China's Legislative Commitments towards the Right to Health Care

Abstract

INTRODUCTION The means by which the right to health care is given effect in the domestic legal order vary from one State to another, yet in many instances, legislation is ‘highly desirable’ and sometime ‘indispensable’ to ensuring the effective protection of the right to health care. To fully comply with its obligations under this right, China has enacted a series of laws and regulations for providing solid legal ground for the promotion and protection of the right to health care. This chapter examines the legislative measures China has adopted to implement its (core) obligations under the right to health care. Section 3.2 first provides an overview of China's domestic legal and political system. Given that a culturally-rooted understanding of human rights has a clear impact on the research of the right to health care in China, this section also demonstrates the evolution of the Chinese conception of human rights and the general protection of human rights in China. Subsequently, section 3.3 first discusses the general practice of domestic application of international (human rights) treaties. This section begins with an introduction of the means by which international (human rights) treaties are given effect in domestic legal systems and some general observations regarding monism and dualism. It is followed by analyses of the direct effect and the precedence of these treaties. This section then moves to the discussion of China's specific practice. Section 3.4 forms the core part of this chapter, by critically examining the legislative measures China has taken to implement the right to health care in its domestic legal system. It conducts a secondary data analysis of China's existing health legislation and adopts the core obligations detailed in chapter 2 as the assessment criteria. Given the considerable number of Chinese laws at various levels, this section only provides a non-exhaustive analysis of the Chinese Constitution and the laws at the national level. Notably, legislation is not the only measure by which to implement the right to health care. There are other appropriate measures such as the adoption of national health policies and plans of action, or the establishment of judicial and other types of accountability mechanisms, which will be discussed further in chapters 4 and 7, respectively. Section 3.5 concludes with a discussion on the gaps between de jure and de facto implementation of the right to health care in China's legal system.