The Right to Health

Is health a human right? Many would maintain that it is not. On this view health and ill-health are due to natural causes, not to State actions. Others are concerned that health raises too many polycentric problems to be dealt with through justiciable human rights. These contestations have shaped the way in which the right to health is understood. Section II sketches out the health context. Section III considers jurisdictions in which there is no express right to health, but a right has been derived from rights to life, personal integrity, or privacy. Section IV contrasts this approach with jurisdictions with an express right to health. Section V examines the role of the right to equality, while section VI focuses on reproductive health. The final section returns to the challenges of polycentricity and the extent to which a justiciable right can address systemic issues rather than individual rights to medication.

Capital Punishment

This chapter applies the cross-cutting themes in Chapters 1–5 to the highly contested issue of the death penalty. It begins by considering the differences in constitutional texts, and particularly the ambiguity as to whether the death penalty is permitted. This requires judges to apply their interpretive theories. Original intent, natural meaning, and living tree approaches have all been relied on to achieve a mosaic of different and vehemently contested approaches. The chapter then considers how courts in different jurisdictions have addressed three main issues: whether a fair procedure can be found which justifies the death penalty; whether there are good penological justifications; and the role of substantive values, such as human dignity. The chapter highlights the ways in which courts approach the demarcation between judicial and legislative power; their use of comparative materials; and the increasing interconnectedness of the approach of different jurisdictions to the death penalty.

Interpreting Human Rights Law

On the face of it, judges are tasked with applying the law, not making it. Yet human rights are framed in general terms, requiring judges to draw on external values to interpret. Some regard judicial interpretation as gaining legitimacy only when true to the original intention of the drafters; or the text’s natural meaning. Others regard the human rights instruments as necessarily responsive to changing times. This is the ‘living tree’ or purposive approach. This chapter explores different approaches to interpretation of human rights in a comparative context. Section II examines judges’ own values. Section III discusses originalism or the intention of the drafters; section IV considers the natural meaning of the text; while section V examines the ‘living tree’ or purposive approach. Section VI explores the notion of transformative constitutionalism. The final part draws on the ‘bounded deliberative democracy’ developed in earlier chapters to point to the way forward.

Allies or Subversives? Adjudication and Democracy

This chapter addresses the argument that human rights should be not be the responsibility of courts, but of the legislature. Instead of regarding courts and the legislature as mutually exclusive, however, it asks whether we can create a role for justiciable human rights which reinforces democracy. Section II considers democratic objections to justiciable human rights, and canvasses potential responses. Section III examines three ways to reconcile the role of courts with democracy: representation-reinforcing, dialogic, and deliberative theories. It concludes that courts should enhance the democratic accountability of decision-makers by insisting on a deliberative justification for the interpretation or limitation of rights. Section IV turns to objections based on lack of judicial competence to address complex, polycentric issues raised by human rights. Using the example of India’s public interest litigation, it examines ways in which the court structure might be adapted to address these concerns. Section V considers remedies and implementation.

Challenging the Divide: Socio-economic Rights as Human Rights

This chapter critically examines the ways in which civil and political rights have been distinguished from socio-economic rights, including differing ideologies, subject matter; obligations, resource implications, and justiciability. Instead of such bright-line distinctions, it suggests that all rights should be seen as giving rise to a cluster of duties: to respect, protect, and fulfil. The duty to fulfil is most challenging, especially when framed as a duty of progressive realization subject to maximum available resources. Section II assesses these concepts, particularly the attempt to establish a minimum core. It concludes that a thoroughgoing acceptance of socio-economic rights requires more than the label of ‘human right’. It also entails a re-characterization of human rights values, emphasizing inter-connectedness, mutual dependence, and a substantive conception of equality. Freedom and dignity need to be refashioned to ensure that individuals have genuine choices from a range of valuable options, within a framework of participative democracy.

What Is a Human Right? Dealing with Disagreement

While the notion of fundamental human rights attracts general respect, there is little agreement on how we identify rights or their substantive content and application. This chapter addresses several ways of addressing these foundational disagreements. One is to formulate a moral principle, from which human rights can be derived. The chapter critically assesses possible moral foundational principles, including autonomy, dignity, basic interests, and capability theory. A second approach rejects the possibility of formulating universal principles. The chapter evaluates theories of pluralism and moral relativism in relation to human rights as well as the liberal response to relativism. The chapter then canvasses various ways of resolving such disagreements. The conclusion sets out the approach in this book. Rather than aspiring to achieve absolute answers across time and place, the book draws on the insights of deliberative democracy, aiming to engage in constant reasoned attempts to develop the understanding of human rights.

Freedom of Religion

This chapter considers freedom of religion in relation to three themes. The first concerns the separation of State and religion. Although a strict separation is seen as fundamental in some jurisdictions, others see religion as central to society and therefore a legitimate area of State involvement. The second concerns individual freedom of belief and manifestation. The third is equality. Section II shows how the different themes are expressed in constitutional texts. Section III deals with the relationship between the State and religion. Section IV examines how Courts determine which beliefs count as religious beliefs for the purpose of freedom of religion. Section V assesses the legitimacy of State limitations on freedom of religion and State responsibility to accommodate religion. Section VI examines conflicts between freedom of religion and other rights, particularly equality. Freedom of religion expects tolerance of religious adherents, but can religious adherents be expected to be tolerant of others?

Abortion

——Chapter seven examines abortion. A comparative approach reveals the pivotal role of the characterization of relevant rights. Is this an issue of the right to life, to privacy, or to equality? Running through these issues are the cross-cutting themes identified above, particularly the interaction between legislatures and courts. Section II demonstrates that legislatures and courts interact in different ways. In some jurisdictions, courts have struck down legislation prohibiting abortion; while in others, courts have done the reverse and invalidated legislation providing a right to abortiofn. In a third group, courts and legislatures have worked together, either to cement prohibitions, or to protect the right to abortion. Section III examines the right to life in relation to abortion; section IV considers privacy; while section V examines equality. Section VI assesses third-party rights, and particularly the ways in which conscientious objection is dealt with in different jurisdictions.

Foreign Fads or Fashions: The Role of Comparativism in Human Rights Law

Human rights law is particularly ripe for a comparative approach. There is a broadly similar common core of human rights, and when analogous issues arise, we would expect to see equivalent answers. Yet there are real complexities in the use of comparative human rights law. Given the important social, political, and legal differences between jurisdictions, how can the conclusions reached by judges in different jurisdictions be evaluated and weighed against each other? The book adopts a ‘deliberative’ approach, which does not regard foreign law as binding, or tending to convergence, but incorporates insights where appropriate and useful. Judicial accountability depends centrally on the quality of the reasons adduced. Comparative materials constitute an important contribution to the rigour of this process. Whether the outcomes converge or diverge, there need to be good reasons, explaining why the textual, institutional, legal, social, or cultural context demands convergence or divergence.

The Right to Education

Education is a multiplier right. Without education, other rights cannot be fully enjoyed. Education is also an accelerator right: it equips people to enter the labour force and participate in public life. However, education is not only an instrumental right. It should primarily be regarded as an intrinsic right, valuable in its own terms. Section II considers how the freedom, social, and equality components of the right are reflected in different human rights instruments, contrasting these to education in the Sustainable Development Goals. Section III considers the meaning of ‘free and compulsory’ education and particularly the paradoxical nature of a compulsory right. Section IV examines the complex contestations between the freedom and equality dimensions of the right, especially in the context of parental choice as to the religious, moral, or political nature of the right to education. Section V is concerned with the extent to which a human rights approach to education can be used to achieve quality education.