矯正錯誤：美洲區域中健康權利可訴訟性及司法化現象

Righting Wrongs: The Judicialisation and Justiciability of Health-Related Rights in the Americas

在美洲區域，健康權司法化的現象十分突出，病患或遭環境污染影響的社區居民利用司法機構尋求各國對健康權之尊重和保護，公民社會組織也經常利用訴訟機制尋求健康促進。針對衛生措施司法行動主義的文獻，記錄了法律承認之權利與國家實踐之間的差距。本文回顧美洲人權委員會、美洲人權法院及其他基於聯合國人權條約所建立之委員會等國際人權機構裁決之與健康相關的案件，分析健康議題在這些機制中所呈現之多元面貌。這些案件被「國際化」時係當其用盡當地救濟措施，而相關權利損害未被國家妥善回應。隨著衛生科學與介入措施之發展，權利主張國際化確實是追求可達到最高健康標準之有用途徑，但該策略也可能受到個案請願之範圍與效力等限制。

The judicialisation phenomenon is prominent in the Americas, where people who suffer from diseases and adverse health impacts of environmental pollution utilise judicial institutions seeking the states’respect and protection of their right to health. Litigation has also been a mechanism for the local community and civil society organisations to promote the right to a healthy environment. Gaps between the rights recognised in law and realised in practice have been well documented in the growing body of literature on such judicial activism for health. Reviewing the health-related cases decided by regional and international human rights bodies such as the Inter-American Commission on Human Rights, Inter-American Court of Human Rights, and other UN human rights treaty-based committees, this paper presents the ways in which these institutions frame health(care) issues. These cases were internationalised when local remedies were exhausted while the states had not fully addressed the complaints. As health science and intervention develop, internationalising relevant rights claims has been proven to be a helpful approach to achieve the highest attainable standard of health, but the strategy may also be limited by the scope and effect of individual petitions on a case-by-case basis.