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The ‘Rights-Based Approach’ to Development: A Critical Reflection

Since 1990s, there has been an increasing realization in the field of development that the traditional need-based approach to development is not enough to meet the need of this field. This field, both in theory and practice, requires a paradigm shift from the so-called need-based approach to the rights-based approach. The rights-based approach to development is meant as catalyst to enable individuals (right-holders) to demand and exercise rights and also the state and non-state actors (duty-bearers) to deliver those rights (Cornwall & Nyamu-Musembi, 2004). This capacity development notion of the approach empowers individuals to demand justice as a right rather than a charity (Sen, 2005). However, right-based approaches are practically facing challenges to be pro-poor. Recently, this issue has been addressed by many development scholars. This essay argues that rights-based approaches are not automatically pro-poor, rather they require consciously and systematically paying attention to the marginalized groups, processes and outcomes, and the integration of human rights principles into development initiatives. For these issues, the essay first highlights the welcomed turn to the rights-based approach. Then it discusses how rights-based approaches are not automatically pro-poor while offering suggestions to make it pro-poor. Finally, it presents a case study from Latin America to strengthen the argument that rights-based approaches are not pro-poor by-default.

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Article Contents

1. introduction, 2. context: human rights-based approaches to development, 3. evolving normative approaches to human rights-based approaches to health, 4. systematic literature review, 5. discussion, 6. conclusion, acknowledgements, conflict of interest, funding statement.

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Human Rights-based Approaches and the Right to Health: A Systematic Literature Review

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David Patterson, Human Rights-based Approaches and the Right to Health: A Systematic Literature Review, Journal of Human Rights Practice , Volume 16, Issue 2, July 2024, Pages 603–623, https://doi.org/10.1093/jhuman/huad063

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The term ‘human rights-based approach’ is common in rights and international development literature. Yet there is no single, universally agreed definition of a human rights-based approach, let alone its application to the right to health. This article uses a PRISMA-informed systematic literature review to address the question, ‘What is the current status of the human rights-based approach to health in international law?’ Previous reviews have described how international organizations and development donors have tackled human rights-based approaches to development generally and discussed prominent works on human rights-based approaches to health. However, this is the first review to sample the peer-reviewed literature systematically. The study revealed that authors use the terms ‘human rights’, ‘human rights-based approach’ and ‘right to health’ to import a raft of legal implications, or none at all. Similarly, readers may assign legal meanings to these terms, or none at all. Confusion arises because although these terms often have different meanings for authors and readers from different disciplines, this is not commonly acknowledged, and authors rarely clarify their perspectives. The author concludes that scholars should seek co-authors with human rights law or public health qualifications, as relevant. Most academic institutions research and teach health and law separately; interdisciplinary centres of excellence in health, law and human rights offer an opportunity to overcome these historical obstacles to interdisciplinary dialogue and understanding. The study and its conclusions will be of interest to legal researchers, human rights advocates, public health scholars, and advocates from other disciplines.

This article addresses the question, ‘What is the current status of the human rights-based approach to health in international law?’ The primary audience is human rights scholars and advocates, particularly those engaged in addressing global health challenges. The issues raised will also be of interest to public health scholars and advocates from other disciplines.

The article reviews how the concept of the human rights-based approach to health has been applied in peer-reviewed, published literature in the period 2000–2021. Previous reviews have described how international organizations and development donors have tackled human rights-based approaches to development generally ( Piron and O’Neil 2016 ) and discussed prominent works on human rights-based approaches to health ( Gruskin et al. 2010 ). However, this is the first review to apply the PRISMA (preferred reporting items for systematic reviews and meta-analyses) approach to answer the research question. Consequently, the research revealed many articles by authors writing from a range of disciplinary perspectives other than law.

There is no single, universally agreed definition of a human rights-based approach, let alone its application to the right to health. Authors use the terms ‘human rights’, ‘human rights-based approach’ and ‘right to health’ to import a raft of legal implications, or none at all. Similarly, readers may assign legal meanings to these terms, or none at all. Authors and readers often approach the issues from different disciplinary perspectives. Confusion arises because although these terms often have different meanings for authors and readers from different disciplines, this is not commonly acknowledged, and authors rarely clarify their perspectives. Further, some articles misrepresent the legal foundations of the human rights-based approach to health.

First, this article introduces these issues in the context of human rights-based approaches to development, where the concept of human rights-based approaches to health originated. The article then examines the development of normative statements of human rights-based approaches to health. This analysis is then expanded through a systematic literature review exploring how authors have discussed human rights-based approaches to health since 2000. The methodology, results and limitations of the study are then considered. The article concludes that there is a need for greater awareness of differing disciplinary perspectives when discussing human rights-based approaches to health, and hence the need for greater dialogue between disciplines.

Since the creation of the United Nations in 1945 and the adoption of the Universal Declaration of Human Rights (UDHR) in 1948, the international human rights framework has been extended and consolidated at both UN and regional levels through treaties and their interpretation by UN and regional treaty bodies. In 1986, the UN General Assembly adopted the Declaration on the Right to Development ( United Nations 1986 ). A broad enquiry into human rights-based approaches to development followed.

After the Cold War, increasingly divergent and sometimes inconsistent approaches to development cooperation emerged, including within the UN system. In 1997, UN Secretary-General Kofi Annan asked UN agencies and programmes to mainstream human rights throughout the UN system ( Robinson 2005 : 29). In the early 2000s ambiguity about human rights among development agencies persisted, particularly in the application of human rights-based approaches. Russell (2010) canvassed the views of the staff of international development organizations on the rights-based approaches to the right to water, essential to the right to health. She found that ‘rights-based approaches were associated with vague notions of participation, nondiscrimination, accountability, capacity building, empowerment, and/or access to information. Not uncommonly, any combination and permutation of these principles were seen to constitute a rights-based approach’ ( Russell 2010 : 14).

In 2003, an expert meeting of the United Nations Development Group (UNDG) proposed the following definition of ‘human rights-based approaches to development cooperation’ (UN Common Understanding) ( UN Sustainable Development Group undated-a : 1).

All programmes of development cooperation, policies and technical assistance should further the realization of human rights as laid down in the Universal Declaration of Human Rights and other international human rights instruments.

Human rights standards contained in, and principles derived from, the Universal Declaration of Human Rights and other international human rights instruments guide all development cooperation and programming in all sectors and in all phases of the programming process.

Development cooperation contributes to the development of the capacities of ‘duty-bearers’ to meet their obligations and of ‘rights-holders’ to claim their rights.

When the UN Common Understanding is quoted, often only the above three points are cited. However, the statement also proposes and elucidates the following ‘pillars’ of the rights-based approach: universality and inalienability, indivisibility, interdependence and interrelatedness, equality and non-discrimination, participation and inclusion, and accountability and the rule of law. The UN Common Understanding also identifies ‘good programming practices’ and ‘other elements of good programming practices that are also essential under a human rights-based approach’ ( UN Sustainable Development Group undated-a : 3).

The UN Common Understanding has been cited widely by UN agencies and programmes, including the UN Office of the High Commissioner for Human Rights ( UN OHCHR 2006 ), the United Nations Populations Fund ( UNFPA undated ), and reiterated by the UN Sustainable Development Group (formerly the UNDG) ( United Nations 2020 ). However, the UN Common Understanding has not been endorsed by an intergovernmental body, such as the UN Human Rights Council (UNHRC), the UN Economic and Social Council (ECOSOC) or the UN General Assembly.

In 2016, the OECD and the World Bank published an extensive report on donor approaches, experiences, and challenges in integrating human rights into development programmes ( Piron and O’Neil 2016 ). The report cites the UN Common Understanding and notes the challenges of implementing and evaluating human rights-based approaches. The UN Sustainable Development Group published updated guidance on the human rights-based approach to development in 2019.

The Human Rights-Based Approach to Development [HRBA] is a conceptual framework for the process of sustainable development that is normatively based on international human rights standards and principles and operationally directed to promoting and protecting human rights. Under the HRBA, the plans, policies and processes of development are anchored in a system of rights and corresponding obligations established by international law, including all civil, cultural, economic, political and social rights, and the right to development. HRBA requires human rights principles (equality and non-discrimination, participation, accountability) to guide UN development cooperation, and focus on capacity development of both ‘duty-bearers’ to meet their obligations and ‘rights-holders’ to claim their rights ( United Nations 2019 : 13).

The UN Office of the High Commissioner for Human Rights (OHCHR) has also issued guidance on human rights-based approaches to various development challenges, for example on human rights and climate change ( UN OHCHR 2021 : 42–43). A 2022 study of human rights-based approaches in development programmes highlighted their potential for enhancing development practices ( Noh 2022 : 898).

The UDHR states (Article 25) ‘Everyone has the right to a standard of living adequate for the health and well-being of himself and his family’. The right to health was first codified in 1966 in Article 12 of the UN International Covenant on Economic, Social and Cultural Rights (ICESCR), and later in multiple other UN and regional human rights treaties.

In the 1980s a leading proponent of the link between health and human rights was Dr Jonathan Mann, the founder and then Director of the WHO Global Programme on AIDS ( Mann et al. 1994 ). In 1988, the World Health Assembly adopted resolution WHA 41.24 entitled ‘AIDS: Avoidance of discrimination in relation to HIV-infected people and people with AIDS’. This was the first time that the World Health Assembly had drawn attention to the importance of human rights in the context of a health issue.

In 1996, the OHCHR and the newly created Joint United Nations Programme on HIV/AIDS (UNAIDS) held an expert consultation to draft guidelines on the application of UN human rights treaties to the HIV pandemic. The report of the consultation uses the terms ‘rights-based approach’, ‘human rights approach’, and ‘rights-based response’ interchangeably. The report notes that, ‘...a rights-based approach to HIV/AIDS is grounded in concepts of human dignity and equality which can be found in all cultures and traditions … The key human rights principles which are essential to effective State responses to HIV/AIDS are to be found in existing international instruments.’( UNAIDS and OHCHR 2006 : 82).

In 1997 the (then) United Nations Commission on Human Rights (UNCHR) welcomed the report of the consultation on HIV/AIDS and human rights (E/CN.4/1997/33) in resolution 1997/33. The resolution included an annex with 12 guidelines on the application of UN human rights treaties to the HIV pandemic. Although not binding on Member States, the 1997 and subsequent UNCHR (and later, UN Human Rights Council (UNHRC)) resolutions give the guidelines considerable weight and authority. They were published by UNAIDS and OHCHR as the ‘International Guidelines on HIV/AIDS and Human Rights’ in 1998, and later updated and reissued ( UNAIDS and OHCHR 2006 ).

In 2000 the UN Committee on Economic, Social and Cultural Rights (CESCR) issued General Comment 14 on ICESCR Article 12, with a focus on the right to health. The CESCR noted that, ‘(t)he adoption of a human rights-based approach by United Nations specialized agencies, programmes and bodies will greatly facilitate implementation of the right to health’ ( UN Committee on Economic, Social and Cultural Rights 2000 : s64).

In 2002 the World Health Organization published guidance on human rights and health which included a definition of a rights-based approach to health ( World Health Organization 2002 ). The WHO guidance notes the obligations of international cooperation contained in the UN Charter (Articles 55 and 56), the UN Declaration on the Right to Development ( United Nations 1986 ), and the ICESCR (Article 2), yet omits the critical concepts of rights-holders and duty-bearers. As with the UN Common Understanding, the WHO guidance has not been endorsed by the World Health Assembly, the UNHRC, nor any other intergovernmental body.

In 2006, the (then) Special Rapporteur on the right of everyone to the enjoyment of the highest attainable standard of physical and mental health, Paul Hunt, described a human rights-based approach approvingly as follows.

In recent years, it has become clear that a human rights-based approach to particular issues, such as development, poverty reduction and trade, brings certain valuable perspectives that otherwise tend to be neglected. Very briefly, in general terms a human rights-based approach requires that special attention be given to disadvantaged individuals and communities; it requires the active and informed participation of individuals and communities in policy decisions that affect them; and it requires effective, transparent and accessible monitoring and accountability mechanisms. The combined effect of these—and other features of a human rights-based approach—is to empower disadvantaged individuals and communities ( UN Commission on Human Rights 2006 : s25).

In 2008, OHCHR and WHO issued a joint fact sheet which cited the UN Common Understanding, CESCR General Comment 14, and noted the ‘key elements of a HRBA to health’ ( UN OHCHR and WHO 2008 ). Nonetheless, over time there was a loss of critical content in various formulations of the human rights-based approaches to health. In 2016, Hunt cautioned that the shift in focus from State obligations to protect, respect and fulfil the right to health set out in international treaties to the concept of a ‘human rights-based approach to health’ may also lead to overlooking essential elements of the right to health. These essential elements include the full nature of the concept of progressive realization and responsibilities of international assistance and cooperation ( Hunt 2016 : 113).

The term ‘human rights-based approach’ may indicate that the approach described is grounded in obligations arising from national or international law. It may also describe the activities through which these obligations may be realized. In 2006, Gruskin distinguished three broad categories of activities under the term ‘rights-based approaches to health’: legal, advocacy, and public health practice. Gruskin suggested that the legal category involves legal analysis and action at national and international levels; the advocacy category involves using the language of rights to mobilize public opinion and advocate for action by governments and other institutions of power; and the public health practice category involves applying a human rights framework to the design, implementation and monitoring of programmatic initiatives ( Gruskin 2006 : 7–8).

The human rights approach has also been discussed extensively in the context of preventable maternal mortality and morbidity and under-five child mortality and morbidity. In 2010, an OHCHR report to the UNHRC described the ‘human rights approach’ to maternal mortality and morbidity as follows:

The practical implications of the human rights values of dignity and nondiscrimination result in a set of working principles that form the basis of a human rights approach. The treaty bodies and United Nations experts have clarified the importance of seven such principles: accountability, participation, transparency, empowerment, sustainability, international cooperation and non-discrimination ( UN OHCHR 2010 : s32).

The report provides an extensive description of each of the seven principles as they apply to maternal mortality and morbidity. It was welcomed by the UNHRC (A/UNHRC/RES/15/17) and thus carries the weight and authority of Member States’ endorsement.

In 2012, UNHRC also welcomed an OHCHR report on technical guidance on the application of a human rights-based approach to the reduction of preventable maternal mortality and morbidity (A/UNHRC/RES/21/6). The report was issued as OHCHR Technical Guidance, and notes in the General Principles section that,

A human rights-based approach identifies rights-holders and their entitlements and corresponding duty-bearers and their obligations, and promotes strengthening the capacities of both rights-holders to make their claims and duty-bearers to meet their obligations. These rights and obligations are provided for under international human rights law ( UN OHCHR undated-a : 2).

Notably, the guidance also refers to the concepts of ‘progressive realization’, ‘international assistance and cooperation’ and to ‘availability, accessibility, acceptability and quality’ with regard to health facilities, goods and services ( UN OHCHR undated-a : 4). The CESCR has also provided general guidance on international technical assistance measures in General Comment 2 ( UN Committee on Economic, Social and Cultural Rights 1990a ) and the progressive realization of economic, social and cultural rights in General Comment 3 ( UN Committee on Economic Social and Cultural Rights 1990b ). These concepts are further explored in relation to the right to health in General Comment 14 ( UN Committee on Economic Social and Cultural Rights 2000 ). Following Hunt’s 2006 report, subsequent UN Special Rapporteurs on the right to health have also issued reports which address aspects of the human rights-based approach to health ( UN OHCHR undated-b ).

Although not specifically framed as such, the strong and consistent endorsement for the human rights-based approach to maternal morbidity and mortality provided by the UNHRC also provides guidance with broad application on the content of the human rights-based approach to health ( Yamin 2023 : 168–75).

4.1 Methodology

Human rights legal research has been criticized for lacking attention to methodology ( Coomans et al. 2010 ). Following the typology for interdisciplinary legal research proposed by Taekema and van der Burg, this article is written from a legal doctrinal perspective, grounded in the body of international human rights law and its interpretation by recognized authorities, with insights gained heuristically from public health and other disciplines ( Taekema and van der Burg 2015 : 41).

The methodology for this review is based on the PRISMA (preferred reporting items for systematic reviews and meta-analyses) approach ( Moher et al. 2009 ) and adapted to reflect the field of study (international law rather than biomedical science). The PRISMA approach adopts the definition of a ‘systematic review’ proposed by the Cochrane Collaboration: ‘Systematic reviews seek to collate evidence that fits pre-specified eligibility criteria in order to answer a specific research question. They aim to minimize bias by using explicit, systematic methods documented in advance with a protocol’ ( Cochrane 2021 ). This study thus differs from the literature cited above in that the systematic review identified many articles by authors with non-legal perspectives. The methodology also allowed a limited quantitative assessment of the literature.

4.2 Protocol

The research canvassed all English-language, peer-reviewed articles published between 2000 and 2021 available in full text online through the WorldCat library catalogues. The research identified articles containing the terms [‘rights-based approach’ OR ‘rights based approach’] AND [‘right to health’] in the title, abstract, body of the article, and citations. The search term ‘right to health’ was used instead of ‘health’ because a test run with the latter term identified many articles which did not specifically address the right to health.

The records were then screened for duplicates. Non-substantive items (for example conference abstracts, or items where the search terms only appeared in the references) were discarded. One article was retained because although it only contained the term ‘right to health’ in the references, it was judged relevant as it examines extensively the reluctance by both funders and beneficiaries to adopt rights-based approaches to adequate, clean water (essential to good health) ( Russell 2010 ). Sixty articles were identified for textual analysis (hereinafter ‘the review set’), as listed in Table 1 . Each article was then reviewed and scored according to the questions in Table 2 . If the answer was positive, further textual analysis followed. The quantitative data were recorded in MS Excel. Text with discussion containing the search terms was recorded in MS Word. The search questions, initial quantitative results, and articles in PDF format were uploaded to University of London (UK) EPPI-Reviewer Web (Beta) software. This software offers automated full text searches of PDF files and opportunities for quantitative and qualitative analyses of data sets. The search questions were then run again through EPPI-Reviewer, and discrepancies with the manual search results were cross-checked and corrected.

Articles identified through the systematic literature review—‘the review set’

Question and number (#)/percentage (%) of positive responses (n=60)

4.3 Study limitations

It was not possible to confirm the legal qualifications of the authors. Biographical data for each author were reviewed online, where available, to ascertain whether the author had a stated academic qualification in law or a legal academic affiliation (that is, was associated with a faculty of law or legal academic research institution).

The research only canvassed English language, peer-reviewed articles available in full text online from WorldCat.org. Other databases may contain articles which also meet the search criteria, however the 60 articles identified through WorldCat were judged sufficient to address the research question. Following the guidance for systematic literature reviews in law proposed by Snel and de Moraes (2018) , the review protocol was not independently verified, nor were the articles double scored by independent reviewers ( Snel and Moraes 2018 ).

4.4 Results

The 60 articles identified through the systematic literature review are noted in Table 1 . They are listed chronologically by year and then alphabetically by first author.

The positive responses for each question and the percentage of positive responses in the review set are noted in Table 2 .

5.1 The incorporation problem

Legal research frequently engages with other disciplines and, if the audience is largely legal, concerns about differing disciplinary perspectives are usually not raised. However, if the aim is interdisciplinary dialogue, real difficulties may be anticipated ( Roux 2015 : 55). Discussion of the right to health necessitates engagement with concepts such as ‘health’, ‘public health’, and ‘healthcare’, which have been extensively explored and defined by health experts and authorities. For example, the Preamble of the Constitution of the World Health Organization states, ‘Health is a state of complete physical, mental and social well-being and not merely the absence of disease or infirmity’ ( World Health Organization 1946 ). The WHO Constitution also frames ‘the enjoyment of the highest attainable standard of health’ as a fundamental right of every human being. Notably, this affirmation of the right to health occurred two decades before the right was concretized in the ICESCR.

It can be well understood that for many health scholars the right to health remains primarily an ethical concept. In 2007, these challenges were perceptively addressed by Haigh and Haigh (2007) from the perspective of the public health practitioner. They note that while ‘the academic study of rights has traditionally been dominated by lawyers, it is an interdisciplinary concept … [whereby] a more complete understanding requires awareness of concepts and views associated with an array of other disciplines, including politics, economics, social policy, education, sociology, and anthropology’ ( Haigh and Haigh 2007 ). This expansive understanding may also enrich our understanding of rights from the legal perspective, while underscoring the importance of defining our terms.

5.2 How is the term ‘human rights-based approach’ defined and used?

Almost two-thirds of the articles (63 per cent) offer a definition or explanation of the rights-based approach, including by citing other articles where rights-based approaches are discussed. Surprisingly, only 12 per cent of the articles refer to the UN Common Understanding. Nonetheless, over three-quarters of the articles (78 per cent) refer to some of the elements of the rights-based approach described in the UN Common Understanding and other sources, such as non-discrimination, participation, accountability, transparency, ‘rights-holders and duty-bearers’, and by the CESCR, such as the AAAQ framework (noted below).

Over half of the articles (53 per cent) use rights-related terminology other than, or in addition to, ‘rights-based approach’. The most common term is ‘human rights approach’, which appears in 42 per cent of the articles. Other terms used include ‘rights-based analysis’, ‘rights-based frameworks’, ‘human rights law-based framework’, and ‘human rights perspective’.

5.3 Relevance of author legal qualifications

Over two-fifths of the articles (43 per cent) had no author with a legal qualification or legal academic affiliation. This is heartening as it indicates interest outside the legal domain in the contribution of a human rights-based approach to health. However, more than 30 per cent of these articles contained obvious legal errors or omitted relevant legal frameworks or guidance. Two of the articles with a legally qualified author also omitted relevant legal frameworks or guidance (noted further below). Puzzlingly, five of the articles included the term ‘rights-based approach’ in the title or abstract but did not discuss or even mention the term in the body of the text.

It is worth exploring these errors and omissions to better understand these gaps in legal knowledge and their implications. Many articles revealed a weak understanding of the human rights legal framework at national, regional and UN levels. For example, one article simply refers the reader to the Stanford Encyclopedia of Philosophy for information on human rights ( Dresler et al. 2012 ). Another cites WHO guidance that, ‘Understanding health as a human right creates a legal obligation on states’ ( World Health Organization 2017 ), yet only discusses ethical sources of obligation, without reference to obligations in international law:

WHO takes a rights-based approach to health, with a view toward the elimination of health disparities. This approach emphasizes the principles of nondiscrimination, availability, accessibility, acceptability, quality, accountability, and universality [citation omitted]. The rights-based approach is rooted in ethics, which involves understanding, defending, and recommending concepts and standards of right and wrong conduct. This conduct is usually described with reference to what humans should do to benefit society, that is, to do no harm and promote fairness and equality through a rights-based lens ( Sinharoy and Fanzo 2019 : 240).

Two articles incorrectly refer to the Universal Declaration of Human Rights (UDHR) as a ‘treaty’ ( Burkholder et al. 2019 ; van der Eijk et al. 2017 ). Declarations of the UN General Assembly are adopted as resolutions, not treaties, and are not legally binding. However, they carry considerable moral force and serve as a clear indication of the commitments of the international community. For non-lawyers this may seem an unimportant distinction. Yet it is the equivalent in medical terms of confusing a bacterium and a virus—a fundamental error which calls into question the author’s knowledge of the field about which they are writing. The distinction is important: for example, treaties may lead to legal recourse in States which have incorporated them into domestic law, whereas resolutions do not.

One article cites the CESCR General Comment 14 and refers to the ‘AAAAQ’ framework when discussing the elements of availability, accessibility, acceptability, and affordability ( Gianella et al. 2019 : 2, 10, 12). Yet the CESCR refers to ‘AAAQ’ because affordability is regarded as a component of accessibility. One article inaccurately refers to both the legal status of instruments and their titles when stating that, ‘Tanzania has ratified some legal treaties such as the Economic Covenant ; the Women Convention and the universal [sic] Declaration of Human Rights which emphasizes on [sic] the right to health as a fundamental human right’ ( John et al. 2018 ). Although this article addresses maternal health care, the authors make no mention of the extensive guidance from the UNHRC and the OHCHR noted above, nor the relevant treaties of the African Union.

Several articles demonstrate a limited understanding of the ICESCR and its application to health promotion and disease prevention. ICESCR Article 12 describes States’ obligations to address ‘the improvement of all aspects of environmental and industrial hygiene’ (Article 12(2)(b)) and ‘the prevention, treatment and control of epidemic, endemic, occupational and other diseases’ (Article 12(2)(d)). Yet D’Ambruoso et al. (2008) note in their abstract,

The rights-based approach could identify how and where to improve services. However, there are fundamental and inherent conflicts between the public health tradition (collective and preventative) and the right to health (individualistic and curative). As a result, and in practice, the right to health is likely to be ineffective for public health planning from a human rights perspective ( D’Ambruoso et al. 2008 : 1).

The authors discuss a review by Hogerzeil et al. (2006) on the use of litigation to oblige governments to implement their constitutional and human rights treaty obligations to provide access to essential medicines. D’Ambruoso et al. (2008) observe

'...a fundamental discordance in the human rights and public health traditions … Human rights are concerned with the protection and progressive realisation of the rights of the individual, whereas public health is concerned with the collective provision of health services for societies … The right to health is rooted in the medical model of health and healthcare which is clinical and curative in nature’ ( D’Ambruoso et al. 2008 : 7).

The authors also reference CESCR General Comment 14 yet overlook the CESCR’s clarification of States’ obligations to address preventative (public health) dimensions of the right to health. They imply that human rights frameworks cannot address the allocation of scarce health resources at a population level. Yet Hogerzeil et al. (2006) address these issues squarely, noting, ‘Most public budgets are not infinite and at a certain moment choices have to be made. Progressive implementation of the right to health requires a State to choose which components should be implemented first’ ( Hogerzeil et al. 2006 : 310).

The application of the right to health to public health challenges and the allocation of scarce resources in practice is well-illustrated by the jurisprudence in South Africa, where the Constitution (section 27(1)) entrenches ‘the right to have access to health care services’ Section 27(2) states, ‘The state must take reasonable legislative and other measures, within its available resources, to achieve the progressive realization of each of these rights’. In 1998 the South African Constitutional Court recognized the limits of available resources when it refused to compel a provincial health service to offer renal dialysis to a gravely ill patient. Yet in 2002 the same Court ordered the provision of Nevirapine to pregnant women living with HIV to prevent mother to child HIV transmission ( Forman 2008 ). The South African experience demonstrates that Courts can apply a rights-based framework to public health challenges, including regarding the allocation of scarce resources.

Nonetheless, D’Ambruoso et al. (2008) conclude that, ‘In practice … the right to health is likely to fail as a public health planning tool’. Instead, the authors suggest that the right to development, as advanced in the 1986 UN Declaration on the Right to Development, ‘offers an avenue to inform public health planning from a human rights perspective that addresses the limitations of the right to health’ ( D’Ambruoso et al. 2008 : 7) The authors rely extensively on a 2008 article proposing the incorporation of the principles in the Declaration on the Right to Development in soft law, and the adoption of a Framework Convention on Global Health to address these limitations ( Meier and Fox 2008 ). D’Ambruoso et al. (2008) conclude that the rights-based approach ‘could identify how and when to improve [public health] services’, yet also note that, ‘the right to development may provide a means to achieve the ethical obligations of the international community to poorer countries, through legally binding commitments and enforcement where necessary’ ( D’Ambruoso et al. 2008 : 8) The authors overlook the legally binding obligations and accountability mechanisms in the ICESCR.

There is limited acknowledgment of the contribution of regional legal frameworks and soft law guidance. Of the 48 articles which reference an international treaty or legal instrument, only 11 (23 per cent) mention a regional treaty or legal instrument, for example the African Charter on Human and Peoples’ Rights, the American Convention on Human Rights, the European Convention on Human Rights, or declarations such as the 2006 African Union Abuja Call for Accelerated Action towards Universal Access to HIV/AIDS, Tuberculosis and Malaria Services in Africa.

5.4 Limited exploration of the human rights framework

Two articles unduly limit their discussion of the international human rights framework, which in turn limits their conclusions regarding rights-based approaches. Both have authors with legal qualifications. Cubillos et al. (2012) reviewed universal health coverage and litigation in Latin American countries without noting regional or international legal frameworks and related litigation. Yet the Inter-American human rights system is a source of legal obligations regarding the right to health in the region and has been used to this effect ( Meier and Ayala 2014 ; Meier and Yamin 2011 ) Following litigation, in 2001, the Inter-American Commission on Human Rights ordered the provision of anti-retroviral treatment to people living with HIV in El Salvador ( Hogerzeil et al. 2006 ; UNAIDS 2006 ).

Similarly, in an extensive textual review of UN treaties, Chawla et al. (2017) intended to go beyond moral obligations to explore support for emergency and essential surgical care and anesthesia (EESCA) in international law. However, they make no reference to the general comments or other interpretative guidance of the relevant UN treaty bodies. The authors note,

To further advocate for improved health by strengthening EESCA, greater political commitment from UN Member States is needed to translate EESCA from a moral responsibility to realization of the universal right to health. It may be useful to leverage language from existing international treaties and employ a human rights-based approach ( Chawla et al. 2017 : 1209).

The authors’ conclusion that, ‘A number of United Nations multilateral treaties support available and equitable emergency care’ ( Chawla et al. 2017 : 1216) would have been greatly strengthened with reference to the authoritative interpretations of the relevant treaties. These include the UN Committee on the Elimination of Discrimination Against Women in General Recommendation No. 24 on Women and Health ( UN Committee on the Elimination of Discrimination Against Women 1999 ) and the CESCR, which addresses emergency obstetric services in General Comment 14 ( UN Committee on Economic, Social and Cultural Rights 2000 ).

5.5 Perceived value of the human rights-based approach

Many authors commented positively on the human rights-based approach, as noted below.

5.5.1 Participation and the engagement of communities

Many articles noted the importance of participation as an element of the rights-based approach, for example in the development of national health plans and emergency care systems. One article noted, ‘The use of a rights-based approach is not only important during the development of emergency care systems, but also for evaluating and improving to [sic] the system. Assessment is essential to ensure that countries are accountable and meet their human rights obligations’. The authors note the importance of ‘involvement of the community’ during such assessments ( Burkholder et al. 2019 : 616). Structured and effective policies for community participation are noted as important for public health, as is ‘the normative importance of participation in realizing a rights-based approach to health’ ( Meier et al. 2012 : 1) One author, notably from the global South, observed,

Probably the most effective and efficient way to bring about the progressive realization of the right to health is through a human rights-based approach to health; an approach that pays particular attention to the principles of participation, accountability, non-discrimination, equity, and recognition of national and international legal provisions of the right to health. It calls for an analysis of the design, implementation, and evaluation of healthcare programmes in a participatory and transparent manner ( Malagala 2009 : 495).

5.5.2 Leave no one behind

The principle ‘leave no one behind’ is now entrenched as one of the six Guiding Principles of the UN Sustainable Development Cooperation Framework ( UN Sustainable Development Group undated-b ). The role of the human rights-based approach to health in assuring access to health services for marginalized and vulnerable populations, who might otherwise be overlooked, is seen as an additional benefit to public health programmes. Hanefeld et al. (2015) discuss the population wide provision of HIV treatment as part of a wider HIV prevention strategy (as antiretroviral therapy also reduces infectiousness) and note that

‘systematic and explicit integration of a rights-based approach to all aspects of such a programme could ensure that no ‘blind-spots’ develop and that the human rights of the entire population are respected and protected. At the same time, focus and attention on rights principles also strengthens such an intervention’ ( Hanefeld et al. 2015 : 124).

5.5.3 Creation of an enabling environment where human rights are more likely to be realized

One article, which references the UN Common Understanding, studied the human rights dimensions of food, health, and care among female adolescents in children’s homes in Uganda. This group was chosen because, ‘a central element of a HRBA is to focus on the most vulnerable groups in society’ ( Vogt et al. 2016 : 4). The authors state they were guided by the human rights principles of non-discrimination, participation, empowerment, and human dignity applied to the adolescents as rightsholders, as well as respect for the rule of law and accountability. Standards were drawn from the ICESCR and the UN Convention on the Rights of the Child, and the General Comments of their respective Committees. The authors note that, ‘Analysing the findings in light of human rights principles can contribute to an understanding of why—or why not—the conditions in children’s homes complied with specific standards for the rights to adequate food, health and care’ ( Vogt et al. 2016 : 12). Most notably, the researchers approached the study on the basis that under both international and Ugandan constitutional law, ‘all Ugandan children have the human rights to adequate food, to the highest attainable standard of physical and mental health, and to the right to active caring practices that go beyond protection’ ( Vogt et al. 2016 : 10).

5.5.4 Mutual reinforcement with other economic and social rights

The application of rights-based approaches to economic and social rights in one area can also reinforce another area. Thus, ‘the contribution of rights-based approaches to food poverty and food insecurity both coincide and overlap with discourses and experiences of those working in the right to health, of which the right to food is both constituent and partner’ ( Dowler and O’Connor 2012 : 50). This observation reflects the affirmation of the 1993 UN World Conference on Human Rights that, ‘All human rights are universal, indivisible and interdependent and interrelated’ ( UN OHCHR undated-c ).

5.5.5 As a framework for technical guidance on implementing health policies and services

Rights-based approaches are also perceived as providing practical guidance in the delivery of health services: ‘Rights-based care provides nurses with the tools to ensure that individuals, populations, and communities are not only getting the best care, but care that reflects humane practices and does not violate their human rights’ ( Ivanov and Oden 2013 : 7). Cook (2013) notes that OHCHR has compiled useful practices of human rights-based approaches to eliminate preventable maternal mortality and morbidity ( UN OHCHR undated-a ; Cook 2013 ). As noted, the endorsement of these approaches by the UNHRC gives them greater weight and authority.

5.5.6 As both process and content principles

The use of human rights principles as providing guidance on both process and content in the implementation of policies and programmes is explored by Szablewska and Kubacki in a discussion of social marketing campaigns conducted in response to States’ public health obligations. They suggest that ‘many dilemmas in identifying the social good in social marketing could be addressed by turning to human rights principles, and, in particular, by following a human rights-based approach’ ( Szablewska and Kubacki 2019 : 871). The authors identify three pairs of principles in the UN Statement of Common Understanding, namely transparency and accountability, equality and nondiscrimination, and participation and inclusion, as ‘process principles.’ The authors suggest that these process principles sit alongside the ‘content principles’ of universality and inalienability, indivisibility and interdependence and interrelatedness ( Szablewska and Kubacki 2019 : 877).

5.5.7 Offers an integrated, legal framework for health which reflects its social determinants

Discussing migrant farmworkers in the USA, Ramos (2018) suggests that the human rights-based approach can offer a framework for addressing the health of a vulnerable population which ‘weaves together the human rights to health, employment, and information, and provides a legal framework that can be operationalized through addressing the social determinants of health, thereby improving not only outcomes, but also processes at a local, state, and national level’ ( Ramos 2018 : 29). The reference to the social determinants of health also grounds the HRBA in the non-medical factors which influence health outcomes. The ‘social determinants of health’ analysis builds on the 2008 report of the WHO Commission on Social Determinants of Health and remains a contemporary public health framework ( World Health Organization undated ).

5.6 Criticisms of human rights-based approaches to health

Several articles express caution about or criticism of human rights-based approaches, including in the context of the right to health. These concerns have evolved over time. In 2010, Gruskin et al. noted scepticism about rights-based approaches to health among UN agencies, major governmental bilateral organizations, and international NGOs active in health. The authors observed that, while the public health community has come to a largely shared perspective on the value of a human rights lens on health, development actors still struggled with how to operationalize a rights-based approach to health ( Gruskin et al. 2010 : 129). In 2011, Meier and Yamin suggested that litigation to advance the right to health (for example regarding access to medicines for HIV and AIDS) may be perceived as ‘distorting governance for public health’ and produce a backlash against the rights-based approach. They advised further research and advocacy to understand the connection between human rights litigation and public health promotion ( Meier and Yamin 2011 : 83–84).

In 2012, Dowler and O’Connor explored rights-based approaches to food poverty in two high income countries as a right to health issue. The authors note ‘wariness among anti-poverty activists, who see rights-based approaches as inaccessible or potentially adversarial, despite the possibilities of reframing familiar issues towards social justice and entitlement [citation omitted]’ ( Dowler and O’Connor 2012 : 6). In 2014, Unnithan and Heitmeyer, discussing the right to health in particular, cautioned that rights may need ‘translation’ to reach communities. They noted that in rural India,

Rights-based approaches to development were far from being uncritically accepted by CSO [civil society organization] actors, whether at community level or operating at higher levels within their organizations … a focus on rights was viewed as inviting confrontation; supporting the marginalized, promoting individual interests; playing down duty and responsibility; enhancing institutional accountability; changing institutional foci and processes; promoting collaboration with private enterprise; conflating safety with efficiency in health service delivery; and as strengthening the role of the state in service delivery. [There is a] … complex interaction between ‘negative’ rights (civil and political rights) and ‘positive rights’ (economic, social and cultural rights, including the right to health) ( Unnithan and Heitmeyer 2014 : 1373–74).

The authors also noted that the different ‘translations’ of rights presented to poor rural communities were themselves subject to the interpretation and self-interest of the CSOs involved. They concluded that ‘such translation work has most traction and moral force when it responds to local exigencies and needs in ways that the universal language of human rights and state development discourse do not acknowledge’ ( Unnithan and Heitmeyer 2014 : 1381). Nonetheless, other authors have commented positively on the role of CSOs in this regard, suggesting that civil society organizations can assist through the ‘vernacularization’ of the international language of human rights ( Strecker et al. 2012 : 339, 341).

Yamin cautions that although human rights-based approaches were an attempt in the 2000s to build bridges of practice fields, ‘the way [they] generally have been designed too often reproduces the epistemic and institutional power structures within each field, rather than exposing and subverting them’ ( Yamin 2019 : 358).

These criticisms deserve careful consideration; however, none is fatal to human rights-based approaches to health, which are evolving in response. Early criticisms expressed by development actors regarding the operationalization of the right to health are in part addressed by the detailed OHCHR guidance on the application of HRBA to maternal mortality and morbidity, and the application of this guidance to other health challenges. By 2016, the UN and several other major multilateral and bilateral development agencies had referenced human rights in their development cooperation frameworks and were developing practical guidance for their application ( Piron and O’Neil 2016 : 92–120). Certainly, the vernacularization of human rights-based approaches is part of the social mobilization for rights; Heywood has described how the social mobilization around access to medication for HIV infection in South Africa was driven by the popularization of human rights concepts among communities of people living with and affected by HIV ( Heywood 2009 ).

Rather than abandoning human rights-based approaches to health, Yamin calls for ‘destabilizing the depoliticized ways of framing the world that stem from disciplinary orthodoxies in medicine and public health’. Yamin observes that the health sciences often operate within neoliberal frameworks, and in increasingly privatized health systems—and these relationships need to be unpacked and challenged ( Yamin 2019 : 358–59). Yamin has since observed that we now have far greater clarity and guidance on many aspects of HRBAs, including from diverse case studies ( Yamin 2023 : 221).

The above criticisms of HRBAs to health largely reflect the findings of this research: differing conceptions held by diverse stakeholders reflect a lack of a common understanding of HRBAs, or even of the legal basis of the right to health in international law.

No discipline can claim sole ownership of the terms ‘human rights’, ‘right to health’ or ‘rights-based approach.’ These terms may be used differently by various stakeholders, including from the legal, health and development domains. Scholars and advocates should therefore be encouraged to state their perspectives and to define their terms. Two decades ago, the (former) UN High Commissioner for Human Rights, Mary Robinson, emphasized that the legal character of the international treaties should be at the heart of a human rights approach ( Robinson 2005 : 38). It would be helpful if authors who intend to ground the terms ‘right to health’ or ‘human rights-based approach to health’ entirely in ethical frameworks were also explicit about this approach.

There is yet no commonly accepted definition of the human rights-based approach to health. The UNHRC has provided an authoritative definition in the context of maternal morbidity and mortality. A statement of more general application from the UNHRC would provide a welcome clarification. In any case, Hunt’s warning remains prescient: merely repackaging the right to health as the human rights-based approach to health risks overlooking key elements of the right to health.

There are some practical steps which may be taken to overcome the challenges in interdisciplinary dialogue about human rights-based approaches to health. More interdisciplinary scholarship can be encouraged. Scholars publishing on the right to health should seek co-authors with human rights law or public health qualifications, as relevant. All the articles in the above review set were peer-reviewed. Thus, it appears that many of these peer-reviewers also lacked an understanding of international human rights law. Perhaps this is not surprising, as peer-reviewers are often selected from among authors’ nominations. Peer-reviewers with complementary expertise should be identified. Unfortunately, most academic institutions research and teach health and law separately. Interdisciplinary centres of excellence in health, law and human rights offer an opportunity to overcome these historical obstacles to interdisciplinary dialogue and understanding.

The author acknowledges with gratitude comments on earlier drafts of this article by Prof. Brigit Toebes and Dr Marlies Hesselman, Faculty of Law, University of Groningen. The comments by the anonymous peer reviewers are also gratefully acknowledged.

None declared.

The author declares that no funding was received in connection with this research.

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