Declaration of Independence 

In the General Congress of the 13 states, July 4 1776

Probably the most widely understood single complaint of the thirteen colonies and their first calls for freedom from Britain was the call against "taxation without representation". Surprisingly this popular slogan was not translated explicitly into law of the newly formed nation. The Declaration of Independence, however, which laid the foundation for need and justification of forming a new nation includes this complaint among its list of reasons that the new nation shall be formed:

The history of the present King of Great Britain [King George III] is a history of repeated injuries and usurpations, all having in direct object the establishment of an absolute Tyranny over these States. To prove this, let Fact be submitted to a candid world (27 listed complaints) including:

For [King George III] has imposed Taxes on us without our Consent.

There can be no doubt that this foundation of our nation is being violated by the denial of health care services to many millions of Americans, even though they pay hefty taxes to fund public health care. Fully 65% of our nations total health care expenditure is already made from public funds.

US Constitution, Amendment IX, Amedment VI cl.2

Ratified by 11 states on December 15, 1791. First US federal law.

The first paragraph of our first federal law mentions six goals towards which this first (and all future laws?) are directed. These five goals are the reasons we have a government: (1) to establish Justice, (2) insure domestic tranquility, (3) provide for the common defense, (4) promote the general Welfare and (5) secure the Blessings of Liberty to ourselves and our Posterity.

Amendment IX reads (in its entirety): The enumeration in Constitution of certain rights, shall not be construed to deny or disparage others [other rights] retained by the people.

In other words the Amendments to the Constitution were explicitly NOT intended to delineate the complete set of rights that the American people were to have - not even back then in 1791. And the Congress thought it important to state this explicitly.

In fact, the first draft of the US Constitution which Thomas Jefferson received from James Madison (Jefferson was in Europe on state business) did not have any amendments (no "Bill of Rights"). Jefferson wrote Madison that a short list such as the first ten Jefferson drafted ought to be included and Madison responded that specifying them was unnecessary since it was obvious that the people retain such rights - and that the only need was to restrict the power of the state. Jefferson replied yes it is obvious to us now, but it might not be so for future generations, so let's include at least this short basic list.

Amendment VI, cl.2 reads: This Constitution . . . and all Treaties made, or which shall be made, under the Authority of the United States, shall be the supreme Law of the Land; and the Judges in every State shall be bound thereby.

Charter of the United Nations Charter 

Ratified by the U.S. Senate on July 28, 1945.

The preamble states that the peoples of the United Nations have determined to reaffirm faith in fundamental human rights, in the dignity and worth of the human person, in the equal rights of men and women and of nations large and small and to establish conditions under which justice and respect for the obligations arising from treaties and other sources of international law can be maintained, and to promote social progress and better standards of life in larger freedom.

Article 55 of the UN Charter states: The UN shall promote higher standards of living, full employment, and conditions of economic and social progress and development . . . as well as universal respect for, and observance of, human rights and fundamental freedoms for all without distinction as to race, sex, language or religion.

As part of the "supreme law of the land" of the United States (U.S. Const., Art. VI cl.2.) this charter enumerates the rights of individuals and duties of every nation that is a signatory to the treaty. All levels of U.S. Government are expected to enforce rights guaranteed by the Charter. The US supreme court, two circuit courts, two district courts and one tax court have cited the UN Charter as U.S. law.

United Nations Declaration of Human Rights

The United Nations Declaration of Human Rights which was signed by all members of the general assembly (including the USA) in 1948. The signing of this document was obligatory for every nation which desired to participate and be represented in the world body. The United Nations Declaration of Human Rights which was signed by all members of the general assembly (including the USA) in 1948. The signing of this document was obligatory for every nation which desired to participate and be represented in the world body.

Preamble: Whereas recognition of the inherent dignity and of the equal and inalienable rights of all members of the human family is the foundation of freedom, justice and peace in the world . . .


and Article 25: 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, and the right to security in the event of unemployment, sickness, disability, widowhood, old age or other lack of livelihood in circumstances beyond his control.

We have included some of the preamble of the former document since it bears so strongly on the preceding discussion of "natural rights". "Inalienable rights" sounds a lot like our own Declaration of Independence written 170 years earlier.

Note that this, one of the founding documents of the UN, established largely on US instigation, relies heavily in its opening statement and justification on the idea of certain rights belonging to all of humanity by mere virtue of their being part of the human family - the same idea as that of natural or essential human rights. Perhaps just as importantly these opening lines state that these rights are the necessary foundation for freedom, justice and peace. Let's assume that the words were well chosen after profound thought and that our nation's leaders were sincere in supporting these values, at least at the time.

Article 25 of this document goes well beyond just a superficial right to see a physician or other health professional (for a few minutes every 6 months?). No, it is explicitly the right to medical care, adequate to the preservation of their own and their family's well-being that is established here. And not just medical care (which must include necessary mental health services to be adequate) but also social services as needed to meet the same end. Not content with just saying everyone in all the signatory nations has these rights, the document goes on to specifically state that the sick, disabled and elderly are entitled to security for their well-being. Another very important point is that the document does not just advise all signatory nations that they write, recognize and respect these as civil rights within their nations. Rather, it states that these listed rights are already recognized rights of the world body and the signatory nations. I repeat its not that "health care should be a right", its that "health care is a right".

The UN Declaration of Human Rights has been used in over 150 cases in U.S. courts (as of early 2003). The document is not a treaty but a declaration and as such the U.S. Senate was never asked to ratify it. However, the language has become so well known that it has become part of the common law of the U.S., as well as of the world.

International Covenant on Economic, Social and Cultural Rights 

In October of 1977 the U.S. signed the International Covenant on Economic, Social and Cultural Rights. This document recognizes:

The right of everyone to the enjoyment of the highest available standard of physical and mental health. [to be implemented by] the creation of conditions which would assure to all, medical service and medical attention in the event of sickness.

Clearly this is one more signed document in which the US government declared its agreement with the concept of everyone being entitled to enjoy not just basic services, but "the highest available standard of physical and mental health". The US government by signing also acknowledged that the conditions which would assure such health and medical service and attention need to be provided.

Why did our government sign this document? Were we just unwilling to once more be singled out (albeit maybe along with Somalia, or earlier with apartheid South Africa) as the only nation which disregards health care of its citizens as a responsibility? And if we signed only because of embarrassment, why is it that we are concerned? Maybe our leaders wonder how we could expect any international respect, any trust in our international dealings with other populations, if it becomes widely appreciated that our government is singularly unconcerned with the welfare of its own citizens (not just those privileged by wealth and status).d.

As of early 2003 the ICESCR had been used in only one federal case, which was heard by the Fifth Circuit Court. That case alleged cultural genocide in Indonesia caused by a mining corporation. The case was not successful.

More discussion of the ICESCR

Vienna Convention on the Law of Treaties 

In May of 1969 this convention was signed unanimously by the Conference (including the USA).

Any treaty is void if, at the time of its conclusion, it conflicts with a peremptory norm of general international law. For the purposes of the present Convention, a peremptory norm of general international law is a norm accepted and recognized by the international community of States as a whole as a norm from which no derogation is permitted and which can be modified only by a subsequent norm of general international law having the same character.

The right to life is the most basic of human rights and some international tribunals have pointed out that it has jus cogens status, it a norm accepted and recognized by the international community of states as a whole, as described in the Vienna Convention, thus, it cannot be restricted by any treaty or agreement which might follow in world history. ^*1

CONTINUE reading more legal documents on the Right to Health Care CLICK HERE

References

1. Comments on the jus cogens principle and the application of same to the "Right to Medications [and other necessary health care] were from comments by Dr. AE Yamin, JD, MPH. Boston Univ International Law Journal Vol 21, No. 2 page 330