Health as Human Rights under National and International Legal Framework: Bangladesh Perspective
| Author | Md. Ershadul Karim |
| Position | Senior Research Officer |
| Pages | 337-363 |
Md. Ershadul Karim. Senior Research Officer, Chancery Research and Consultants Trust (CRC-Trust) [www.clcbd.org] and Advocate of the Bangladesh Supreme Court. LL.B. (Hons.)/LL.M. (Dhaka). The author may be contacted at: ershadulkarim@gmail.com / Address: Suite # 1101, Concord Tower, 11th Floor, 113, Kazi Nazrul Islam Avenue, Dhaka, Bangladesh.
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Few would dispute that health is wealth which is fundamental to a full and active life.1 Good health contributes directly to economic prosperity, while poor health leads to poverty. According to Nobel Laureate Amartya Sen, men can enjoy the maximum freedom when they are free from health problem.2 Securing health is therefore important to human well-being. Against this backdrop, the right to health is considered directly in many international instruments. As the World Health Organization (“WHO”) has revealed that every country in the world is now a member of at least one of these international instruments,3 few people dispute that sound health is a pre-condition to enjoy the right to life.
As the traditional police state redefines its role in the welfare state system,4 State not only performs sovereign functions, but also seeks to ensure social security and welfare for people. Health is what most countries put the highest priority on. This paper aims to examine how various international legal instruments view the physical and mental health issue from the perspective of human right. In addition, it explores how it is applied to the national law of Bangladesh. The human right to health has been always embodied within the “right to life.” Unfortunately, the “right to health” has not received considerable attentions in many parts of the world, including Bangladesh. This paper intends to initiate the discussion about such an important and timely issue and to provide guidelines for the countries on how to determine their international obligations to support it.
This paper is composed of four parts. The first part will discuss conceptual issues in health and human rights, etc. The second part will analyze the provisions relating to health in different international legal instruments. The third part will address questions on the implementation of international human rights instruments. The final part will discuss how Bangladesh government handles the issue of health as human rights at the national level.
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It is not easy to find the universal definition of the term ‘health’since the word carries several different meanings. In the Oxford dictionary, ‘health’is defined as “he state of being well and a state free from illness in body or mind.”5 It also implies the condition of a person’s body or mind.6 It is the extent of continuing physical, emotional, mental, and social ability to cope with one’s environment.7
The WHO Constitution of 1946 defines health as “a state of complete physical, mental and social well-being and not merely the absence of disease or infirmity.”8 This definition is also referred and supplemented by the Ottawa Charter for Health Promotion of 1986, which defines ‘health’as “a resource for everyday life, not the objective of living. Health is a positive concept emphasizing social and personal resources, as well as physical capacities.”9 In the WHO’s definition, health is defined in terms of ultimate goal of perfection. The WHO has also specified particular objectives to be reached on the way to this ideal.10 Article I of the Alma-Ata Declaration of 1978 defines health as “a state of complete physical, mental and social well being, and not merely the absence of disease or infirmity.”11
In Bangladesh, there is no law which directly defines ‘health.’Even the Public Health (Emergency Provisions) Ordinance of 1944 (Ordinance No. XXI of 1944) fails to define the term, either. Nevertheless, section 2 (e) of the Ordinance provides that “public health services” and “public health establishment” include sanitary, water-supply, vaccination, sewerage disposal, drainage and conservancy services and establishment maintained for the purposes of such services, and any other service or establishment of a local authority. This perspective on public health suggests that therePage 340 is an interrelation between sanitary, water-supply, vaccination, sewerage disposal, drainage and conservancy services. In this context, health can be defined in the following three ways: Negatively, it is the absence of illness; positively, it is fitness and well-being; and functionally, it is the ability to cope with everyday activities. Health is a resource for everyday life. It is a basic and dynamic force in our daily lives, influenced by our circumstances, beliefs, culture and social, economic and physical environments.
Human rights are universally inherent, inalienable and inviolable rights of all mankind. States and their public authorities must ensure human rights for the people.12 Human rights are concerned with the dignity and worth of the individuals and “represent minimal moral standards for human society.”13
On the basis of the three watchwords of the French Revolution such as Liberty, Equality and Fraternity, the Czech jurist, Carel Vasak divided human rights into three generations. The first-generation concerns with civil and political rights. They were the brain child of Western democratic countries. The first-generation includes right to life, liberty, security to persons, freedom of assemble, freedom of association, and freedom of religion. The second-generation focuses on economic, social and cultural rights. They were traditionally supported by socialist countries. The second-generation of human rights discourse includes right to employment, right to housing, and right to equal wage. The third generation human rights emerge with the United Nations with the Stockholm Declaration on the Human Environment. The third-generation of human rights includes group and collective rights, such as right to self-determination right to environment and right to development.
Health is a crucial condition to enjoy other human rights though usually encapsulated within the right to life. All human rights contain such actions as right to life, security to person, right to water, right to information, right to education, right to rood and nutrition, freedom of movement, right to participation, harmful traditional practices, freedom from violence, torture, slavery, freedom from discrimination and the right to privacy. These are closely interlinked with health. It is depicted as Diagram II-1.
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Diagram II-1: Examples of the Linkage between Health and Human Rights
[SEE THE DIAGRAM IN THE ATTACHED PDF]
Source: WHO, Linkage between Health and Human Rights. (http://www.who.int/hhr/HHR%20linkages.pdf)
The concern for ‘health’is a new issue of the postwar period. At the time of creating the United Nations, the drafting committee, realized the importance of this issue, and included provisions relating to health in the Charter. The Charter of the United Nations empowers (a) the General Assembly to initiate studies and make recommendations for the purpose of . . . promoting international co-operation in the . . . health fields,14 and (b) the Economic and Social Council may make or initiate studies and reports with respect to international . . . health, and related matters and may make recommendations with respect to any such matters to the General Assembly to the Members of the United Nations, and to the specialized agencies concerned.15 The United Nations is responsible for “promoting solutions of international . . . health, andPage 342 related problems with a view to the creation of conditions of stability and well-being which are necessary for peaceful and friendly relations among nations based on respect for the principle of equal rights and self-determination of peoples.”16 If considering ‘health’within the context of “right to life,” hundreds of references may be found in international human rights instruments such like conventions, treaties,17 declarations, norms and standards.18 Many legal instruments on health were regionally adopted in Africa, America, Arab and Europe as well.19
Article 25 of the Universal Declaration of Human Rights of 1948 (“UDHR”) providesPage 343 that “everyone has the right to a standard of living adequate for the health and well-being of himself and his family including food, clothing, and...
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