Right to Health in Contexts of Resource Scarcity: Towards Judicial Enforcement of the Right to a Fair Share

Abstract

Almost all states have ratified international documents committing them to secure the right to “the highest attainable standard of physical and mental health” for all their citizens, and obliging them to pursue this to the maximum of available resources. A growing number of countries have similar commitments in their national constitutions. But what does this mean in practice in terms of health service delivery? What do individuals living in conditions of resource scarcity have a right to? And can this right be meaningfully enforced thorough courts? This article argues that courts can and should enforce the right to health services, not least in conditions of radical resource scarcity. This requires, however, that the right to health be conceptualized as “the right to a fair share” of the maximum health services that can be provided within available resources. To be able to enforce this effectively, judges must engage the thinking around fair priority setting in health, and seek ways to enforce the right to health that look beyond the individual case and addresses the structural causes of the violations that are placed before them. Commitments to move towards Universal Health Coverage provide opportunities for doing so – and makes judicial engagement urgent. For courts to fill the accountability functions needed to advance the right to health, dialogical approaches are needed, where judges engage health authorities and other stakeholders.