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CommentaryOpen Access

An Explication on Broadening the Definition and Scope of Maximum Available Resources under the General Comment 14 of the ICESCR to include Islamic Taxation in Financing the Right to Health

LA Latif*

DOI: 10.26717/BJSTR.2017.01.000313

  • Author Information Open or Close
    • PhD, Commercial Law Department, Kenya
    • Corresponding author: L A Latif, PhD Candidate (Cardiff), MA (UDE), LLM (UoN), LLB (First Class Honours, UoN), PGDip. Law (KSL), CTF. IT (WWU), CTF. HRL (Harvard FXB), Commercial Law Department, P.O. Box 30197, GPO, Nairobi, Kenya

Received: August 09, 2017;   Published: August 30, 2017

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Abstract

There exists no comprehensive definition on what constitutes “available resources” as envisaged under article 2.1 of the International Covenant on Economic, Social and Cultural Rights. There is also an absence of an extensive discourse on this definition beyond stating that it refers to both the resources existing within a state as well as those available from the international community through international cooperation and assistance. The definition does not recognize Islamic forms of taxation that are domestically available to an Islamic as well as a secular state. Accordingly, the problem identified in this explication is that of linking zakat; a form of Islamic taxation, to the concept and definition of maximum available resources. The book by Waris (2015) argues that there is a link between taxation and human rights (the right to health being among such rights). Waris pushes this proposition to the point of demonstrating the validity of the argument that rights require resources for their realization and subsequent enforcement, but she stops short of discussing the exact fiscal mechanism that could be used for the realisation and enforcement of specific rights. This explication having identified this gap aims to advance an argument that allows for broadening the international community understands of what constitutes maximum available resources that a state can utilise to finance the right to health. It proposes the introduction of zakat as a potential method of mobilising financial resources domestically available and argues for its inclusion in the definition and scope of maximum available resources.

|Abstract| |Introduction| |The Rationale for Including Zakat within the Definition and Scope of Maximum Available Resources| |Justifying Zakat as an Alternative Source for Financing the Right to Health| |The Current Financing Challenges in Enforcing Health Rights, Hence the Need to Tap into Zakat Revenue| |Conclusion| |References|