Taking a cross-disciplinary approach to international human rights law that combines public health, legal, political and social theory, this thesis analyses the right of access to healthcare and the ways in which commercialization has limited this human right. In doing so, the study develops a critique of the interpretation human rights bodies have adopted of this human right under the International Covenant on Economic, Social and Cultural Rights. At the same time, the thesis explores new ways of envisioning this human right.
Contemporary narratives of social rights centre on individual rights. In the case of the right to health, these consist of legal entitlements to a minimum provision of a medical treatment, which can be made justiciable in courts of law. The study, however, argues that what most strikingly hinders the right to health is not lack of this type of justiciability, but the failure to tackle the for-profit provision of healthcare, which leads to unequal access on grounds of wealth or social privilege. Therefore, putting civil and political rights on an equal foot with economic, social and cultural rights requires adopting a stand against the commercialization of healthcare.
Advancing the underexplored legal principle of solidarity, the thesis raises the hypothesis that it is this principle which most accurately captures the logic, goals and function of social rights such as the right to health. The thesis concludes that under solidarity, the positive obligations of the right to health protect access to healthcare not as an individual right, but as a public good. Protecting the right to health means to transform the provision of healthcare into a non-market area. By the same token, access to healthcare must be fulfilled by means of a public health service, free-of-charge for all. This does not mean that all healthcare needs will be served, or that difficult trade-offs will not occur. Yet, the fact that scarcity is not distributed on the basis of the individual’s lack of economic means but on the grounds of either citizenship or medical need, leads to the distributive criteria that characterizes human rights under solidarity. In this light, the national healthcare service, as an institution organized around solidarity, is considered indispensable to the right to health.
Though, when departing from solidarity, individual justiciability does not form the core of the right to health, questions of adjudication may nevertheless arise. In fact, solidarity sheds light on the International Covenant on Economic, Social and Cultural Rights’ notion of progressive realization. In pursuing the goal of equal access to healthcare for all, solidarity means the ever-increasing path towards the decommodification of access to healthcare.