Is a right to health a means to protect public health? South Africa as a model for a communitarian interpretation of the right to health for the promotion of public health

The right to health has primarily been developed and understood as an individualistic right and framed in terms of healthcare services. Public health and disease prevention have become increasingly important, particularly with the increasing occurrence of novel pandemics. The ability of the traditional framing of the right to health is less helpful in contexts where one seeks to apply a human rights-based approach to public health interventions. Though it has been posited that this may be remedied through the introduction of a collective right to public health, the South African experience illustrates the potential of the existing right to health to support public health efforts. Drawing on the African concept of ‘ubuntu’, one can adopt a communitarian approach to the right to health to enforce and protect the right, even where identifying discrete rights-holders and beneficiaries is challenging. This paper further argues that this communitarian approach to the right to health can ameliorate some difficulties experienced with judicialisation of health in other jurisdictions. The South African experience of judicial enforcement of the right to healthcare is used to illustrate the potential value of utilising a communitarian approach to the development of the right to health to include public health.