric,” Polity, 2010, at 11–12.

“This notion of the minimum ingredients of a worthwhile human life is indispensible to moral theory.” See Griffin , supra note 33, at 43.

See Griffin , supra note 37.

Id., at 33.

Id., at 44.

Id., at 41.

Id., at 46.

Griffin explains that certain desires (that he calls informed-desires) have such a significance in one's life (or, as he puts it, have such a prudential value in one's existence) that it becomes a central element of one's worthwhile living.

I am grateful to Thomas Pogge for coming up with these examples.

For instance: (1) the personal responsibility of the smoker in engaging in an optional conduct that has a foreseeable high risk for his health carries normative relevance; (2) the adequate social restitution to the segregated neighborhood harmed by their representative authorities also carry normative weight, and indicates that it would be fair that the community as a whole remedy that harm; (3) avoiding ethnic stigmatization is a common concern of public policies, thus avoiding the stigmatization related to this hypothetical allergic reaction manifested only on black-skinned people also carries a normative significance. The list specifying various other cases bearing normative weight goes on.

See Griffin , supra note 33, at 51.

Id., at 55.

Id.

Id.

Id.

Id.

Id.

See Griffin , supra note 37.

Id., at 89, 90.

Id., at 101.

See Griffin , supra note 33, at 52.

See Griffin , supra note 37, at 183.

Id., at 45.

Id., at 44–48, 51.

Id., at 45.

Id., at 67.

Id.

Id., at 101.

Id., at 84, 86, 94, 101.

Id., at 92.

Id., at 95.

Id., at 87, 88.

Id., at 95.

Id., at 85.

Id., at 86.

Id., at 94.

Id., at 94.

Id., at 88.

Id., at 95.

Id., at 67.

Id., at 46.

Id., at 100.

Id., at 100.

“My account can therefore be seem as a kind of need account: What is needed to function as a normative agent.” See Griffin , supra note 37, at 90.

Id., at 180.

Id., at 87, 88.