Joanna Maziarczyk, LL.B. International and European Law, University of Groningen, j.e.maziarczyk student.rug.nl

The right to health - what it encompasses and how it should be protected - has been a subject of extensive debate among policymakers and scholars.[1] The concept has undergone significant developments, such as the recognition of the ‘underlying determinants of health’ in 2000 which highlighted its complexity and interconnection with other aspects of life.[2] Its broad scope can facilitate adaptability to specific needs of certain groups and populations. In relation to Indigenous peoples, right to health is understood in a holistic manner, with emphasis on the significance of self-determination, community and land.[3] This approach ties in with recent developments in human rights law, which acknowledge legal connection between health, land and of rights of nature, reshaping legal understanding of the inextricable link between environmental law Indigenous health rights.[4]

An Overview of the Right to Health

The right to health is enshrined in several international instruments, including the 1946 Constitution of the World Health Organisation,[5] the 1948 Universal Declaration of Human Rights,[6] and the International Covenant on Economic, Social and Cultural Rights (ICESCR).[7]   The ICESCR refers to it as to the right to the ‘enjoyment of the highest attainable standard of physical and mental health’[8] and extends beyond access to medical care to include the ‘underlying determinants of health’ - such as safe and potable drinking water, adequate sanitation, functioning health facilities, and access to essential medicines - broadening the obligations of States to address the wider conditions necessary for achieving good health.[9] Nevertheless, these documents still view health from an individualistic perspective rather than that of communal well-being. This has been pointed out by scholars such as the 2002-2008 UN Special Rapporteur on the Right of Everyone to the Enjoyment of the Highest Attainable Standard of Health Paul Hunt, who notices that contemporary human rights tend to focus on the individual and their entitlement.[10]

Self-determination as the Cornerstone of Indigenous Health Rights

While the rights stated above apply without discrimination to all peoples including Indigenous communities,[11]  the right to health is also enshrined in documents focusing on the rights of the Indigenous Peoples, such as the UN Declaration on the Rights of Indigenous Peoples (UNDRIP). While not legally binding, UNDRIP is largely used as an interpretative tool by UN bodies or withing the Inter-American and African human rights systems, and it has been introduced into the domestic legal system of countries such as Canada, Bolivia and New Zealand.[12] The UNDRIP emphasises Indigenous people’s right to improvement of their social and economic well-being,[13] affirms the right to lead and manage their own health development programs,[14] protects the rights to use traditional medicines and health practices alongside access to other health or social services,[15] and safeguards environmental rights including productive capacity of lands and resources.[16] These provisions strongly reflect the right to self-determination which protects the Indigenous peoples’ right to freely determine their political status and pursue their development, [17] showing its role as a foundational principle of Indigenous health. Special Rapporteur on the Rights of Indigenous People, Victoria Tauli-Corpuz, stressed that successful realisation of the right to self-determination allows for all collective and individual rights – such as the right to health – to be exercised.[18] This demonstrates that self-determination is not only a political right, but a prerequisite for the design and control of health systems that more strongly reflect Indigenous values.

Relationship Between Land and Health of Indigenous Peoples

The recognition of the right to self-determination of Indigenous populations involves acknowledging their unique traditions and knowledge systems.[19] The Human Rights Committee’s General Comment No. 23 expanded the interpretation of right to culture under Article 27 ICCPR to specifically include and protect Indigenous populations; it recognised ‘culture’ as not a static set of customs, but a living and dynamic relationship embedded in land and resources.[20] The Committee’s case of Poma Poma v Peru reaffirmed this link between culture, territory and use of its resources for Indigenous peoples, stressing the connection between health and land and stressing the impact of environmental degradation on Indigenous peoples’ physical and mental well-being.[21]

For many Indigenous communities, ‘health’ is a concept closely linked to the community rather than the individual; it has an important spiritual element and relates to the well-being of the land, planet and the ecosystem.[22] The modern movement for the rights of nature reflects the Indigenous worldview on the reciprocal relationship between the Earth and people.[23] The IACtHR’s Advisory Opinion No 32 which recognised nature as a subject of rights reinforces this perspective by affirming that the protection of the environment is crucial to Indigenous peoples’ realisation of human rights.[24] Its emphasis on intrinsic relationship between degradation of ecosystems and Indigenous health, cultural identity and self-determination shows the development of a strong interconnection between Indigenous health and rights of nature.   

Conclusion

As this analysis has shown, the Indigenous right to health cannot be but deeply rooted in a holistic understanding of well-being – one that extends beyond individual health  and includes connection to land, community and self-determination. This view affirms that health cannot be fully realised without recognition of Indigenous peoples’ inherent rights to their ancestral lands and environment, and protection of their culture. The evolving international legal discourse on the intersection of the right to health and emerging recognition of the rights of nature increasingly reflect and validate this perspective, facilitating development of comprehensive frameworks that will connect human health with environmental integrity. 

[1] Joseph J. Amond and Carmel Williams, ‘Thirty Years of Scholarship and Debate: Advancing the Right to Health’ (2024) 26(1) Health and Human Rights Journal, 1

[2] Joseph J. Amond and Carmel Williams, ‘Thirty Years of Scholarship and Debate: Advancing the Right to Health’ (2024) 26(1) Health and Human Rights Journal, 4.

[3] Corrine  Lennox and Carolyn Stephens, ‘Realizing the right to health for minorities and indigenous peoples’ (2013) Minority Rights Group <https://minorityrights.org/resources/realizing-the-right-to-health-for-minorities-and-indigenous-peoples/> 1.

[4] Eric C Ip, ‘An Emerging Planetary Health Law’ (2023) 74(1) International & Comparative Law Quarterly 1047, 1050-1052.

[5] Constitution of the World Health Organization (adopted 22 July 1946, entered into force 7 April 1948) 14 UNTS 185, Preamble.

[6] Universal Declaration of Human Rights (adopted 10 December 1948 UNGA Res 214 A(III)) art 25.

[7] International Covenant on Economic, Social and Cultural Rights (adopted 19 December 1966, entered into force 3 January 1976) 993 UNTS 3 (ICESCR) art. 12(1).

[8] ICESCR art12(1).

[9] CESCR, General Comment No. 14: The Right to the Highest Attainable Standard of Health, (11 August 2000) UN Doc E/C.12/2000/4 para.4.

[10] Marilyn Garson, ‘New Zealand Chief Human Rights Commissioner, Paul Hunt: ‘Human Rights Are Sites of Struggle’’ [an interview with Paul Hunt] (The Lovepost, 27 October 2023)

[11] CESCR, General Comment No. 14: The Right to the Highest Attainable Standard of Health, (11 August 2000) UN Doc E/C.12/2000/4 paras.12(b), 18.

[12] Felipe Gomez, ‘The UNDRIP: An Increasingly Robust Legal Parameter’ 2019 23(1-2) 7, 9-14.

[13] United Nations Declaration on the Rights of Indigenous Peoples (adopted 13 September 2007, entered into force 2 October 2007) A/RES/61/295 (UNDRIP) art 21.

[14] UNDRIP art 23.

[15] UNDRIP art 24.

[16] UNDRIP art 29.

[17] UNDRIP art 3.

[18] UNHRC, ‘Report of the Special Rapporteur on the Rights of Indigenous Peoples’ (10 August 2018) UN Doc A/HRC/39/17 para 15.

[19] ICESCR art 1, UNDRIP art 3.

[20] UN Human Rights Committee, ‘General Comment No 23: The rights of minorities (Art 27)’ (8 April 1994) UN Doc CCPR/C/21/Rev.1/Add.5 para 7.

[21] Ángela Poma Poma v Peru (Communication No 1457/2006) UN Doc CCPR/C/95/D/1457/2006 (Human Rights Committee, 27 March 2009) para 7.

[22] Leroy Little Bear, ‘Naturalizing Indigenous Knowledge’ (July 2009) Canadian Council On Learning 7, 22-23.

[23] Malgosia Fitzmaurice, ‘The Right of Natura and the Identity of Indigenous Peoples’ 2023 The Yearbook of Polar Law 20, 22.

[24] Inter-American Court of Human Rights, Advisory Opinion AO-32/25, Climate Emergency and Human Rights (29 May 2025) paras 279-280.