provisions for health and health care in the constitutions

Cornell International Law JournalVolume 37Issue 2 2004 Article 2

Provisions for Health and Health Care in theConstitutions of the Countries of the WorldEleanor D. Kinney

Brian Alexander Clark

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Recommended CitationKinney, Eleanor D. and Clark, Brian Alexander (2004) "Provisions for Health and Health Care in the Constitutions of the Countries ofthe World," Cornell International Law Journal: Vol. 37: Iss. 2, Article 2.Available at: http://scholarship.law.cornell.edu/cilj/vol37/iss2/2

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Provisions for Health and Health Carein the Constitutions of the Countries

of the World

Eleanor D. Kinney t & Brian Alexander Clark TT

Introduction ..................................................... 285I. Research M ethods ........................................ 287

A . D efinitions ........................................... 287B. Typology of Provisions Addressing Health and Health

C are .................................................. 28 9II. Findings .................................................. 29 1

A. Provisions on Health and Health Care as a Function ofT im e ................................................. 29 1

B. National Commitments to Health Care and HealthC are .................................................. 2 94

III. D iscussion ................................................ 298A. Meaning of Constitutional Provisions .................. 298B. Performance Comparison as a Realization Strategy ..... 301

C onclusion ....................................................... 303A ppen dix I ....................................................... 305

Introduction

At a time of renewed interest in the international human right tohealth,' it is useful to identify and examine the provisions of the constitu-tions of the world regarding health and health care. These provisions indi-cate a national commitment towards the assurance of access to high quality

t Hall Render Professor of Law & Co-Director, The Center for Law and Health,Indiana University School of Law, Indianapolis. J.D. 1973, A.B. 1969, Duke University;M.P.H. 1979, University of North Carolina School of Public Health, Chapel Hill.

tt Deputy Prosecuting Attorney, Marion County Indiana, former Senior ResearchAssociate, The Center for Law and Health, Indiana University School of Law,Indianapolis. J.D. 2002, B.A. 1999, Indiana University. The authors are grateful to theresearch assistants who helped with this Article, especially Scott Wooldridge, JenniferWallander, and Neesha Patel. In addition, the authors thank the faculty seminar ofIndiana University School of Law, Indianapolis, especially colleagues Frank Emmert,Jim Torke, Robin Craig, Julie-Anne Tarr, George Edwards, and Miriam Anne Murphy.

1. See, e.g., HEALTH AND HUMAN RIGHTS (Jonathan M. Mann et al. eds., 1999); BRIGIT

C.A. TOEBES, THE RIGHT TO HEALTH AS A HUMAN RIGHT IN INTERNATIONAL LAW (1999);Virginia A. Leary, The Right to Health in International Human Rights Law, 1 HEALTH &HUM. RTS. 24 (1994); Brigit Toebes, Towards an Improved Understanding of the Interna-tional Human Right to Health, 21 HuM. RTS. Q. 661 (1999). See also G. J. Annas, HumanRights and Health- The Universal Declaration of Human Rights at 50, 339 NEW ENG. J.MED. 1778 (1998); Consortium for Health and Human Rights, Health and Human Rights:A Call to Action on the 50th Anniversary of the Universal Declaration of Human Rights, 280JAMA 462 (1998).37 CORNELL INT'L L.J. 285 (2004)

Cornell International Law Journal

and affordable health care for all peoples. In addition, such constitutionalprovisions may be important factors in the international campaign to pro-mote the recognition and implementation of the international human rightto health domestically throughout the world.

In 1948, the United Nations formally recognized the internationalhuman right to health in the Universal Declaration of Human Rights (the"Declaration"). 2 Article 25 of the Declaration states the following: "Every-one has the right to a standard of living adequate for the health and well-being of himself and of his family, including ... medical care ... and theright to security in the event of ... sickness [and] disability .... ,,3 Subse-quently, many nations adopted the International Covenant on Economic,Social and Cultural Rights (ICESCR), one of the implementing treaties ofthe Universal Declaration. 4 Article 12 of ICESCR provides that states par-ties "recognize the right of everyone to the enjoyment of the highest attaina-ble standard of physical and mental health."5 ICESCR also providesenforcement provisions for states parties. 6 Since ICESCR, the UN hasadopted other treaties that recognize the international human right tohealth and related health questions. 7

Subsequent regional treaties in Europe, the Americas, and Africa havealso affirmatively recognized the human right to health.8 In addition, theWorld Health Organization (WHO) recognizes the international humanright to health in its constitution by stating that "It]he enjoyment of the

2. G.A. Res. 217A, U.N. Doc. A/810, at 76 (1948).3. Id.4. G.A. Res. 2200, U.N. GAOR, 21st Sess., Supp. No. 16, at 49, U.N. Doc. A/6316

(1966).5. Id. at 51.6. See generally MATTHEW C. R. CRAVEN, THE INTERNATIONAL COVENANT ON Eco-

NOMIC, SOCIAL, AND CULTURAL RIGHTS 106-51 (1995) (discussing states' obligations inimplementing ICESCR); Matthew C.R. Craven, The Domestic Application of the Interna-tional Covenant on Economic, Social and Cultural Rights, 40 NETH. INT'L L. REV. 367(1993) (discussing problems and possible solutions for enforcing ICESCR, includingdirect applicability).

7. See, e.g., International Convention on the Elimination of All Forms of RacialDiscrimination, G.A. Res. 2106, U.N. GAOR, 20th Sess., Supp. No. 14, at 49, U.N. Doc.A/6014 (1966) (entered into force Jan. 4, 1969) (providing in article 5(e)(iv) for theright to "public health, medical care, social security and social services"); Convention onthe Elimination of All Forms of Discrimination Against Women, G.A. Res. 34/180, U.N.GAOR, 34th Sess., Supp. No. 46, at 196, U.N. Doc. A/RES/34/180 (1980) (entered intoforce Sept. 3, 1981); Convention on the Rights of the Child, G.A. Res. 44/25, U.N.GAOR, 44th Sess., Supp. No. 49, at 169, U.N. Doc. A/44/49 (1989) (entered into forceSept. 2, 1990). See generally Susan Kilbourne, U.S. Failure To Ratify the U.N. Conventionon the Rights of the Child: Playing Politics with Children's Rights, 6 TRANSNAT'L L. & CON-TEMP. PROBS. 437 (1996) (supporting adoption of the Convention and highlighting argu-ments of its opponents in the U.S.); Alison Dundes Renteln, Who's Afraid of the CRC:Objections to the Convention on the Rights of the Child, 3 ILSA J. INT'L & COMp. L. 629(1997) (providing historical overview on the Convention's adoption process in the U.S.and political controversy surrounding it); Egon Schwelb, The International Convention onthe Elimination of All Forms of Racial Discrimination, 15 INT'L & COMp. L.Q. 996 (1966)(discussing origins of the Convention and providing detailed comparative analysis of itsprovisions).

8. See infra notes 38, 40-44.

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2004 Provisions for Health and Health Care in the Constitutions 287

highest attainable standard of health is one of the fundamental rights ofevery human being without distinction of race, religion, political belief,economic or social condition."9 These foundational instruments haveclearly influenced provisions regarding health and health care in nationalconstitutions drafted after World War II.

This Article reports findings of an empirical analysis of the provisionsof the constitutions of the world that address health and health care. TheArticle also examines other indices of national commitment to health andhealth care, such as ratification of ICESCR and relevant regional humanrights treaties, and national performance in allocating budgetary resourcestowards health and health care. The Article concludes that the nationalcommitment to health and health care is not highly related to whether ornot a nation's constitution specifically addresses health or health care.Nevertheless, the finding that 67.5% of the constitutions of all nations haveprovisions regarding health and health care is important for efforts to pro-mote recognition and implementation of the international human right tohealth.

I. Research Methods

This Article follows the format of a scientific research paper, reportingthe results of an empirical research study. This section describes how weconducted the study, the "Findings" section reports the results of the study,and the "Discussion" section presents a theoretical discussion of the impli-cations of the findings.

A. Definitions

For this analysis, we established the definition of important relevantterms: "eligible nation state" and "constitution." Eligible nation states weremember-states of the United Nations as of June 30, 2003.10 We used thedefinition of constitution from Black's Law Dictionary, which is restatedbelow:

constitution. 1. The fundamental and organic law of a nation or state, estab-lishing the conception, character, and organization of its government, as wellas prescribing the extent of its sovereign power and the manner of itsexercise.flexible constitution. A constitution that is not defined or set apart in a dis-tinct document and that is not distinguishable from other law in the way inwhich its terms can be legislatively altered. The British constitution is ofthis type.rigid constitution. A constitution embodied in a special and distinct enact-ment, the terms of which cannot be altered by ordinary forms of legislation.The U.S. Constitution, which cannot be changed without the consent of

9. CONST. OF THE WORLD HEALTH ORG. pmbl. (opened for signatures July 22, 1946).10. For a list of member-states and their admission dates, see United Nations, List of

Member States, at http://www.un.org/Overview/unmember.html (last visited Mar. 13,2004).


three-fourths of the state legislatures or through a constitutional convention,is of this type.unwritten constitution. The customs and values, some of which are expressedin statutes, that provide the organic and fundamental law of a state or coun-try that does not have a single written law functioning as a constitution.2. The written instrument embodying this fundamental law."1

Most states have "rigid" constitutions consisting of a single founda-tional document. The few countries with flexible constitutions include

Canada, Israel, New Zealand, and the United Kingdom. No state includedin this study had an authoritative unwritten constitution. Rigid constitu-tion usually consists of a preamble that recognizes the process or event inwhich the constitution was developed and adopted, a part codifying theprocedural functioning of government, and a part (often included in thepreamble) codifying the basic rights of citizens vis-d-vis the government. Incountries that have had either a socialist economic system or a more liberalpolitical tradition, the constitution may also impose affirmative duties onthe part of the state to address social and economic needs of the popula-tion and recognize associated rights to services to meet these needs. Asdiscussed below, the constitutions adopted after World War II primarilyhave these provisions.12

For all constitutions, including flexible constitutions, we used the con-stitutions contained in the English version of Constitutions of the Countries

of the World. 13 This compendium is comprehensive, uniformly translated,current, and widely used in comparative constitutional scholarship. Wefound at least one other source of national constitutions (dated and lesscomplete) 14 and two web sites with electronic English translations of con-stitutions (incomplete and not uniformly edited). 15 Further, for countrieswith flexible constitutions, we used the compendium's determination ofwhat instruments constitute the country's constitution.

This Article does not analyze what the terms "health" and "health

care" mean in a particular national constitution or in general. Our reluc-tance to do so reflects the fact that the definition of these terms has beencontroversial. 1 6 For example, the WHO's constitution defines health

11. BLACK'S LAW DICTIONARY 306 (7th ed. 1999).12. See infra Part II.A.13. CONSTITUTIONS OF THE COUNTRIES OF THE WORLD (Gisbert H. Flanz ed., perm. ed.

2003) [hereinafter CONSTITUTIONS OF THE COUNTRIES OF THE WORLD].

14. See ROBERT L. MADDEX, CONSTITUTIONS OF THE WORLD (2d ed. 2001).15. See, e.g., Central Intelligence Agency, The World Factbook, available at http://

www.cia.gov/cia/publications/factbook/fields/2063.html (2003); D. Eric Wiseley, Con-stitution Finder, at http://confinder.richmond.edu/ (last visited Mar. 13, 2004).

16. See, e.g., RIGHTS AND RESOURCES (Frances H. Miller ed., 2003) (featuring articlesthat discuss health care resources); Tom L. Beauchamp & Ruth R. Faden, The Right toHealth and the Right to Health Care, 4J. MED. & PHIL. 118 (1979) (arguing that the rightto health is a positive right and that if there is a right to health care goods and assistanceit is only because of the pre-existing obligation to allocate resources for the goods andassistance); Norman Daniels, Rights to Health Care and Distributive Justice: ProgrammaticWorries, 4J. MED. & PHIL. 174 (1979) (discussing distributive justice and other theoreti-cal problems with defining health care); Charles Fried, Rights and Health Care- BeyondEquity and Efficiency, 293 NEW ENG. J. MED. 241, 243-44 (1975) (describing rights to

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2004 Provisions for Health and Health Care in the Constitutions

broadly as "a state of complete physical, mental and social well-being andnot merely the absence of disease or infirmity."17 Although the definitioncaptures the full dimensions of the state of health, it is probably too broada definition for government policy makers charged with the responsibilityfor a nation's health care.

The definition of "health care" is fraught with other difficulties. Forinstance, there is no consensus on what type and amount of health careservices constitute adequate care. Nor is there an understanding of thetrue cost or quality of those services. Scholars, however, have endeavoredto delineate the crucial issue of what governments should assure or providein terms of health care services and, specifically, what may be the contentof a morally acceptable package of health care services.18

Notably, the UN Committee on Economic, Social and Cultural Rights(CESCR) charged with implementing and enforcing ICESCR has publishedComment 14 that specifically outlines what the Committee expects ofstates parties in implementing the international human right to health rec-ognized in ICESCR. 19 The Comment is a useful tool because it articulatesthe content of the right to health and addresses the issues of implementa-tion and enforcement by delineating how universal expectations are to bemet in economically, socially, and culturally diverse states.

B. Typology of Provisions Addressing Health and Health Care

First, we identified five types of constitutional provisions thataddressed health and health care in national constitutions:

health care as including distributional rights and patient's rights to not be deliberatelymisled, denied information, or abandoned by a physician).

17. CONST. OF THE WORLD HEALTH ORG. pmbl.18. See, e.g., Allen E. Buchanan, The Right to a Decent Minimum of Health Care, 13

PHIL. & PUB. AFF. 55 (1984) (attempting to define a decent minimum standard of care);Daniel Callahan, What Is a Reasonable Demand on Health Care Resources? Designing aBasic Package of Benefits, 8 J. CONTEMP. HEALTH L. & POL'Y 1, 2-3 (1992) (pointing outthat Americans may have had more difficulty than Europeans with defining standard ofhealth care, because Americans started to search for the definition at the time of techno-logical advances and public's higher expectations); Council on Ethical and JudicialAffairs, AMA, Ethical Issues in Health System Reform: The Provision of Adequate HealthCare, 272 JAMA 1056, 1058 (1994) (stating that the government should create a stan-dard ensuring that every individual has adequate health care and emphasizing that ade-quate health care is case specific); David M. Eddy, What Care Is 'Essential'? WhatServices Are 'Basic'?, 265 JAMA 782, 782, 786 (1991) (stating that defining essentialcare is thwart with difficulties because it must include considerations of cost, benefitsand harms); see also NORMAN DANIELS ET AL., BENCHMARKS OF FAIRNESS FOR HEALTH CAREREFORM (1996) (developing a tool for examining the fairness of health care reformproposals).

19. See CESCR General Comment No. 14, The Right to the Highest Attainable Standardof Health, U.N. ESCOR, 22d Sess., U.N. Doc. E/C.12/2000/4 (2000); see also Eleanor D.Kinney, The International Human Right to Health: What Does This Mean for Our Nationand World?, 34 IND. L. REv. 1457, 1467-71 (2001) (discussing General Comment 14 andarguing that it further develops the concept of the international human right to health).

289


1. A statement of aspiration, stating a goal in relation to the health of itscitizens.

20

2. A statement of entitlement, stating a right to health or health care orpublic health services.2 1

3. A statement of duty, imposing a duty to provide health care or publichealth services. 22

4. A programmatic statement, specifying approaches for the financing,delivery or regulation of health care and public health services. 2 3

5. A referential statement, incorporating by specific reference any interna-tional or regional human rights treaties recognizing a human right tohealth or health care. 24

In our judgment, the statements of duty and entitlement reflect agreater national constitutional commitment to health and health care than

20. The following is an example of an aspirational statement: "The authorities shalltake steps to promote the health of the population." GRw. NED. [Constitution] ch. I, art.22, reprinted & translated in 13 CONSTITUTIONS OF THE COUNTRIES OF THE WORLD: THE

NETHERLANDS 4 (Gisbert H. Flanz ed., Dr. Frank Hendrick trans., 2003).21. The following is an example of an entitlement statement: "All citizens shall have

the right to medical and health care, within the terms of the law, and shall have the dutyto promote and preserve health." Moz.A. CONST. pt. II, ch. III, art. 94, translated &reprinted in 12 CONSTITUTIONS OF THE COUNTRIES OF THE WORLD: MOZAMBIQUE 42 (AlbertP. Blaustein & Gisbert H. Flanz, eds., Afr. Eur. Inst. trans., 1992).

22. The following is an example of a duty statement:The State shall legislate on all questions connected with public health andhygiene, endeavoring to attain the physical, moral, and social improvement of allinhabitants of the country. It is the duty of all inhabitants to take care of theirhealth as well as to receive treatment in case of illness. The State will providegratis the means of prevention and treatment to both indigents and those lack-ing sufficient means.

URU. CONST. § II, ch. II, art. 44, translated & reprinted in 20 CONSTITUTIONS OF THE COUN-TRIES OF THE WORLD: URUGUAY (Booklet 1) 5 (Gisbert H. Flanz ed., Reka Koerner trans.,1998).

23. The following is an example of a programmatic statement:(1) Citizens have the right to health insurance that guarantees them accessiblemedical care and to free medical care under conditions and according to theprocedure determined by law.(2) The citizens' healthcare is financed from the state budget, by employers, bypersonal and collective insurance payments, and from other sources under con-ditions and according to a procedure determined by law.(3) The state protects the health of the citizens and encourages the developmentof sports and tourism.(4) No one may be subjected to forced medical treatment or sanitary measuresexcept in cases provided by law.(5) The state exercises control over all health institutions as well as over theproduction of pharmaceuticals, biologic[al] substances and medical equipmentand over their trade.

BULG. CONST. ch. II, art. 52, translated & reprinted in 3 CONSTITUTIONS OF THE COUNTRIES

OF THE WORLD: BULGARIA 11 (Gisbert H. Flanz ed., 2004).24. The following is an example of a referential statement: "International treaties, to

whose ratification Parliament has consented and by which the Czech Republic is obli-gated, are part of the legal order; if the international treaty provides for something otherthan the law, the international treaty shall be used." USTAVA CR. [Constitution] (CzechRep.) ch. I, art. 10, translated & reprinted in 5 CONSTITUTIONS OF THE COUNTRIES OF THEWORLD: CZECH REPUBLIC 2 (Gisbert H. Flanz ed., Gisbert H. Flanz & Patricie H. Wardtrans., 2003).

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other types of statements. Thus, we distinguished statements of duty fromprogrammatic or aspirational statements in that the language clearlyimposed an unqualified duty on the state to meet the health needs of the

nation's population. Similarly, entitlement statements conferred an

unqualified right to health and health care. We are not certain about our

categorization of some provisions, for we were dealing with English transla-

tions of constitutions. Further, there were instances where it was difficult

to determine whether to categorize a provision as a provision of a duty orentitlement or simply as an aspirational or programmatic responsibility.However, after considering each provision, we were able to agree on thecategories.

Second, our determination that a constitution's written provisionmeets the criteria of these categories is based on a plain reading of its lan-guage. Further, categories do not reflect any judicial, statutory, or regula-

tory interpretation in the country's domestic laws, nor does the assignment

of a category reflect the enforceability of the provision through judicial orother means.

Third, we excluded constitutional provisions that mentioned health in

the following contexts: (1) rights and obligations regarding a healthy envi-

ronment, (2) rights and obligations with respect to a healthy workplace, (3)

a right to life generally, and (4) provisions authorizing governments to

enact laws to promote the general welfare, as in the U.S. Constitution.25

Finally, we considered the issue of the provision's universality.Universality addresses whether a constitutional provision applies to every

person in the country or whether it applies to subsets of the population,e.g., the elderly, children, mothers or workers. In this study, we indicatespecifically whether a provision has particular application. Otherwise, a

provision is presumed to have general application. The majority of relevantprovisions were universal.

II. Findings

According to our criteria, 67.5% of the constitutions of the world havea provision addressing health or health care. In almost all of these constitu-tions, the provisions regarding health and health care are universal, ratherthan limited to particular groups. Only rigid constitutions had a relevantprovision regarding health or health care; all flexible constitutions were

silent on the subject. Appendix I lists the countries of the world and theprovisions in their constitutions, if any, regarding health and health care.

A. Provisions on Health and Health Care as a Function of Time

The fact that countries adopted their constitutions during differenthistorical periods is a critical factor in determining whether the constitu-tion addresses health or health care. Constitutions reflect the period oftheir formation as well as the level of the constitutional law development in

25. U.S. CONST. art. I, § 8.


other countries and international law at the time.2 6 Constitution makinghas occurred in specific periods of history-generally spawned by cataclys-mic events affecting groups of nations in a particular geographic territory.

Figure 1States with Constitutions Adopted Before World War II

Date of Date of Provision on HealthCountry Adoption Modification or Health Care

San Marino 1600

United Kingdom 1600

United States 1787

Netherlands 1814 1983 *

Norway 1814 1884

Belgium 1831 1993 *

Argentina 1853 1994 *

Canada 1867 1982

Luxembourg 1868 *

Switzerland 1874 *

Tonga 1875 1967

Australia 1900

Bhutan 1907

Mexico 1917

Finland 1919 *

Austria 1920 1945

Liechtenstein 1921 *

Latvia 1922 1998 *

Lebanon 1926 1989

Ireland 1937

Iceland 1944 *

For purposes of this analysis, the basic periods of constitution makinghave been as follows: 2 7 (1) England and its common law progeny,

26. See generally Jan-Erik Lane, Constitutions and Political Theory, ch. 2 (1996) (dis-cussing origins of modern constitutions); James T. McHugh, Comparative Constitu-tional Traditions 4 (2002) ("A constitution is an extrapolation of political, philosophical,sociological, economic, and other ideas and [ I a manifestation of a higher purpose.");Edward McWhinney, Constitution-Making: Principles, Process, Practice 6-9 (1981)(pointing out that constitutions reflect not only legal principles but political and socialdevelopments as well); Walter F. Murphy, Constitutions, Constitutionalism, and Democ-racy, in Constitutionalism and Democracy 3, 7-14 (Douglas Greenberg et al. eds., 1993)(providing overview of constitutions' functions and how they can reflect nationalchanges); Political Culture and Constitutionalism: A Comparative Approach (Daniel P.Franklin & Michael J. Baun eds., 1995) (containing articles comparing political culturesand constitutional traditions in different countries).

27. See Jon Elster, Forces and Mechanisms in the Constitution-Making Process, 45 DUKEL.J. 364, 368-70 (1995) (analyzing constitution making process and factors thatadvance and hinder it). Our list of periods of constitution making was inspired by asimilar list in this article.

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1660s-present, including the United States;28 (2) European democraticstates and constitutional monarchies, 1887-1960, including liberatednations after World War II in both the democratic West and the Commu-nist Eastern Bloc; 29 (3) emergence of new nations from former colonies inAfrica, Asia, and the Middle East, 1945-1960; 30 (4) the Latin Americanconstitutional revolution, 1983-1994, replacing constitutions adopted inthe 19th and 20th centuries following liberation from colonial rule;3 1 and(5) emergence of new democracies from the former Communist Bloc,1989-present. 32 During the last two periods, constitution making becamesomething of a cottage industry among academics with the constitutions ofmany countries written in consultation with the same experts. 3 3 Most of

the constitutions were adopted after World War II. Indeed, only twenty-one constitutions adopted before World War II are currently in place and,of these, nine countries have substantially revised their constitutions sinceWorld War II. Of the twenty-one states, nine have provisions regardinghealth and health care in their constitutions, many of which were addedwhen constitutions were revised after World War II. (See Figure 1).

28. See, e.g., WILLI PAUL ADAMS, THE FIRST AMERICAN CONSTITUTIONS: REPUBLICAN IDE-

OLOGY AND THE MAKING OF THE STATE CONSTITUTIONS IN THE REVOLUTIONARY ERA (Rita &Robert Kimber trans., Rowman & Littlefield Publishers, Inc. 2001) (1973); GEORGE BUR-

TON ADAMS, THE ORIGIN OF THE ENGLISH CONSTITUTION (1912); S.E. FINER ET AL., COMPAR-

ING CONSTITUTIONS (1995); Gerhard Casper, Changing Concepts of Constitutionalism: 18thto 20th Century, 1989 SUP. CT. REV. 311 (giving theoretical and philosophical back-ground on American and Western European constitutionalism); Neil MacCormick, Doesthe United Kingdom Have a Constitution? Reflections on MacCormick v. Lord Advocate, 29N. IR. LEGAL Q. 1 (1978).

29. See, e.g., FIVE CONSTITUTIONS (S.E. Finer ed., 1979); HERBERT J. SPIRO, GOVERN-

MENT BY CONSTITUTION 3-42 (1959).30. See, e.g., JUDITH M. BROWN, MODERN INDIA: THE ORIGINS OF AN ASIAN DEMOCRACY

(1985); JAMES CRAWFORD, THE CREATION OF STATES IN INTERNATIONAL LAW (1979); JeffHaynes, Democracy in the Developing World (2001); H.W.O. Okoth-Ogendo, Constitu-tions Without Constitutionalism: Reflections on an African Political Paradox, in Constitu-tionalism and Democracy 65 (Douglas Greenberg et al. eds., 1993).

31. See DAVID LEHMANN, DEMOCRACY AND DEVELOPMENT IN LATIN AMERICA: ECONOMICS,

POLITICS AND RELIGION IN THE POST-WAR PERIOD (1990); Carlos Santiago Nino, Transitionto Democracy, Corporatism, and Presidentialism with Special Reference to Latin America,in CONSTITUTIONALISM AND DEMOCRACY 46 (Douglas Greenberg et al. eds., 1993); THE

U.S. CONSTITUTION AND THE CONSTITUTIONS OF LATIN AMERICA 56-58 (Kenneth W.Thompson ed., 1991); Jonathan Miller, Judicial Review and Constitutional Stability: ASociology of the U.S. Model and Its Collapse in Argentina, 21 HASTINGS INT'L & COMP. L.REV. 77 (1997) (discussing the Argentinean Supreme Court's role in the 19th and 20thcenturies and proposing a sociological model of judicial review).

32. See, e.g., CONSTITUTION MAKING IN EASTERN EUROPE (A.E. Dick Howard ed., 1993);RETT R. LUDWIKOWSKI, CONSTITUTION-MAKING IN THE REGION OF FORMER SOVIET DOMI-

NANCE (1996); Jon Elster, Constitution-Making in Eastern Europe: Rebuilding the Boat inthe Open Sea, 71 PUB. ADMIN. 169 (1993); Stephen Holmes & Cass R. Sunstein, ThePolitics of Constitutional Revision in Eastern Europe, in RESPONDING TO IMPERFECTION: THE

THEORY AND PRACTICE OF CONSTITUTIONAL AMENDMENT 275 (Sanford Levinson ed., 1995).33. See Albert P. Blaustein, Constitution Drafting: The Good, the Bad, and the Beautiful,

2 SCRIBES J. LEGAL WRITING 49 (1991) (illustrating how countries transplant constitu-tional language from other countries' constitutions and how poor drafting can provideloopholes for political agendas); Lis Wiehl, Constitution, Anyone? A New Cottage Indus-try, N.Y. TIMES, Feb. 2, 1990, at B6 (discussing how American scholars assist in draftingnew constitutions, especially in Eastern Europe).


B. National Commitments to Health Care and Health Care

It is clear that not all of the countries that have provisions regardinghealth and health care in their constitutions have in practice lived up tothese mandates. Some of the most resounding constitutional commitmentsto health and health care are in poor countries with tenuous democracies.Haiti's constitution is exemplary of this phenomenon:

Strengthen national unity by eliminating all discrimination between theurban and rural populations . . . and by recognizing the right to progress,information, education, health, employment and leisure for all citizens.3 4

The State has the absolute obligation to guarantee the right to life, health,and respect of the human person for all citizens without distinction, in con-formity with the Universal Declaration of the Rights of Man.3 5

The State has the obligation to ensure for all citizens in all territorial divi-sions appropriate means to ensure protection, maintenance and restorationof their health by establishing hospitals, health centers and dispensaries. 36

Many countries that devote extensive resources to assuring the healthof and providing health care to their populations have no relevant provi-sions in their constitutions regarding health or health care. Figure 2 listscountries with the highest per capita government expenditures for healthcare and provides an "intensity score," which is a rough measure of a coun-try's commitment to health and health care in its constitution.3 7 Onlythree of these countries have provisions conferring an entitlement to healthand/or imposing a duty on the state to provide health care (scale 2 and 3).Thirteen countries have no provisions regarding health and health care intheir constitutions (scale 0).

A crude indicator of the national commitment to health and healthcare is the degree of the nation's financial support. The WHO publishesdata on national health expenditures for the nations of the world, includ-ing data on governments' per capita expenditures on health care programsand services. 38 Of course, this measure provides no information on the

34. HAITI CONST. pmbl., § 5, translated & reprinted in 8 CONSTITUTIONS OF THE COUN-TRIES OF THE WORLD: HAITI 7 (Albert P. Blaustein & Gisbert H. Flanz eds., 1987).

35. Id. at tit. III, ch. 11, § A, art. 19, translated & reprinted in 8 CONSTITUTIONS OF THE

COUNTRIES OF THE WORLD: Hrn, supra note 34, at 11.36. Id. at art. 23.37. To develop this measure, we used a scale with values from "0" to "3," with 0

indicating no constitutional provision. Value "1" indicates that the country had at leastan aspirational, programmatic or referential statement in its constitution but lackedeither an entitlement or duty statement. For a country to receive the value of "2," thecountry had to have either a duty or an entitlement statement. If a constitution hadboth, it received the score of "3," which indicates the greatest constitutional commitmentto health and health care.

38. World Health Org., The World Health Report 2003: Shaping the Future, annex 5,available at http://www.who.int/whr/2003/en/Annex5-en.pdf (2003).

General government is comprised of the central or federal government; regional, state,and provincial authorities; municipal and local authorities; and autonomous trust fundsor boards implementing government policies, principally social protection agencies orsocial security schemes. General government expenditure on health is the sum of out-lays on health paid for by taxes, social security contributions, and external resources

Vol. 37


Figure 2Countries of the World with the Highest Per Capita Government Health

Expenditures, 2000

Per Capital Government ConstitutionalCountry Health Expenditures in $US Intensity Score

Luxembourg 2518 1

San Marino 2402 0

Iceland 2217 3

Germany 2067 0

Norway 2022 0

Denmark 1992 0

United States of America 1992 0

Canada 1826 0

Switzerland 1796 1

Israel 1776 0

France 1775 0

Sweden 1622 0

Belgium 1616 2

Australia 1601 0

Japan 1540 1

Netherlands 1523 1

Austria 1513 0

Italy 1503 3

Ireland 1474 0

United Kingdom 1437 0

quality of health care paid for or whether the expenditure is sufficient toaddress health care needs.

The number or strength of constitutional provisions does not appear

to have a determinative role in the amount of resources that countriesspend for the health care of their populations. Specifically, countries thatexpressed the greatest constitutional commitment to health-evidenced byinclusion of both a statement of entitlement and duty39 -had an average

government per capita expenditure for health care of $308 in 2000. How-ever, the same average for countries that had no provision regarding healthor health care was $716.95. When observed on a regional basis, as illus-trated in Table 1, there is no correlation between the intensity of constitu-tional commitments and average per capita government expenditures forhealth and health care.

(without double-counting the government transfers to social security and extra budget-

ary funds). Social security and extra budgetary funds on health include the expenditureto purchase health goods and services by schemes that are compulsory, under govern-mental control, and cover a sizable segment of the population. See id., Statistical Annex

at 139-43, at http://www.who.int/whr/2003/en/AnnexNotes.pdf.39. See supra note 37 for an explanation of the methodology for developing the

"intensity score."


Table 1Constitutional Intensity Score and Average Per Capita Government Expenditures for

Health Care by Region

Average Per CapitaNo. of No & % of Total No & % of Total Government

Region Countries with Score 3 with Score 0 Expenditures ($US)

African Region 47 7 13 59.6714.9% 27.6%

American Region 34 8 15 267.9322.8% 44.1%

Eastern 21 3 7 335.56Mediterranean 14.3% 33.33%Region

European Region 50 15 9 936.3330% 18%

South East Asian 9 1 2 791.54Region 11.1% 22.2%

Western Pacific 28 5 12 515.28Region 17.8% 42.8%

This finding is not surprising. There are many factors influencinggovernment's decisions to finance programs promoting health and provid-ing health care services. In addition, constitutions' national legalframeworks vary tremendously in at least three important ways. First, thegeneral attitude toward the constitution influences the degree to which apopulation and the representative advocacy groups look to the constitutionfor resources and remedies for the promotion of health and health care. Insome countries, the constitution is part of the political culture and isviewed as a source of protections, whereas in other countries, the popula-tion has little knowledge of the constitution and its potential for advancinglegal and social protections. Second, the degree of legal remedies, such asjudicial review, private rights of action and access to courts, and the oppor-tunity to challenge policymakers who fail to implement or enforce constitu-tional provisions regarding health and health care, vary between thecountries. Finally, many countries, particularly in the southern hemi-sphere and in other parts of the developing world, do not have the financialresources to devote to improving health or providing health care services.

Some countries have constitutional provisions that specifically men-tion the UN Universal Declaration of Human Rights and either a UN orregional treaty recognizing an international human right to health orhealth care. Of the nine countries with referential statements, only six hadratified the ICESCR, three had ratified a relevant regional treaty, and twohad not ratified any relevant UN or regional treaty. (See Figure 3).

Indeed, many countries have ratified a UN or regional treaty, recogniz-ing an international human right to health. The relevant regional treatiesof the Organization of American States are as follows: American Declara-

Vol. 37


Figure 3Incorporation of ICESCR and/or Regional Treaty

Country ICESCR Regional Treaty

Argentina * *

Comoros

Congo *

Czech Republic *

East Timor

Guatemala * *

Haiti

Latvia *

Ukraine *

tion of the Rights and Duties of Man, 40 the American Convention onHuman Rights, 4 1 and the Additional Protocol to the American Conventionon Human Rights in the Area of Economic, Social and Cultural Rights.4 2

The major African regional treaty is the African Charter on Human andPeoples' Rights.4 3 Relevant treaties for the Council of Europe are the Con-vention for the Protection of Human Rights and Dignity of the HumanBeing with Regard to the Application of Biology and Medicine (Conventionon Human Rights and Biomedicine), 44 the European Social Charter of1961, 4

5 and the European Convention of Human Rights. 46 Further, thefoundational law of the European Union,4 7 a supranational organization,also imposes obligations on its member-states irrespective of whether theyhave independently ratified the treaty.

Table 2 presents the percentage of countries that have a constitutionalprovision regarding health and health care and the percentage of countriesthat have either ratified ICESCR, a regional treaty, or both. All actions

40. American Declaration of the Rights and Duties of Man, O.A.S. Res. XXX, adoptedby the Ninth International Conference of American States (Mar. 30-May 2, 1948),BogotA, O.A.S. Off. Rec. OEA/Ser. L/V/1.4 Rev. (1965).

41. American Convention on Human Rights, Nov. 22, 1969, O.A.S. Treaty Ser. No.36, Organization of American States, O.A.S. Off. Rec. OEA/Ser. K/XVI/1.1 doc. 65 rev. 1corr. 2 (1979), 144 U.N.T.S. 123 (entered into force July 18, 1978).

42. Additional Protocol to the American Convention on Human Rights in the Area ofEconomic, Social and Cultural Rights, Nov. 14, 1988, art. 10, 28 I.L.M. 156, 164.

43. Org. of African Unity, Banjul Charter on Human and Peoples' Rights, June 27,1981, OAU Doc. CAB/LEG/67/3 rev. 5, 21 I.L.M. 58 (1982) (entered into force Oct. 21,1986).

44. Convention for the Protection of Human Rights and Dignity of the Human Beingwith Regard to the Application of Biology and Medicine: Convention on Human Rightsand Biomedicine, Apr. 4, 1997, Europ. T.S. No. 164 (entered into force Dec. 1, 1999).

45. EUROPEAN SOCIAL CHARTER, Oct. 18, 1961, Europ. T.S. No. 35 (revised May 3,1996).

46. Convention for the Protection of Human Rights and Fundamental Freedoms,Nov. 4, 1950, 213 U.N.T.S. 221, 222 (entered into force Sept. 3, 1953).

47. CONSOLIDATED VERSION OF THE TREATY ESTABLISHING THE EUROPEAN COMMUNITY,

Nov. 10, 1997, O.J. (C 340) 3 (1997).

298 Cornell International Law Journal Vol. 37

represent a fundamental legal commitment by the governments to theirpopulations with respect to health and health care, although the preciseintensity of these commitments is unknown.

III. Discussion

This Article does not address whether or how the constitutional provi-sions concerning health and health care in the constitutions of the coun-tries of the world have been implemented domestically or analyze howthese provisions could be implemented more effectively or expeditiously.These are the subjects of future research. However, a statement on healthor health care in a national constitution is important in and of itself as itrepresents explicit commitment regarding health and health care for thecountry's population. These commitments can be useful as they may beimplemented in the future, and their existence is helpful to those advocat-ing for better health and health care as well as for implementation of theinternational human right to health.

A. Meaning of Constitutional Provisions

The question of constitutional provisions' meaning is complex and hasat least two dimensions. First is the actual content of the concepts of"health" and "health care." As discussed above, 4 8 we chose to avoid consid-ering this dimension in this paper. However, the development of tech-niques for measuring and comparing national health sector performance,discussed below,4 9 is contributing greatly to more universal and meaning-ful definitions of these concepts.

Table 2

605

60

20 -

48 eesure ctd 7ur noe 96.

4 S 6.

CO n sti-nl Asplratio E nOtl- - Nnt Duy Progrmmaic ~ f ICESCR Regionl T-ray oProisoa S,

48. See sources cited supra notes 9, 16.49. See infra Part 111.B.


The second dimension of meaning refers to enforceability of the indi-vidual interest in health and health care. Customarily, lawyers and legalscholars think of the interests that constitute enforceable "rights" as theonly interests with legal meaning.50 This view of rights as "trumps" in theDworkian sense5 l exposes the problematic distinction between social andeconomic rights on the one hand and civil and political rights on the other.Often these two groups of rights are characterized, respectively, as positiverights requiring affirmative state action and as negative rights requiringstate abstention from specific conduct. This distinction quickly disappearswhen one considers that proper enforcement of so-called negative rightsoften implicates affirmative state action and that substantial implementa-tion of positive rights may well result when the state refrains from conductlimiting access to existing services.5 2

To be recognized and implemented, economic and social rights requireaffirmative state action, which creates the problem with their designationas "rights." The conventional understanding of rights is that, if violated,they assure legal remedies from courts or other authoritative adjudicativetribunals. Extant legal remedies are often tailored to addressing the denialof civil and political rights by governments or even private actors withinthe governments' jurisdiction.5 3 Under this more conventional under-standing, if rights are without legal remedies, they are simply aspirationalstatements. Such rights, some argue,5 4 water down the concept of rightsand rob it of its meaning and effectiveness.

There is a significant difference between remedies designed to preventa government or regulated private party from acting in a certain way, suchas curtailing civil rights, and a remedy intended to force a government orregulated party to provide a particular service. Specifically, the latter rem-edy implicitly asks the government or regulated private party to allocateresources as the legal remedy. Thus, in the act of granting the remedy, theadjudicator invariably steps into the role of policymaker regarding the allo-cation of resources, which is quintessentially a legislative function. Thisphenomenon poses the dilemma of who is best charged with making the

50. See, e.g., RONALD DWORKIN, TAKING RIGHTS SERIOUSLY (1977); JOHN FINNIS, NATU-RAL LAW AND NATURAL RIGHTS (1980); LON L. FULLER, THE MORALITY OF LAW (1964);H.L.A. HART, THE CONCEPT OF LAW (1961); 3 F.A. HAYEK, LAW, LEGISLATION, AND LIBERTY(1979); MATTHEW H. KRAMER ET AL., A DEBATE OVER RIGHTS: PHILOSOPHICAL ENQUIRIES(1998); JOSEPH RAZ, THE CONCEPT OF A LEGAL SYSTEM (2d ed. 1980); JEREMY WALDRON,LIBERAL RIGHTS: COLLECTED PAPERS 1981-1991 (1993); CARL WELLMAN, AN APPROACH TORIGHTS: STUDIES IN THE PHILOSOPHY OF LAW AND MORALS (1997).

51. DWORKIN, supra note 50, at 82-90.52. See Mark Tushnet, Civil Rights and Social Rights: The Future of the Reconstruction

Amendments, 25 Loy. L.A. L. REV. 1207, 1213-18 (1992) (arguing against the traditionalnotion that civil and social rights are distinct and that the former do not require govern-ment enforcement by drawing upon the similarities between the rights and the role ofcourts in their enforcement).

53. See DINAH SHELTON, REMEDIES IN INTERNATIONAL HUMAN RIGHTS LAW (1999).54. See, e.g., David Beatty, The Last Generation: When Rights Lose Their Meaning, in

HUMAN RIGHTS AND JUDICIAL REVIEW: A COMPARATIVE PERSPECTIVE 321 (David M. Beattyed., 1994).


policy call in this instance-the activist judge witnessing the deficiency, orthe reluctant legislature facing the full panoply of national needs and stateobligations.

Even liberal scholars, while comfortable with the concept of constitu-tional endorsement of economic rights, appreciate the policy choices thatgovernments must make in allocating resources for the realization of suchrights, particularly in an environment of scarce resources.5 5 More con-servative scholars, Professor Cass Sunstein for example, have argued thatthe inclusion of positive rights in the national constitutions of developingnations have deleterious impact on the development of market economiesand ultimate economic progress. 5 6 Experience in the emerging democra-cies of Eastern Europe suggests that courts have curtailed economic devel-opment by undue protection of economic rights in judicial decisions.5 7 Insum, the concern is that economic and social rights should not be enforcedjudicially because judges would be effectively put in the position of man-dating that governments spend money in a context of fixed budgetaryresources.

A more useful observation about individual enforcement of economicand social rights is that the determination of their content involves factsand issues that are not appropriate for courts or other adjudicative tribu-nals to decide. Specifically, the determination of the content of social andeconomic rights calls for a determination of what Kenneth Culp Davis calls"legislative facts."15 8 According to Professor Davis, "[legislative facts donot usually concern the immediate parties but are the general facts whichhelp the tribunal decide questions of law and policy and discretion."59

Legislative facts are distinguished from "adjudicative facts," which Profes-sor Davis describes as "[flacts pertaining to the parties and their busi-nesses and activities."'60

Lon Fuller also addresses the use of adjudication in deciding policy

55. See, e.g., Frank I. Michelman, The Constitution, Social Rights, and Liberal PoliticalJustification, 1 INT'L J. CONST. L. 3 (2003); Mark Tushnet, State Action, Social WelfareRights, and the Judicial Role: Some Comparative Observations, 3 CHI. J. INT'L L. 435 passim(2002); Robert West, Rights, Capabilities, and the Good Society, 69 FORDHAm L. REV. 1901,1915-21 (2001) (criticizing how the cost-benefit analysis circumvents attention torights); see also Mary Ann Glendon, Rights in Twentieth-Century Constitutions, 59 U. CHI.

L. REV. 519, 537 (1992) (comparing American and European approaches to positive andnegative rights).

56. See, e.g., Cass R. Sunstein, Against Positive Rights, in WESTERN RIGHTS? POST-CoM-MUNIST APPLICATION (Andr~s Saj6 ed., 1996); Cass R. Sunstein, Constitutionalism, Pros-perity, Democracy: Transition in Eastern Europe, 2 CONST. POL. ECON. 371 (1991). Seegenerally CASS R. SUNSTEIN, AFTER THE RIGHTS REVOLUTION: RECONCEIVING THE REGULA-TORY STATE (1990).

57. See Andras Sajo, How the Rule of Law Killed Hungarian Welfare Reform, 5 E. EUR.CONST. REV. 31 (1996). See generally Vicki C. Jackson & Mark Tushnet, Introduction toDEFINING THE FIELD OF COMPARATIVE CONSTITUTIONAL LAW, at xi (Vicki C. Jackson &Mark Tushnet eds., 2002).

58. 2 KENNETH CULP DAVIS, ADMINISTRATIVE LAW TREATISE 412-13 (2d ed. 1979).

59. Id. at 413.60. Id.

Vol. 37


issues.6 1 Policy concerns, such as the appropriate content of governmentprograms to assure health care services and the allocation of budgetaryresources, are "polycentric" issues that are least amenable to satisfactoryadjudication. 62 The resolution of polycentric issues inevitably involvesmultiple implications and trade-offs to accommodate various exigenciesand constituencies. Their resolution involves making decisions aboutDavis' "legislative facts," the accuracy or persuasiveness of which are noteasily determined through adjudicative techniques.

However, conceiving of rights as only those interests that are enforcea-ble in a court or adjudicative tribunal is a very narrow concept. Why dorights have to be legally enforceable in that manner for validation? A rightmight also include a policy imperative established by authoritative lawsuch as a constitution, treaty, or other legal mandate. As such, the right aspolicy imperative requires bound states to take legislative action and arraynational budgetary priorities in ways that fulfill that policy imperative. Itis beyond the scope of this Article to outline a theory of rights as policyimperatives. However, this notion exposes the constrained understandingof rights as trumps enforceable in courts and adjudicative tribunals thatinforms much of the discussion of rights in American jurisprudence. 6 3

This idea is captured in the thoughtful observation of an Eastern Europeanscholar, commenting on economic and social rights as human rights:

To call social and economic rights "human rights" is not to make them auto-matically enforceable. Human rights should set standards and provide justi-fication for moral claims to decent treatment, and should guide legislators inthe implementation of legal rights.6 4

In other words, policy imperatives created by constitutional provisionsand international human rights treaties can be used as standards for theevaluation of government's performance with respect to the realization ofeconomic and social human rights. They can also be used as the theoreti-cal and moral basis of political advocacy. An important question notexplored here is the degree to which courts accord remedies to interestedparties for government's failures to implement these policy imperatives in ameaningful fashion.

B. Performance Comparison as a Realization Strategy

Once we have allocated the realization and implementation of eco-nomic and social rights back into the legislative arena, the next task is todetermine how to protect individuals and institutions with legitimate inter-ests in the relevant policy imperatives. The major means of protection ofthese interests is legislative action and administration that results in fulland effective implementation of the policy imperative. Legal challenges

61. See Lon L. Fuller, The Forms and Limits of Adjudication, 92 HARv. L. REV. 353,394 (1978).

62. Id. at 394-404.63. See sources cited supra note 50.64. Wiktor Osiantynski, Social and Economic Rights in a New Constitution for Poland,

in WESTERN RIGHTS? POST-COMMUNIST APPLICATION 233, 241 (Andras Saj6 ed., 1996).


raise the specter of requiring policymakers to make different policy andbudgetary choices but they cannot develop and implement a nationalhealth plan or require other steps that enhance access to high quality andaffordable health care in a national population in the long run.

Further, the type of facts needed to advocate for legislative action andprogrammatic progress is key. Advocates must provide sound and persua-sive "legislative facts" to move legislatures and administrative agenciestoward effective action. To that end, some developments in health servicesresearch are useful in developing such persuasive legislative facts. In par-ticular, health services researchers have developed important new mea-sures for comparing outcomes of health care and national health sectorperformance.

65

Historically, the predominant measure for comparing performance ofnational health care sectors has been health care expenditures, measuredeither as a fraction of gross domestic product (GDP) or per capita. 66 Thismeasure is, at best, a proxy as to where a country stands in reducing healthrisks and in developing measures for assessing and comparing nationalhealth sector performance that are more precise. There is also more com-prehensive information about the comparative characteristics of nationalhealth care sectors. 6 7

Most notably, public international organizations have done much tomake these important bodies of health services research and policy scienceresearch readily accessible to policymakers and advocates. In its WorldHealth Report 2000, the WHO conducted its first ever analysis of nationalhealth care systems.68 In 2002, the WHO published a book specificallyaimed at measuring population health using comprehensive indices bycombining information on mortality and ill-health. 6 9

The Organization for Economic and Cultural Development (OECD)has been especially active in developing measures for comparing nationalhealth systems. For many years, OECD data has provided important infor-mation for the comparison of national health care systems to date. 70 Morerecently, OECD has developed a system of health accounts that establishesa conceptual framework for comparing national health care sectors. 7 1

OECD also proposed the International Classification for Health Accounts

65. See infra notes 68-72.66. See Anders Anell & Michael Willis, International Comparison of Health Care

Systems Using Resource Profiles, 78 BULL. WORLD HEALTH ORG. 770 (2000).67. See, e.g., Social Security Administration, Social Security Programs Throughout the

World, at http://www.ssa.gov/policy/docs/progdesc/ssptw/index.html (last visited Mar.15, 2004).

68. See World Health Org., The World Health Report 2000, Health Systems: ImprovingPerformance, available at http://www.who.int/whr2001/2001/archives/2000/en/index.htm (2000).

69. See World Health Org., Summary Measures of Population Health: Concepts, Eth-ics, Measurement and Applications (Christopher J.L. Murray et. al. eds., 2002).

70. See, e.g., Gerard F. Anderson &Jean-Pierre Poullier, Health Spending, Access, andOutcomes: Trends in Industrialized Countries, HEALTH AFF., May-June 1999, at 178.

71. See Org. for Econ. Co-Operation and Dev., A System of Health Accounts, OECD(2000).

Vol. 37


(ICHA), which addresses the dimensions of health care by functions ofcare, providers of health care services, and funding sources. 7 2 In addition,OECD has analyzed disease-based methods and indicators for comparinghealth sector performance. 7 3

The World Bank has also been active in developing important statisti-cal indicators that can be used in assessing the performance of nationalhealth care systems as well as the government's performance in general.The World Bank has launched a website containing technical notes onquantitative techniques for the analysis of health equity issues in a coun-try.74 It has also developed a set of indicators for the quality of a state'sgovernance that addresses six dimensions of governance: voice andaccountability; political stability and absence of violence; governmenteffectiveness; regulatory quality; rule of law; and control of corruption. 7 5

These indicators are representative of the array of indicators and methodol-ogies that have been developed in recent years to assess national healthsector performance, particularly on a comparative basis. Good informa-tion can be a powerful tool for policymakers as they make policy and budg-etary decisions to improve health sector performance. In addition, thesemeasures and methodologies are useful to advocates seeking to make con-stitutional provisions regarding health and health care as well as the inter-national human right to health a reality. Indeed, the United Nations hasemphasized the importance of statistical indicators in achieving the realiza-tion of international human rights in general:

Statistical indicators are a powerful tool in the struggle for human rights.They make it possible for people and organizations-from grassroots activ-ists and civil society to governments and the United Nations-to identifyimportant actors and hold them accountable for their actions. This is whydeveloping and using indicators for human rights has become a cutting-edgearea of advocacy. 76

Conclusion

The remaining question is what these constitutional provisions meanas a practical matter for people throughout the world in need of health careservices and public health measures. Obvious socio-economic disparitiesbetween the counties mean that constitutional framers had different under-

72. See id. §§ 9-11, at 111-54.73. See Org. for Econ. Co-Operation and Dev., A Disease-Based Comparison of

Health Systems: What Is Best and at What Cost?, OECD (2003).74. World Bank, Quantitative Techniques for Health Equity Analysis: Technical Notes, at

http://www.worldbank.org/poverty/health/wbact/health-eq.htm (last visited Mar. 15,2004).

75. World Bank, Indicators of Quality of Governance Worldwide, at http://www.worldbank.org/wbi/governance/govdata2002/ (2003); see also Daniel Kaufmann et al., Gov-ernance Matters III: Governance Indicators for 1996-2002, at 3-4 (World Bank PolicyResearch, Working Paper No. 3106, 2003), at http://www.worldbank.org/wbi/govern-ance/pdf/govmatters3.pdf (last visited Mar. 15, 2004).

76. United Nations Dev. Programme (UNDP), United Nations, Human DevelopmentReport 2000, at 89 (2000).


standings of a right to health and health care as well as the obligations ofstates to provide or facilitate the provision of health care services with ser-vices to realize these rights. Moreover, even nations with more resourcescan have significant deficiencies in their health care sectors in terms ofaccess, cost, and quality. Nevertheless, the presence of these constitutionalprovisions exhibits a national commitment to an important human right.They also establish a policy imperative for the legislative and administra-tive action. With recent scholarship in comparative health policy andadvances in techniques for measuring and comparing health system per-formance, a consensus is emerging as to what services a national healthsystem should assure or provide and what its goals, in terms of health andhealth care, should be. These developments will assist in bringing mean-ing and progress to the realization of the international human right tohealth throughout the world.


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