Mechanisms of Accountability for the Realization of the Right to Health in China

Qiu, Shengnan; Macnaughton, Gillian

Within China's legal system, there are other statutes and regulations concerning the health protection of different groups. For example, Articles 53 and 54 of the Labour Law provide health protection standards for worksites 33 The Women's Rights Protection Law addresses many health-related rights for women, including health benefits related to childbearing, health and safety at work, and the prohibition against domestic violence. 34 The Environmental Protection Law gives attention to quality air and water, which are underlying determinants of health. 35 Meanwhile, at the provincial level, there are also regulations concerning health issues. Although the original purpose of these laws was not s. qiu and g. macnaughton / papers, 279-292 to protect health as a human right, some aspects of the right to health have been indirectly protected in courts through litigation under these laws. Such health-related judicial cases have increased in recent years. One example is China's first public interest litigation on air pollution, initiated by the All-China Environment Federation, which was adjudicated in July 2016. The Dezhou Intermediate Court found that the defendant's air emission from its factory did not meet national standards and ordered the defendant to pay 21 million RMB (about US$3 million) to the government for air reparation. 36 Additionally, individuals have been surprisingly successful in contract lawsuits against commercial insurers for the denial of benefits and in malpractice claims against hospitals for the poor quality of health care provided. 37 While courts may hold these market participants to market norms, they have been less effective in holding state actors to account. 38 Moreover, as Christina Ho notes, "[l]itigation is a relatively weak tool in China." 39 Because courts are expensive and answerable to political bodies, among other reasons, people often prefer alternatives such as mediation and arbitration. 40 Further, in keeping with the desire to maintain a "harmonious society," the government has also preferred mediation over litigation and has encouraged courts "to meet quotas for successfully mediated cases." 41 As a result of this pressure to pursue mediation, people may also be steered away from litigating in the courts. 42