Grounding Human Rights in a Pluralist World (Advancing Human Rights)

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On the contrary, human rights are an integral component of some global common goods. This article seeks to make a start on elaborating the meaning and implications of such an integrated, bifocal perspective in relation to global health policy. We begin, in the first section, by outlining the distinctive character of human rights: they are moral rights possessed by all human beings simply in virtue of their humanity.

Then, in light of the prominent role of human rights in global health policy debates, the next two sections focus on the human right to health. One important question is how that right is to be individuated within the overall set of human rights. This way of understanding the human right to health makes it clear that it is only one among a number of human rights that serve our interest in health and to which global health policy needs to be responsive.

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We then offer an account of how to specify the content of the human right to health, i. The process of content specification, we argue, involves the application of a threshold criterion that incorporates considerations of possibility and burden. In the fourth section, we explain why human rights cannot do all the work in shaping a just global health policy, giving special attention to the crucial role of health-related global common goods. We also respond to the converse hypothesis that global policy must be predominantly concerned with common goods as opposed to human rights.

This response turns on showing how common goods may include, as a component, arrangements that secure human rights. Global health policy advocates have repeatedly called for a post development agenda that gives a prominent place to policy objectives couched in the language of human rights. These calls echo the chorus of agreement among a wide variety of international actors—including the United Nations, NGOs, governments, and ordinary citizens—on the vital importance of a human rights basis for the new development goals more generally [ 3 — 5 ]. Charitably interpreted, as more than just a rhetorical ploy intended to convey a sense of urgent commitment, this emphasis on human rights embodies a vital insight.

The adoption of goals simply concerned with the promotion of human welfare—such as our interests in health, prosperity, education, etc. Human rights inject a distinctive moral dimension into policy objectives, one that is especially responsive to the plight of victims of injustice throughout the globe. The distinctive character of human rights consists in the fact that they are universal moral rights: moral rights possessed by all human beings simply in virtue of their humanity.

For example, neither beating a rival for a coveted job nor failing to donate your spare healthy kidney for a transplant need be wrongful. Human rights are a distinctive moral register of critical assessment, beyond assessments tracking rises and falls in individual or collective welfare.

The Human Rights State: Justice Within and Beyond Sovereign Nations

The foregoing does not mean that wellbeing as such, or elements of it such as the global burden of disease, lacks normative significance. It is just to say that it cannot displace the distinctive kind of moral assessment introduced by human rights: the idea of moral duties owed to each and every human being, the violation of which specifically victimizes the right-holder.

So far, we have spoken of human rights as a certain kind of moral norm. Of course, there is now a firmly established doctrine of international human rights law in which various health-related human rights form an integral part. But the morality of human rights is independent of its recognition by domestic or international law. A right does not need to be actually legally enshrined, let alone enforceable, to exist as a human right.

On the contrary, human rights law is best understood as deriving its distinct identity from the attempt to give legal effect to background human rights morality, insofar as it is appropriate to do so.

The place of human rights and the common good in global health policy

It is the background morality of human rights that is the main focus of this chapter. Three further preliminary observations are worth making in this connection. First, the duties associated with human rights include positive duties to engage in certain forms of conduct, such as the provision of health care services, as well as negative duties to refrain from certain conduct, such as administering medical treatment without consent.

Moreover, the positive duties associated with a right may be primary duties. In other words, they are duties that are not parasitic on other duties associated with the right, such as positive duties to compensate or make reparation triggered by a violation of some prior duty. Instead, human rights also impose primary positive duties to make certain goods and services available to their holders. Of course, there are special problems in the allocation of positive primary duties to duty-bearers, and in the specification of their content, which do not arise in the case of negative primary duties [ 8 ].

Second, there is no compelling a priori reason why the duties associated with human rights should be thought to fall exclusively on states, at least as primary duty-bearers. This idea is a distortion that a misplaced focus on legal instruments—constitutions and treaties—has introduced into thinking about human rights.

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Instead, we should maintain an open-minded and flexible attitude to the question of who the relevant duty-bearers are in any given time and place [ 6 , 10 ]. Multinational corporations, international organizations, and even individuals can be directly subject to human rights-related duties. Pharmaceutical companies, for example, may be directly subject to human rights obligations to make antiretrovirals and other drugs available to developing countries at a significantly lower cost than market price [ 11 ].

In an environment of accelerating globalization, with a concomitant decline of state power relative to various other global actors, the importance of not conceptually restricting human rights obligations to states is all the more pronounced. Indeed, precisely this insight is at the heart of the innovative UN Guiding Principles on Business and Human Rights, which seek to provide an authoritative specification of the human rights responsibilities directly applicable to corporations [ 12 ].

Finally, another a priori commitment to be resisted is the idea that a pro tanto case always exists for enshrining human rights as legal entitlements, let alone for taking the further step of making them enforceable legal entitlements [ 6 , 13 ]. Law is a vitally important mechanism of implementation, but it remains one mechanism alongside others, including social conventions, public opinion, and the inculcation of a rights-respecting ethos through fostering the internalization of human rights norms by individual and collective agents.

As Sen has stressed, whether and to what extent individual human rights should be enshrined in counterpart legal rights are a matter of what is inherently appropriate and works in all the circumstances, which is subject to considerable variation in time and place. Experience shows that making human rights legally claimable is sometimes counter-productive. For example, in Brazil the constitutionalization of the right to health appears to have facilitated a transfer of health resources to wealthier members of society who can afford the cost of litigation [ 14 ].

The overall health budget remained fixed, but the better-off engaged in litigation against the government to siphon off a larger share of it for themselves, often in order to treat less serious ailments. This lowered the cost of states publicly signing up to the goals in the first place, enhancing the likelihood that they would do so [ 16 ].

In short, the difficult and multi-faceted question of legalization is one that deserves extensive consideration on a case-by-case basis. No presumptive answer to it is already inscribed in the very nature of human rights. Human rights exist insofar as universal human interests generate obligations on others to respect, protect, and promote those interests in various ways.

We favour an objectivist and pluralistic account of the interests that ground human rights [ 17 ]. They are interests human beings possess independently of whether they actually desire their realization, and they are not limited to one kind of interest—autonomy, for example—or to one category of interests, such as those interests that qualify as basic needs [ 18 ]. Instead, a plurality of genuinely universal human interests are capable of generating duties on the part of others in the case of all human beings, simply in virtue of their humanity.

Moreover, essential to the rights-generative role of human interests is that they belong to distinct individuals with equal moral status in virtue of their humanity: the status of human dignity. This is central to explaining the resistance of human rights to trade-offs both against other rights and against non-rights based considerations.

The pluralistic theory of human rights claims not only that a plurality of interests is relevant to the justification of human rights generally but also that any given individual human right is typically grounded in a plurality of interests, such as autonomy, health, knowledge, friendship, accomplishment, play, etc. Indeed, the right to health may even include entitlements to medical services, such as non-therapeutic abortions or cosmetic surgery, that are not primarily intended to serve the health interests of the right-holder.

Hence, a diversity of interests helps to justify the existence of a human right to health and to shape its associated obligations.

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One way to fall into the trap of assuming that the human right to health is grounded exclusively in our interest in health is to adopt an unduly expansive interpretation of health. But, as has been repeatedly shown, this definition is far too broad.

Health, on any remotely useful understanding, is one element of wellbeing among others, not the whole of it. And this remains the case even though health bears pervasive constitutive and instrumental relations to the other elements of wellbeing. For the purposes of this article, we take health to be centrally concerned with the effective functioning of standard human physical and mental capacities [ 21 ].

A person can enjoy such functioning even when they are deficient in other elements of wellbeing, such as accomplishment and enjoyment. Moreover, they may even reasonably put their health at risk in order better to achieve some other aspect of wellbeing. There is a further crucial point worth making about the individuation of the human right to health.

Human rights

Although many familiar human rights serve our interest in health in all sorts of important ways, this does not automatically render them components of the general human right to health. Yet, such an overly inclusive interpretation of the right to health has been advocated by the Committee on Economic, Social, and Cultural Rights, in its influential General Comment 14, as well as by other UN organs and leading global health scholars [ 22 ].

According to this document, the human right to health incorporates a slew of other rights, including gender equality and freedom from torture and other cruel, inhuman, or degrading treatment or punishment [ 23 , p. After all, a colourable story can be told of how denial of the rights to citizenship, political participation, a fair trial, freedom of speech, religion, movement, and association, among others, can have a seriously detrimental impact on health.

Now, something is clearly awry if the human right to health is lumbered with such a bloated interpretation. However, a human right is not picked out straightforwardly by the profile of interests it serves but, we claim, by reference to the subject matter of the obligations it generates. More specifically, our suggestion is that the right to health should be construed as principally ranging over obligations concerned with the provision of health care services by medical professionals and public health measures, such as sanitation, potable water, clean air, alcohol, tobacco control, and so on.

Instead, determinants such as education, housing, employment, and a social environment free of gender and racial discrimination—insofar as there is a right to them—more plausibly fall under other rights. The rationale for excluding these social determinants is partly a holistic one, turning on avoiding excessive overlaps with other rights there is good reason to recognise as distinct rights.

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But there is also a deeper rationale, which brings back the role of the interests served by the right in a more sophisticated manner. Health care services and public health measures satisfy this criterion, but the social determinants of health typically do not. One cannot, therefore, infer that the right not to be tortured or the right against degrading treatment are incorporated in the right to health, since these rights are not properly understood as having some specific connection with the provision of health care or public health measures.

Sometimes the boundaries will be blurred, and there will occasionally be tolerable overlaps in the scopes of rights.

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For example, the provision of training in first aid, or of health education more generally, might plausibly come under both the rights to health and to education. In consequence, it may sometimes be that the identical course of conduct constitutes a violation, or a fulfilment, of more than one human right. Often, laws will need to draw sharp lines between human rights so that overlaps can be avoided, where this would be beneficial in some way.

We offer no general prescription for resolving these difficulties of line-drawing in a principled way, beyond the remarks about holism and primary and direct goals. That right, like all others, needs to be individuated by reference to the subject matter of the obligations associated with it. It might be objected that the rejection of the radical inclusivity thesis expresses little more than a preference for tidy normative housekeeping. But this is not so: it also underwrites the idea that there are a number of fairly specific and irreducibly distinct human rights, so that enumerating a list of rights such as that in the Universal Declaration is a meaningful endeavour.

It further caters to the idea that separating out various human rights is the best way of highlighting distinct normative concerns that might otherwise be obscured. It is worth underlining a significant practical pay-off of the approach we advocate. This is because the extent to which all health-enhancing rights are fulfilled will then need to be tracked. Progress towards such a massively sprawling goal is hard to monitor, and extremely difficult to achieve. This inevitably breeds uncertainty, frustration and despair.

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If one wishes to set a more determinate and manageable but still demanding task, then one should adopt the more constrained interpretation of the right to health. It is clear, on the view we have developed above, that global health policy cannot be exclusively responsive to the right to health. This is so even if attention is confined to human rights that further the interest in health, as opposed to merely placing constraints on how it may be furthered.

Other human rights are also extremely relevant, such as the rights to life, physical security, religious freedom, privacy, education, work, and so on.

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  6. The preceding discussion of the fallacy of radical inclusivity concerned mainly the individuation of the human right to health at an abstract level: the question of how it is to be distinguished from other human rights. But a deeper problem concerns the specification of its content, i.