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INTRODUCTION

While calling for more accountability is certainly necessary for improving the realisation of the right to health, it is even more important to ensure that accessible, transparent and effective accountability mechanisms have been established for exerting accountability. Accountability mechanisms enable overseeing actors to hold State actors to account and to provide redress for violations of the right to health (or indeed any human right). The purpose of this chapter is to explore the nature and scope of accountability mechanisms that can hold State actors accountable for their right to health obligations at various levels.

Section 6.2 first clarifies the distinction between ‘accountability’ and an ‘accountability mechanism’. Subsequently, it proposes an analytical framework for analysing accountability mechanisms at different levels, within and outside health care systems. This framework is based on the three questions mentioned in chapter 5: who is accountable, for what are these actors accountable, and to whom are these actors accountable? Given that China is not a State party to any of the regional human rights treaties, the discussion in this chapter is confined to domestic and international accountability mechanisms. Paul Hunt, (one of the) former UN Special Rapporteurs on the Right to Health, has mentioned in several of his reports that the State undertakes a core obligation to establish a range of (domestic) accountability mechanisms so as to ensure the full enjoyment of the right to health. Section 6.3 offers an overview of judicial, quasi-judicial, political, administrative and social accountability mechanisms at the domestic level and illustrates how overseeing actors (i.e. right-holders and overseeing institutions) can hold State actors (with right to health obligations) to account through these mechanisms. Section 6.4 pays particular attention to the media, which function in this study as both an accountability mechanism and as an external overseeing institution. As will be discussed further in chapter 7, the media play a crucial role in exerting accountability in China. Nevertheless, the role of the media is perceived differently by scholars from different disciplines. The aim of section 6.4 is thus to synthesise existing studies across disciplines and to provide a comprehensive analysis of the role of the media in generating accountability. Section 6.5 provides a general discussion of international mechanisms for monitoring States parties’ compliance with their obligations under international human rights treaties.

BACKGROUND AND PROBLEM

Health is indispensable for living a life of dignity. As a matter of necessity, health, and in particular access to health care, are among the top concerns of every human being. As a result, there is a broad consensus that the right to the enjoyment of the highest attainable standard of physical and mental health (the right to health) is a fundamental human right. The right to health encompasses access to timely and appropriate health care, as well as access to safe drinking water, adequate sanitation, education, health-related information, and other underlying determinants of health. The right to health care, as one of the key aspects of the broader framework of the right to health, has been enshrined in a wide range of human rights treaties and has obtained considerable legal weight over the past decades.

Currently, there is an almost universal commitment to the right to health (care), as the core conventions incorporating the right to health (care) have been ratified by up to 99% of Member States of the United Nations (UN): of 194 Member States, 166 have ratified or acceded to the International Covenant on Economic, Social and Cultural Rights (ICESCR) (85%); 174 States are party to the Convention on the Rights of Persons with Disabilities (CRPD) (88%); 178 States are party to the International Convention on the Elimination of All Forms of Racial Discrimination (CERD) (90%); 189 States have ratified or acceded to the Convention on the Elimination of All Forms of Discrimination against Women (CEDAW) (96%); and all States but one (the United States of America) are party to the Convention on the Rights of the Child (CRC) (99%). Therefore, it can be concluded that all countries in the world have ratified at least one binding treaty that includes the provision of the right to health (care) and it can be stated that the recognition of the right to health (care) has reached near universality.

Furthermore, the growing legal recognition of health as a human right in international law has led to the development of normative frameworks for realising this right, including through General Comment 14, which is an explanatory document to Article 12 of the ICESCR. Although not legally binding, General Comment 14 provides authoritative guidance on how the right to health (care) can be implemented at the domestic level.

INTRODUCTION

This chapter evaluates the extent to which right to health-based accountability can advance the right to health care within China's unique legal, political and social background. The purposes of such an assessment are threefold. First, as outlined in chapter 2, States undertake a core obligation to establish a range of effective, transparent, accessible and independent accountability mechanisms in relation to duties arising from the right to health (care). In his mission to China in 2017, Philip Alston, the UN Special Rapporteur on Extreme Poverty and Human Rights, observed the existence of top-down mechanisms in China to control public officials; however, he also noted that ‘it is extremely difficult to identify any effective mechanisms or avenues’ that provide ‘regularized avenues for citizens to complain and seek remedies for relevant abuses’, ‘despite the plethora of procedures that exist in theory’. In light of this, by identifying existing mechanisms for exerting accountability in the context of the right to health care chapter 7 first examines whether China has discharged its core obligation to establish appropriate accountability mechanisms.

Second, previous (human rights or political science) scholarship addressing accountability has more or less focused on democratic countries with competitive, free and fair elections; relatively little attention has been paid to accountability in non-electoral regimes. This begs the question of whether the concept of accountability can be applied in the same fashion in non-electoral regimes. In fact, as explained in chapter 6, there is a considerable volume of literature and research criticising the effectiveness of elections for ensuring political accountability and aiming to identify other forms of accountability mechanisms to advance the right to health care. By taking China as a country study, this chapter can reach a greater understanding of accountability. States with similar legal and political settings can also draw lessons from China's experience.

Third, through extensive case analyses, this chapter explores the role that accountability can play in reducing abuses of power, assuring compliance with right to health standards and redressing violations of the right to health care within the context of China's current legal and political system. By identifying examples of good practice and obstacles to improved accountability, this chapter offers several recommendations for the enhancement of accountability. The recommendations, if fed directly into China's new round of health care reform (NHR), would eventually advance the right to health care in China.