Abstract: By reflecting on the dualities al in Western human rights concepts, the right to health presents rich normative connotations in our country, and plays an important role in promoting, compelling and guiding individuals, governments and other participants. The expansion of the human rights movement and the advancement of medical technology since the end of World War II are the underlying reasons why the right to health has flourished in the field of international human rights law. Since the founding of the People’s Republic of China, China has gradually formed a relatively complete system of health laws and regulations in its Constitution.Faced with the challenges of COVID-19 prevention and control, China has clarified the value superiority of the right to health in the constitutional norms. At the same time, the concept, value and principles of the right to health are having an increasingly prominent influence on the system of civil law, criminal law, patent law and other departmental laws and regulations.

 

Keywords: the right to health · theoretical update · historical development · practical manifestation

 

At the beginning of 2020, the novel coronavirus rapidly swept around the world. Even now the world is still struggling to control the pandemic and its effects. The unprecedented public health emergency caught the world off-guard and meanwhile propels the human community to pursue a deeper-seated theory of human rights and their practical significance. China, confronted with the pandemic, has given top priority to the lives and health of its people, and thus temporarily waived such basic rights as the right to personal property, the right to personal liberty and the right to entertainment. Some other countries around the world also have taken similar measures. This practice provides new material and a larger space for expanding and enriching human rights, especially the theory pertaining to the right to health. From this perspective, this paper aims to give a clear explanation of the historical development of the right to health, the theory of the right to health, and the practice of the right to health.

 

 

 

Traditional Western human rights theory separates human rights into different classifications. For example, human rights can be “permanent human rights” or “conditional human rights” based on whether the content of the right varies or not. In other words, civil and political rights are permanent human rights and social rights change according to social conditions. According to Huntington’s theory of the contemporary world comprising different civilizations, human rights can be divided into “democratic human rights” based on individualism and liberalism in the West and “patronizing human rights” based on the cultural background of communitarianism in the East. And, based on the need for government intervention, human rights can be divided into “negative human rights” and “positive human rights.”¹

 

Some Western scholars believe that the right to health lacks a philosophical basis to be clearly defined in law, that it lacks sufficient support, and fails to be implemented in the judicial process, so it is not a legal right in the real sense,² but merely a slogan and guidance. The United States Department of State has declared, “There is no international consensus on the nature and scope of health-related rights and obligations.”³

 

But an increasing number of Western scholars have pointed out that this is one-sided and an oversimplification. They believe that even the traditional Western negative human rights also contain the positive actions of the government. For example, for negative human rights such as personal dignity, personality rights and the right to vote, the government has to set up equal protection mechanisms, establish systems and mechanisms for realizing these rights, establish mechanisms for punishing infringements, provide resources and services for protecting these rights, and improve citizens’ awareness and set up problem-solving mechanisms to promote these rights.⁴

 

 

According to the traditional human rights standard of the government, other people and social organizations providing active assistance, the right to health is considered to be a typical positive human right. However, the in-depth analysis of this right reveals that although the right to health is mainly a positive human right, it does include some negative human rights elements. The above-mentioned articles on the right to health in China’s Constitution and other laws fully illustrate this point. Through systematic analysis of these articles, it can be seen that the above three aspects of the right to health contain rich connotations, including both positive and negative human rights.

 

To begin with, the right to health incorporates the right to freedom from violation and interference stipulated in the traditional concept of negative human rights, including the freedom over one’s own body and health-related information, the freedom from forced treatment and medical experiment without consent, and the right to decide on one’s own health care or treatment plan. All of these are mainly manifested in the form of “the right to life, the right to one’s body, the right to health and such rights enjoyed by civil subjects” as stipulated in the Civil Code of the People’s Republic of China.

 

Second, the right to health includes the right to entitlement in the concept of positive human rights, including equal and timely access to basic medical services and medical security that are suited to the social and economic development level, the opportunity to keep the top level of health, the prevention and control of disease, the access to essential drugs, health protection for pregnant women and children, the access to relevant health education and information, and the participation in national and community health decisions. It is mainly manifested in the Constitution of the People’s Republic of China and the Law of the People’s Republic of China on the Promotion of Basic Medical and Health Care (hereinafter referred to as the Law on Basic Medical and Health Care Promotion) that “citizens shall, in accordance with the law, enjoy the right to obtain basic medical services from the state and society.”

 

Last but not least, the right to health covers the duties undertaken by the government to ensure positive human rights, such as developing medical and health undertakings, providing basic medical and public health services for all, supervising the quality of medical treatment and health care, and collecting funds to pay for medical treatment and other duties. The main forms are what are stipulated in the Constitution of the People’s Republic of China, the Law on Basic Medical and Health Care Promotion and the information legislation, i.e., the duties and authority of the government to develop and regulate medical and health services and to provide medical and public services, such as “the state to implement the Healthy China Strategy”, “improve health protection”, “build a healthy environment”, “develop the health industry”, “improve the health level of citizens in the whole life cycle”, “establish the basic medical and health system”, and “increase the financial input in medical and health undertakings.”

 

In conclusion, the right to health, as a basic civil right established and guaranteed by Chinese laws, includes not only negative human rights such as physical intactness and health inviolability enjoyed by citizens based on civil law, but also the right to access corresponding medical services enjoyed by citizens based on the Constitution and other laws. Moreover, it cannot be separated from the responsibilities of the government under the Constitution and the Administrative Law. Therefore, the right to health cannot be reduced to negative human rights, nor can it be simply reduced to “the right to obtain material assistance” in traditional constitutional theory, otherwise the rich connotations of the right to health, such as the positive human rights for the government to meet the growing health needs of the people would fail to be realized, which would not be in line with social development and the Healthy China strategy.

 

 

The right to health is an individual right but involves the government, other social organizations and individuals. This paper takes Health Care Promotion in the Law on Basic Medical and Health Care Promotion as an example to make a special analysis on the legal relationship between individuals and the government and other participants. 

 

The Law on Basic Medical and Health Care Promotion includes the concept of “health care promotion” and provides specific provisions on health care promotion in 13 articles of Chapter 6. Health care promotion is a new concept promoted by the World Health Organization. It holds that there are three main categories of factors that determine an individual’s health, namely the social and economic environmental factors, physical environmental factors such as safe drinking water, and air quality, housing and transportation, and personal factors including individual characteristics and behavioral patterns⁵. The WHO’s Ottawa Charter for Health Promotion lists peace, education, food, income, a stable ecological environment, sustainable resources, social justice and equality as prerequisites for health.⁶ According to a study on the determinants of health published in September 2007 in the New England Journal of Medicine, social circumstances account for 15 percent, environmental exposure for 5 percent, health care 10 percent, genetic predisposition 30 percent, and behavioral patterns 40 percent (see Figure 1).⁷ Thus, individual behavior is the foremost factor for health. For the purpose of advocating healthy behaviors and lifestyles to develop fitness and keep healthy, the WHO held a meeting in 1987 in Ottawa, Canada, and adopted the Ottawa Charter for Health Promotion, emphasizing that health promotion shall be pursued via a healthy lifestyle.

 

How does the legal norm of health care promotion play a role? As stipulated in Article 69 of the Law on Basic Medical and Health Care Promotion,“Citizens, as the first responsible persons for their own health, shall establish and practice the health management concept responsible for their own health... and form a healthy lifestyle that suits their own and family characteristics.” It is the authorization norm in legal terms in which the laws grant some rights and interests to the actor, who decides the path and way of exercising rights and interests themselves. Whether to smoke or drink, for instance, is a person’s own choice. Therefore, health care promotion shall take individual autonomy, i.e., negative human rights, as the core.

 

Meanwhile, the mandatory provisions can be incorporated into laws since every right has its boundary, and everyone’s right to health has the boundary of not infringing on the rights and public interests of others. As clearly stated in Paragraph 2, Article 69 of the Law on Basic Medical and Health Care Promotion, “Citizens shall respect others’ right to health and benefits and shall not damage others’ health or public interests.” For example, smoking is a personal freedom and choice but secondhand smoke may harm the health of others. Therefore, the law stipulates that smoking shall be controlled in public places. That is to say, when individual rights affect the rights of others or the public interests, intervention is mandatory, which embodies the mandatory legal norms in Law on Basic Medical and Health Care Promotion, namely, the right to health of the public is protected by legal compulsion. Another example is the mandatory role of law in protecting public health, which requires everyone to wear masks and maintain social distancing in public places during the COVID-19 epidemic as part of the prevention and control measures. From this perspective, the protection of the right to health requires the government to play an active role, which is an integral part of the positive human rights in the right to health.

 

In addition, the law has a positive guiding role as the government will advocate and promote certain behavioral patterns through legal norms. Most articles in Chapter Ⅵ of the Law on Basic Medical and Health Care Promotion regulate the responsibilities and obligations of governments, health care institutions, education, sports and publicity, grass-roots self-governing bodies and social organizations, employers and operating units in public places to guide, publicize and promote health care. These articles indicate that the law requires the above-mentioned institutions and units to provide assistance, conditions and space for the development and promotion of healthy lifestyles, proving that the active role of government and other institutions and organizations featuring positive human rights is required to protect health.

 

The promotion of health is centered on an individual’s right to choose, this, however, requires the active role of the government, society and other institutions to guide the individual citizens to choose a healthy lifestyle and promote individual and public health.

 

 

 

Health is the premise for everyone to settle down and the basic condition for the pursuit of a happy life and is even related to the overall situation of national rejuvenation and prosperity. Particularly after withstanding the severe test of COVID-19, the whole society has fully realized that “health is the most important indicator of a happy life. Health is 1, and all the rest are 0. Without 1, 0 makes no sense.”⁹

 

Personal health is referred to as the right to health, in law everyone has the right to have and keep good health. But it was not until after World War II that health was proposed as a human right.¹⁰ There was no right to health as an independent legal right before World War II. Instead, health-related rights were incorporated into social rights, and they and the protection of public health were expressed in the constitutions and laws of only a few countries. For example, the Mexican Constitution of 1843 included the responsibility of the Government to guarantee public health, and the German Weimar Constitution of 1919 and the Chilean Constitution of 1925 had similar social and economic rights, including the protection of public health and health insurance. The right to health was mentioned more specifically in Article 42 of the 1936 Constitution of the Soviet Union, which stipulated that “citizens of the Soviet Union have the right to health protection” and “the right shall be guaranteed by free and high-quality medical services provided by the national medical institutions.” One reason that it health was not regarded as a human right at first was because modern medicine in its initial stages had no remedies or treatments for many diseases, so the people’s life expectancy was relatively short. The other reason is that since capital was primarily chasing after the market profit and capital appreciation during the rise of capitalism based on the theory of “Social Darwinism” and the laws on property rights and freedom of contract, the right to health of human beings, especially of female workers and child laborers, were subject to “labor contracts” signed on the basis of the freedom of contract.¹¹

 

After World War II, human society abhorred genocide and other human rights abuses, and the natural law theory, which focused on human rights, revived in the jurisprudential circle. The theory and practice of human rights developed greatly, and countries took national health as the goal of national development. With the promotion of most countries, the United Nations established the World Health Organization and gradually built up the international normative system of the right to health based on the UN Convention on Human Rights and the Constitution of the World Health Organization. Under the exemplary and guiding role of the Convention, more and more countries incorporated the right to health into their constitutions or laws. Even some countries that did not did not include the right to health in their legal framework were influenced by the right to health in international law when formulating their domestic health policies.¹²

 

In 1945, to promote solidarity in solving global health problems, the United Nations established the World Health Organization at the initiation and promotion of some member states including China.¹³ In 1946, the Constitution of the World Health Organization defines health as “a state of complete physical, mental and social wellbeing, and not merely the absence of disease or infirmity,” and stated for the first time that “the enjoyment of the highest attainable standard of health is one of the fundamental rights of all. It is without distinction based on race, religion, political belief, economic or social situation.” This article is only the objective and vision of the World Health Organization and is not yet binding under international law. But based on this groundbreaking article, the Universal Declaration of Human Rights approved in 1948 enshrined the right to health in international human rights law.¹⁴ As stipulated in Paragraph 1, Article 25 of the Declaration, “Everyone has the right to a standard of living adequate for the health and well-being of himself and of his family, including food, clothing, housing and medical care and necessary social services.” Although it reaffirms the value of the right to health, it is more conservative in expression by only regarding the right to health as a condition for maintaining the necessary standard of living. Article 12 of the 1966 International Covenant on Economic, Social and Cultural Rights (hereinafter referred to as the Covenant 1966) states that the enjoyment of the highest attainable standard of physical and mental health is a fundamental human right’ and it sets out a number of steps that States parties should take to exercise the right. This is the first time that the right to health appeared in the form of a legally binding convention. Afterward, the articles related to the right to health in the International Convention on the Elimination of All Forms of Racial Discrimination (1965), Convention on the Elimination of All Forms of Discrimination against Women (1979), Convention on the Rights of the Children (1989), Convention on the Rights of Persons with Disabilities (2006) and other conventions are based on the Article to request the States parties to strictly observe the principle of nondiscrimination and to provide necessary health care services in accordance with the health status of specific groups of people, such as women, children and persons with disabilities.¹⁵ Therefore, the Article is regarded as the core of the right to health.

 

Under this tendency, regional international treaties have made corresponding provisions on the right to health. For example, Article 11 of the European Social Charter (1961) stipulates the right to health protection.¹⁶ The Additional Protocol to the American Convention on Human Rights in the Field of Economic, Social and Cultural Rights (1999) provides for the right to health in Article 10, the right to a healthy environment in Article 11, and the right to food in article 12.¹⁷ Article 16 of the African Charter on Human and Peoples’ Rights (1986) provides for the right of individuals to the enjoyment of the highest attainable state of physical and mental health.¹⁸ With the formulation of the above-mentioned international law documents and conventions, a clear and complete concept of the right to health gradually took shape at the level of international law.

 

Driven by the welfare states and the economic and social rights after World War II, and under the influence of international human rights law, especially the norm of the right to health, more and more countries have chosen to incorporate the right to health into their constitutions. In line with a 2001 survey by Eleanor Kinney, an American scholar, 142 countries have ratified the International Covenant on Economic, Social and Cultural Rights, 83 countries have ratified regional conventions related to the right to health, and the number of countries that directly or indirectly stipulate the right to health in their constitutions total 109.¹⁹ In 2004, Kinney and Brian Clark made a further statistical analysis of constitutions of various countries and found that 67.5 percent of countries stipulated articles on the right to health in their constitutions, which can be roughly divided into five categories: aspiration, entitlement, duty, statement and referential. Among them, entitlement accounts for the highest proportion (38.7 percent), followed by duty (38.1 percent), statement (26.3 percent), aspiration (11.3 percent), and referential (4.6 percent).²⁰ The UN Human Rights Commission also released statistics in 2008, pointing out that the right to health or the right to healthcare is stipulated in the constitutions of at least 115 countries around the world. And at least six constitutions have established health-related responsibilities, such as the development of health services or the allocation of a special budget.²¹

 

The right to health flourished as human rights via international human rights law after World War II, not by historical accident, but for a series of deep-rooted reasons mainly including the following three aspects. First, the trend of internationalization of human rights is the historical background of the rise of the right to health. The atrocities committed by fascists during World War II showed that the model of human rights protection based on sovereign states was not secure.²² This made the postwar human rights movement separate from the traditional national legal system and formed the category of international human rights law.²³ As Lawrence Gostin, an American scholar, said, the rise of international human rights law directly pierced the veil of state sovereignty and raised the protection of human rights, including the right to health, to the level of international law. Human rights are no longer just a matter between individual citizens and countries, and the enjoyment of human rights does not depend on the gift of the state.²⁴

 

Second, the rise of the right to health is driven by both international order and the pursuit of legitimacy in domestic politics. From an international perspective, the post-war international law has been expanding into the field of human rights due to the reflection on human rights violations and the declaration of the legitimacy of the international order under the framework of the United Nations. From a domestic perspective, protecting the right to health of citizens is also the voice of most people. As for most national governments, for the purpose of catering to or meeting the needs of the public, as well as considering their own legitimacy, it has been a general trend of society to recognize and protect the right to health of citizens. Driven by the dual forces at home and abroad, the right to health has gone from international to domestic and become a human right stipulated by the laws of most countries.

 

Third, the progress of medical technology and the extension of the average life expectancy of human beings provide the medical premise for the rise of the right to health.²⁵ Before the 20th century at the dawn of modern medicine, survival was a pressing need in the face of the constant threat of death from deadly infectious diseases such as the plague, cholera and smallpox. Western European countries during the Industrial Revolution carried out a series of public health campaigns to control and eliminate infectious diseases.²⁶ Since the 20th century, major breakthroughs have been made in the field of medical technology. With malignant infectious diseases basically under effective control, the average life expectancy of mankind has been greatly improved and the spectrum of diseases has undergone major changes. The right to health has gradually been separated from the right to life and has become a social issue of great concern to the public and the government. In other words, the right to health, as a legal right and interest, is a product of the progress of medical technology and the increase of human life expectancy.

 

 

When the People’s Republic of China was founded in 1949, its medical and health system was very weak, with few doctors and medicines, and the average life expectancy was only 35 years.²⁷ In response to this extremely poor sanitation and health conditions, Article 48 of the Common Program of the Chinese People’s Political Consultative Conference stipulates that the need “To promote health and medicine, and highlight the protection of the health of mothers, infants and children”. It established the policy of giving priority to prevention in health, organized and promoted mass health campaigns, and launched the “Patriotic Health Campaign” in 1952. Article 93 of the Constitution of the People’s Republic of China promulgated and implemented in 1954 stipulates that: “Working people in the People’s Republic of China have the right to material assistance in old age and in case of illness or disability. To guarantee the enjoyment of this right, the state provides social insurance, social assistance and public health services and gradually expands these facilities.”

 

The Constitution of the People’s Republic of China in 1982 enriched the content of health protection. Paragraph 3 of Article 33 states: “The State respects and preserves human rights.” Article 21 states: “The State develops medical and health services, promotes modern medicine and traditional Chinese medicine, encourages and supports the setting up of various medical and health facilities by the rural economic collectives, state enterprises and institutions and neighborhood organizations, and promotes health and sanitation activities of a mass character, all for the protection of the people’s health. The State develops physical culture and promotes mass sports activities to improve the people’s physical fitness.” Paragraph 1 of Article 26 states: “The State protects and improves the environment in which people live and the ecological environment. It prevents and controls pollution and other public hazards.” Paragraph 3 of Article 36 states: “The State protects normal religious activities. No one may make use of religion to engage in activities that disrupt public order, impair the health of citizens or interfere with the educational system of the State.” Paragraph 1 of Article 45 states: “Citizens of the People’s Republic of China have the right to material assistance from the State and society when they are old, ill or disabled. The State develops social insurance, social relief and medical and health services that are required for citizens to enjoy this right.”²⁸

 

Despite these constitutional provisions, there is no “right to health” mentioned in the Constitution. However, if a systematic interpretation of China’s Constitution is made, it will be found that the above series of provisions to protect human rights and promote the development of health care have become the basis and normative connotation of the right to health in China’s Constitution: First, the health of citizens is inviolable (Paragraph 3 of Article 33, Paragraph 3 of Article 36). Second, Citizens have the right to medical care, material assistance and other services from the state and society when they are ill (Paragraph 3 of Article 33, Paragraph 1 of Article 45). Third, the state shall protect and promote the health of citizens by developing medical and health services, physical education and the protection of life and the ecological environment (Article 21, Paragraph 1 of Article 26).”²⁹ Therefore, it can be confidently said that although China’s Constitution does not explicitly use the words “right to health,” it does contain the content of the “right to health” throughout the full text of the Constitution and it has developed with the times.

 

As the strategy for “Healthy China” has put forward and the COVID-19 prevention and control work is advanced, especially as China has already fulfilled the first Centenary Goal of building a moderately prosperous society in all respects, China is striving to realize the second Centenary Goal of building a great modern socialist country in all respects, and the right to health has received unprecedented attention as a basic human right. The Law on Basic Medical and Health Care Promotion, adopted on December 28, 2010 and implemented on June 1, 2020, specifies in Article 4 on the basis of the Constitution: “The State and society respect and protect the right to health of citizens.” This is the logical and inevitable development of the right to health provisions of China’s Constitution.

 

It should be noted that both the General Principles of Civil Law and the Civil Code stipulate that citizens enjoy the right to health. However, the right to health stipulated in the Constitution and the Law on Basic Medical and Health Care Promotion far exceed the connotations and extension of the right to health in the Civil Law. The right to health stipulated in Civil Law generally refers to negative rights enjoyed by citizens, those which can be realized without the help of other people or organizations. That is to say, the right to health enjoyed by individuals is an existing legal right that cannot be infringed by others. Otherwise, those infringing on the right to health of others will be committing a tort in civil law and bear the corresponding civil liability. The right to health stipulated in Law on Basic Medical and Health Care Promotion, on the other hand, is mainly a positive right that can be realized only with the help of professional institutions and personnel such as medical institutions and medical staff.

 

 

COVID-19 is defined by the WHO as a global pandemic. It poses a huge threat to every country, as well as their capacities to protect human rights. Some developed countries that boast of being the guardians of human rights and are considered to have a sound human rights protection system have repeatedly failed the test of the pandemic. While in spite of the trials and tribulations, China has emerged to gradually resume work and production, and embrace an all-round recovery of its economic and social life, securing hard-won achievements. One of the most important reasons is that throughout the COVID-19 prevention and control, the core concepts of “making the people the central focus of development, serving people’s Health” and “respecting and protecting the right to health of citizens” stipulated in the Law on Basic Medical and Health Care Promotion has been thoroughly implemented with the policy of “giving priority to the development of people’s health.” From this perspective, China’s anti-pandemic practice provides new material for the expansion of the right to health theory.

 

 

In the face of the spread of the novel coronavirius, how the whole society, especially decision-makers, views the right to health is a crucial issue. The constitution of each country guarantees human rights, but what rights should be protected in the first place when a pandemic strikes? In some countries, the priority when the COVID-19 pandemic hit was to ensure that scheduled elections were not disrupted. Some countries have been prioritizing how to keep their economies fully operating. Some countries fear that the pandemic will overwhelm their health systems with patients, and they hesitate whether to treat the critically ill. Some countries are reluctant to devote more resources to prevention and even resort to the passive strategy of herd immunization. Since Western human rights theories have long advocated socalled negative human rights and denied the importance of positive human rights, and under the influence of pseudoscience some people in some Western countries have taken freedom of movement and assembly to be the most important human rights, putting these in opposition to the right to health and the right to life, since effective anti-pandemic measures cannot be fully implemented, and therefore the situation cannot be contained.

 

In contrast, China has “given top priority to the safety and health of the people,” “with firm courage and indomitability,” “launched the all-out people’s war against the pandemic” and “achieved major strategic achievements in the fight against the pandemic.”³⁰ It has not only put into practice the legal requirement of “the right to health in the strategic position of priority development,” but also proposed a new topic for the theoretical research of human rights: Does the human rights system, compared with the rights to property, freedom of travel, entertainment and other rights, have a strategic position of priority? As General Secretary Xi Jinping stressed life is only once and will not come again. We must and surely will do whatever it takes to protect people’s lives.³¹ Without life, there is no health, and life at its best depends on health. It can be said that health is the pursuit of life, and a life without health is a fragile life or a life without quality. For individuals, the enjoyment of other rights is impossible without health and may even result in loss of rights; for a nation, there is no well-off society in all respects without public health. After a better understanding of the fundamental status of the right to health and the right to life, when the two rights are seriously threatened, other rights can be temporarily put aside. Therefore, the two rights take priority in the system of rights, at least during a major public health crisis, while other rights such as the right to property are relegated to a secondary position. In this sense, the right to health can be said to be the first priority.

 

 

Due to the fundamental status, the right to health’s entry into other traditional legal fields will bring about the variation of the original legal relationship and have a significant impact on the rights stipulated in other department laws.

 

 

Medical service is often defined as the contractual relationship of medical service according to the provisions of contract law in civil law. On the whole, there is no problem, but if we consider the characteristics of medical service, i.e., the strong ethics and public welfare to save the life and heal the wounded, the scope of its service cannot be determined only on the basis of the equivalence principle of the contract law. No matter what the registration fee is, the scope and quality of care a doctor can provide to a patient cannot be defined solely by the value of the registration fee. This is different from the basic principles of equal compensation, voluntariness and equal status in contractual relations. For the medical emergency relief, basic medical services and public health services with the significant public welfare, the basic principle is not equal compensation. If the medical service is guided by the principle of equal compensation, it will only lead to the pursuit of market profit by the doctors and medical institutions, and then affect the benign interaction between doctors and patients.

 

For another example, medical service has its unique nature of professionalism, invasiveness, exploration and risk. Medicine and pharmacy are not perfect, and medical services still depend on the joint efforts of both doctors and patients to a certain extent, while each patient has its individual differences. All of these make the results of medical services uncertain. Without considering the particularity of medical services, simply applying the provisions of tort liability law will lead to the wariness and distrust of both doctors and patients, and the chaos of doctors choosing harmless and ineffective “conservative treatment” or “excessive treatment” for self-protection.

 

In addition, parties to medical services are not purely equal parties. Not only does the medical service provider have professional medical knowledge and technology, resulting in complete information disparity between the two sides, but to a certain extent, citizens have the right to access basic medical services and public health services, and the state and society have the responsibility to provide these services. Medical service is a public product in a certain sense, and the equalization of public product distribution is an important theoretical and practical problem facing China’s medical and health system reform. Although the market operation of medical services cannot be denied, medical services cannot simply be defined by commercial or civil contracts in the market.³²

 

 

In addition to the influence on the above civil law norms, the influence of the right to health on criminal law is also obvious. For the illegal acts that endanger the right to health, the active intervention of criminal law has been a trend in the field of criminal law in recent years. For example, in the field of drug and medical device research and development, clinical trial data falsification used to be a persistent disease in the field of drug research and development. The clinical data falsification often does not directly cause serious consequences such as injury and death, so its social harm is questioned. However, the absence of immediate harmful consequences does not mean that it does not have potential social harm. In fact, the potential harm to people’s health is even greater if the approved drugs and medical devices are defective. In response to this phenomenon, the Supreme People’s Court and the Supreme People’s Procuratorate jointly issued the Interpretation on the Several Issues regarding the Application of Law in the Handling of Criminal Cases of False Application Materials for the Registration of Drugs and Medical Devices in 2017, punishing illegal and criminal acts of data falsification in the registration process of drugs and medical devices according to law.

 

Similarly, in December 2020, the Supreme People’s Court issued the Interpretation (I) on Several Issues Concerning the Application of Law in the Trial of Civil Dispute Cases involving Food Safety, which provides a legal basis for the protection of health and life and the use of criminal law to punish acts endangering food safety.

 

For another example, in order to effectively promote various anti-pandemic measures, the Supreme People’s Court, The Supreme People’s Procuratorate, the Ministry of Public Security and the Ministry of Justice jointly formulated the Opinions on Punishing Criminal and Illegal Activities that Hinder the Prevention and Control of Novel Coronavirus Pneumonia in February 2020. The provisions on criminal penalties for violations of anti-pandemic measures have been detailed. Once the norms of criminal law involve the right to health, the interpretation and application tend to be stricter, which also reflects the crucial importance of the right to health from another aspect.

 

 

The pandemic has highlighted that the right to health and the right to life are superior to the right to property and the right to patent. When the pandemic strikes, in order to protect people’s right to life and the right to health, people can suspend production temporarily or in stages, close markets, cancel the management rights of large public places during the pandemic and even expropriate and requisition the property of other organizations and individuals according to law. Compared to the right to property, the right to health is given priority to be protected.

 

This conflict of rights is exactly two eternal problems in the field of public health: the first is how to coordinate and regulate the relationship between the right to health and individual rights and interests, such as the right to property. Every public health institution and decision-maker must weigh and make trade-offs between these rights and interests. The second is to decide whether to adopt mandatory measures, market-based measures or voluntary measures.³³ This is the most vexing and unavoidable legal conundrum in public health. To sum up, the best response to these two problems is to put people’s health and life at the center of pandemic prevention and control in a scientific and orderly way in accordance with the law.

 

In the field of patent law, patent rights should be fully protected. However, once the right to health is involved in medicines, medical devices and diagnosis and treatment methods, its inviolability is limited to some extent. Article 55 of the Patent Law of the People’s Republic of China specifically stipulates that “for the purpose of public health, the patent administration department under The State Council may grant a compulsory license to manufacture and export the patented drugs to countries or regions that meet the provisions of relevant international treaties to which the People’s Republic of China is a party.” In addition to compulsory licensing, the Patent Law also provides “Bolar exception”³⁴ to promote the rapid development of drugs and medical devices, which is also conducive to protecting the right to health.

 

 

In conclusion, legal practice, especially the legal practice of pandemic prevention and control, has proposed new topics and challenges for the research on the right to health. The special nature of the right to health and its closely related right to life further deepens the connotation of theoretical research on human rights, opens up new research space, and makes it impossible for people to ignore the primary position of the right to health in the human rights system. In other words, the right to health occupies a superior position in the sequence of numerous human rights and exerts a significant influence on the normative system of other department laws.

 

(Translated by XU Chao)

 

* WANG Chenguang ( 王晨光 ), Professor at the Vanke School of Public Health, Tsinghua University.

 

1. Stephen P. Marks, “The Past and Future of Separation of Human Rights into Categories”, 24 Maryland Journal of International Law 1 (2009): 215-224.

 

2. John Tobin, The Right to Health in International Law (Oxford: Oxford University Press, 2012), 4; Philip Barlow, “Health Care Is Not a Human Right,” British Medical Journal 319 (1999): 321. 

 

3. Observations by the United States of America on “The Right to Health, Fact Sheet No. 31” (22 December 2008).

 

4. Philip Alston and Ryan Goodman, International Human Rights — The Successor to International Human Rights in Context: Law, Politics and Morals, 2nd edition (Oxford: Oxford University Press, 2013), 181-185.

 

5. WHO, Determinants of Health, Q&A (3 February 2017).

 

6. The Ottawa Charter for Health Promotion (1986).

 

7. Steven A. Schroeder, “We Can Do Better — Improving the Health of the American People, The New England Journal of Medicine” (September 20, 2007).

 

8. Ibid.
 

9. Xi Jinping, “Health is the Most Important Indicator of a Happy Life,” People’s Daily, March 25, 2021.

 

10. John Tobin, The Right to Health in International Law, 4; Philip Barlow, “Health Care Is Not a Human Right,”321. 

 

11. Ren Donglai et al., The Course of American Constitutionalism: 25 Major Judicial Cases Affecting the United States, 2nd edition (Beijing: China Legal Publishing House, 2005), 147-164.

 

12. Eleanor D. Kinney, “The International Human Right to Health: What Does this Mean for Our Nation and World”, 34 Indiana Law Review 4 (2001): 1457 and 1458.

 

13. Shi Siming, a member of the Chinese delegation to the United Nations at that time, proposed to establish the World Health Organization together with Brazilian delegation member Suza and Norwegian delegation member Ivan, which was adopted by the United Nations General Assembly. See “The Birth of WHO”, 

Bulletin of the World Health Organization (May 1989).

 

14. Although the legal validity of the Universal Declaration of Human Rights remains controversial, it has contributed to the creation of many values and norms that constitute a universal set of norms and have been recognized by various political societies. See Henri van Marcerven and Ger van de Tang, translated by Chen Yunsheng, A Comparative Study of Written Constitutions (Beijing: Huaxia Press, 1987), 246-247.

 

15. Eleanor D. Kinney, “Recognition of the International Human Right to Health and Health Care in the United States,” Rutgers Law Review 60 (2007-2008): 335 and 343.

 

16. Council of European, European Social Charter, 18 October 1961, ETS No.035 (Entry into Force, February 26, 1965).

 

17. Organization of American States (OAS), Additional Protocol to the American Convention on Human Rights in the Area of Economic, Social and Cultural Rights (“Protocol of San Salvador”), 16 November 1999, A-52.

 

18. African Commission on Human and Peoples’ Rights (ACHPR), African Charter on Human and Peoples’Rights.

 

19. Eleanor D. Kinney, “The International Human Right to Health”, 1465.

 

20. Eleanor D. Kinney and Brian A. Clark, “Provisions for Health and Health Care in the Constitutions of the Countries of the World,” 37 Cornell International Law Journal 2 (2004): 285 and 298.

 

21. Office of the United Nations High Commissioner for Human Rights, World Health Organization: The Right to Health, United Nations publication (General Introduction No. 31), page 11.

 

22. Costas Duzner, The End of Human Rights, translated by Guo Chunfa (Nanjing: Jiangsu People’s Publishing House, 2002), 126.

 

23. Louis Henkin, Age of Power, translated by Xin Chunying et al. (Beijing: World Affairs Press, 1997), 17.

 

24. Lawrence O. Gostin, “The AIDS Pandemic Complacency and Unfulfilled Expectations,” in Studies in Social Medicine (Chapel Hill: University of North Carolina Press, 2004), 61 and 62-63.

 

25. Roger A. Ritvo et al., “Health Care as a Human Right”, Case Western Reserve Journal of International Law 10 (1978): 323 and 339-343. 

 

26. George Rosen, A History of Public Health: Revised and Expanded Edition (Baltimore: Johns Hopkins University Press, 2015), 68.

 

27. State Council Information Office, Development of Health Undertakings and Progress of Human Rights in China, on the website of The State Council Information Office.

 

28. Jiao Hongchang, “On the Right to Health as a Basic Right”, Journal of China University of Political Science and Law 1 (2010): 18.

 

29. Ibid., 19.

 

30. Xi Jinping, Selected Essays of Xi Jinping on Coordinating Epidemic Prevention and Control and Economic and Social Development (Beijing: Central Literature Publishing House, 2020), 3.

 

31. Ibid., 9.

 

32. Wang Chenguang, “The Development of the Times, Interdisciplinary and Legal Field Expansion — A Case Study of Health Law,” in Applied Law Review 1 (2019) (Beijing: Social Sciences Academic Press, 2020): 3-19.

 

33. Lawrence O. Gostin, Public Health Law, 3rd edition (Berkeley: University of California Press, 2016), xxi.

 

34. “Bolar exception” refers to the exception provision in the patent law that the importing, manufacturing and use of patented drugs for testing without the consent of the patentee before the expiration of the drug patent, in order to obtain the data and other information required by the drug administration department, is regarded as not infringing the patent right. For example, as stipulated in Article 124 of Guide to Determination of Patent Infringement (2017) of the Beijing Municipal Higher People’s Court, “Any person who manufactures, uses or imports a patented drug or a patented medical device for the purpose of providing information needed for administrative examination and approval, or who manufactures or imports a patented drug or a patented medical device specifically for the purpose thereof, shall not be deemed to have infringed the patent right.”