Chicago Journal of International Law   |  July 25, 2016

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This article examines how various supra-national tribunals have approached adjudication of health-related rights, and makes proposals with respect to some special considerations posed by health-related cases that the United Nations Committee on Economic, Social and Cultural Rights and other supra-national bodies will invariably face. After briefly setting out the contours of the right to health under international law, we stress the importance of an approach to adjudication that acknowledges underlying determinants, but also that defines the obligations of the health sector, explicitly acknowledging the interdependence and indivisibility of health with human rights. Second, reviewing some lessons from other supra-national tribunals, we address the question of when a supra-national tribunal should order interim measures in a health-rights related case. Third, we explore the uniquely important role of technical evidence in health rights cases, which are highly reliant on clinical and epidemiological determinations in establishing what reasonableness requires of the state. Fourth, we assert that achieving health equity goes beyond accounting for socio-economic marginalization or discrimination faced by certain populations, to examining priorities in relation to the “worst off” in terms of the seriousness of conditions. Finally, we argue both for the appropriateness of “dialogical” remedies in many health rights cases, and the need for developing innovative forms of monitoring and supervision of such remedies by supra-national tribunals.

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