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The chapter examines the extent to which the right to health language, concepts and approaches of Article 12 of the International Covenant on Economic, Social and Cultural Rights (ICESCR) are mirrored in health jurisprudence in the European region. In particular the approaches of the European Court of Human Rights, the European Committee of Social Rights, European Committee for the Prevention of Torture and the Court of Justice of the European union (CJEU) to issues of health and rights are considered. The chapter suggests that with the exception of the CJEU approach, there is evidence of an emerging consensus of approach in the European region beyond the use of the phrase 'right to health'

This collection of 16 essays by 19 contributors calls into question the notion of domestic justiciability across a wide range of human rights issues, such as health, human dignity, criminal justice, property and transitional democracy. The authors offer critical analyses of a number of rights frameworks, focusing in considerable detail upon specific countries (e.g. Libya, Colombia, Ireland, the United Kingdom, Northern Ireland, South Africa, Nigeria, Zimbabwe, Kenya, India) and regions (e.g. Europe, Africa) to highlight the various challenges which continue to vex human rights advocates and scholars. In doing so they pinpoint some of the major tensions that still exist within developing and developed jurisdictions, via a myriad range of perspectives. The essays collectively present a diverse assortment of themes unified by a single ‘golden thread’ – that of the domestic interpretations given to human rights protections. They raise questions as to how such rights might be made substantive at the level of domestic implementation, and query the extent to which these rights can, or even should, be enforced by the courts. The potential strains in the relationship between human rights and the rule of law, is further called into question by another central theme: that of human dignity. A fundamental dilemma arises in respect of the extent to which a ‘right’ to dignity can best be promoted, protected or monitored by domestic decision-makers. Similar issues are apparent within the context of the protection of those human rights which increasingly tend to engage social, political or economic considerations and interests. Whilst these arguments are often framed principally in terms of ‘rights,’ the collective message that emerges from this book is that such rights may often be, in fact, essentially non-justiciable. Readers of this text will perhaps feel compelled to reflect carefully and fully upon what it tells us about human rights law generally, and the extent to which such rights may be truly amenable to adjudication by the courts.

The need for some form of ‘fairness agenda’ has been cited on several occasions in connection with the UK’s ongoing programmes of welfare reform. That the state has an over-arching duty to preserve finite resources, whilst also promoting just and ‘equitable outcomes’ via its decision-making processes, has also been noted in a number of recent cases arising out of the introduction of ‘austerity measures.’ Whether equitable concepts are set to expand upon basic equality principles in cases involving adequate living standards remains to be seen. What does seem fairly clear is that budgetary limitations have the potential to impact significantly upon the lives of the most vulnerable members of society, particularly in respect of such particularly ‘fragile rights’ as housing or health care provision. This is especially so where certain socio-economic rights have tended to require considerable levels of financial and political bolstering, in the absence of which they risk being forever framed as merely aspirational in nature, suitable only for some gently progressive form of realization. Litigation in domestic courts remains key: as Harris argued, ‘non-justiciability may be revealed as the reason for there being no legally enforceable rights.’ Equally, the notion of a justiciable right to an adequate standard of living is perhaps still a little too ‘malleable,’ to be considered on a ‘justiciability-par’ with weightier civil or political rights. This chapter will argue that a rights-template tied to the notion of ‘socio-economic equity’ (rather than equality) could frame domestic judges as the ‘trustees’ of public budgets, and indeed of the socio-economic rights that such funds are meant to protect and promote. This could in turn potentially serve to challenge at least some of the increasingly profound ‘cycles of poverty that can only be broken through structural reforms.’ The role of domestic courts is a fundamental, and essentially fiduciary one: judges are best placed to keep reminding legislators and policy-makers of the need to identify (and avoid dipping below) clearly articulated rights standards which should in themselves be firmly grounded upon such key rights concepts as human dignity and ‘bodily integrity.’

The ‘rationing’ of health and social care within the Kingdom (UK) is an accepted reality today. As such, a growing body of case law has developed giving clear guidance on the legal principles and rights that the UK Courts look to when questions of availability and access to health and social care are brought before them. The case of McDonald v UK however highlights how limited the approach to justiciability on rationing issues is within the courts particularly when the context of a growing elderly population and finite resources is considered. While the courts in the McDonald litigation were prepared to review the procedural aspects associated with the decision making on the care provided, they were reluctant to assess in substantive terms the impact of the decision on the individual. Although dignity was acknowledged as being relevant throughout the various stages of the litigation, there was limited discussion of the concept. This chapter questions whether fuller consideration could have been given to the concept of dignity as understood within the disciplines of health and law, including Article 12 of the International Covenant on Economic, Social and Cultural Rights (ICESCR). In spite of the relationship between health and dignity being clearly acknowledged within the international law on a right to health, there is limited guidance on what dignity means within the jurisprudence on Article 12 ICESCR. However, empirical research on both health and law has the potential to develop the concept as a standard in law. The concept has been increasingly referred to within professional guidance, empirical research and within a growing body of literature and case law. This represents a body of evidence which the courts could refer to in the context of access to health and social care litigation, and which they can in turn contribute to by embedding dignity as a value that ought to be considered in decision-making on access to social and health care entitlements.