Global Health and Post-9/11 Human Rights

Chapter 7

Global Health and Post-9/11 Human Right

George J. Annas

After 9/11 it became fashionable to ask, at least in the arena of global health, if human rights had any special relevance anymore. This question is still being asked as the second year of the Obama administration approaches. The president picked Joseph O’Neill’s post-9/11 novel Netherland to read shortly after taking office. The novel’s narrator, Hans van den Broek, simply refuses to consider many of the questions raised by the attack and our response to it. In his words:

I found myself unable to contribute to conversations about the value of international law or the feasibility of producing a dirty bomb or the constitutional rights of imprisoned enemies or the efficacy of duct tape as a window sealant or the merits of vaccinating the American masses against smallpox or the complexity of weaponizing deadly bacteria or the menace of the neoconservative cabal in the Bush administration, or indeed any of the debates, each apparently vital, that raged everywhere—raged, because the debaters grew heated and angry and contemptuous … I had little interest. I didn’t really care. In short, I was a political-ethical idiot.

Hans is, of course, not the only one who has lost interest in these topics. Netherland has deservedly been blessed with gushing reviews and a presidential endorsement. Nonetheless, my own choice for pursuing a conversation about “the value of international law” in the context of global health is Falling Man. The conflicting perceptions of the value of international human rights are echoed in the decidedly mixed reviews Don DeLillo’s Falling Man, garnered. The novel (like human rights?) has been described by reviewers as “frustratingly disjointed,” “masterly polyphonic fizzling,” “a terrible disappointment,” “setting the standard,” and “a display of cumulative brilliance.” My own view is that the post-World War II human rights movement in general, and its much more recent health and human rights application to global health, sets the “standard” and even represents “a display of cumulative brilliance.”

DeLillo’s last great novel, Underworld, published in 1997, portrays the Cold War and its fallout as well as anything in fiction or nonfiction. Its cover, surely not meant to be purposely prophetic, pictures the twin towers on both the front and back (one a photo positive, the other a negative) with a church steeple and cross in front of them, and a bird of prey flying in their direction. The cover of Falling Man is self-consciously derivative. The front cover is illustrated by a blue sky as seen from above cloud cover; the back cover contains the same cloudscape with the twin towers breaking through. Both books are about our fear and confusion, followed by our death and decay, which we cover up—with more or less success—with consumption and by building massive monuments to ourselves. But Falling Man has more bite than Underworld, no doubt because of the fall of the towers. It is filled, as we are, with loss and self-destruction. Memory loss is its central obsession, but it is also filled with assorted ways and reasons to commit suicide in the midst of plenty. The main character of Falling Man, a survivor from the first tower, is almost universally described by reviewers as a shallow, middle-aged businessman (the typical American?). DeLillo describes his plight at the end of the novel (which ends where it begins, with the main character escaping from the tower, and observing what is happening): “He could not find himself in the things he saw and heard.”

Human rights advocates usually don’t have a hard time finding themselves, and their general quest is to change the things they see and hear. But they may see more blue sky than threatening clouds on the horizon, and may or may not have faded memories of the horrors of World War II that gave birth to modern human rights. Nonetheless, 9/11 changed the international human rights movement as well. Former Yale Law School Dean Harold Koh, for example, the leading human rights expert in the Obama administration, has perceptively identified four eras of human rights: (1) the Era of Universalism (1941–56), beginning with Roosevelt’s Four Freedoms speech (freedom of speech and religion, freedom from want and fear), and containing the founding of the United Nations and the adoption of the UDHR; (2) the Era of Institutionalization (1965–76) when the treaties were adopted and the institutional structures of human rights were formed, mostly at the UN; (3) the Era of Operationalization (1976–89), with the formation of national and regional human rights regimes, constitutional law applications, special reporters, and specialized nongovernmental organizations (NGOs); and finally (4) the Era of Globalization (1989–present). Koh divides the globalization of human rights into two periods: (1989–2001) the Age of Optimism, from the fall of the Berlin Wall to 9/11; and the Age of Pessimism from 9/11 to today.1 He delineated these eras before the election of Barack Obama, and there is at least the hope that the Obama presidency could mark a turning point in the Age of Pessimism concerning human rights. Nonetheless, reasons for continued pessimism abound.

The United States used 9/11 as a rationale to abandon not only our rhetorical role of global leader in human rights (always contested by some), but also to abandon human rights itself as a professed guide to our own actions, adopting methods we had consistently condemned since World War II, including preemptive war, torture, cruel and humiliating treatment, indefinite detention, disappearances, and grave breaches of the Geneva Conventions. We became a human rights outlaw in promoting the use of torture, and our country is no longer credible as a moral, or even rhetorical, leader in this arena.2

This is disheartening. But does it mean that it is also time to abandon the nascent health and human rights movement as a potential fundamental underpinning for global health? I think not. In spite of our recent disgraceful and illegal behavior in the human rights arena labeled “civil and political rights,” in the health portion of “economic, social, and cultural rights,” as Solly Benatar and Renee Fox have argued, “the United States is the country with the most potential for favorably influencing global health trends”3 (emphasis in original).

Health and Human Rights

Jonathan Mann is righty identified as the father of the (public) health and human rights movement. As he first noted, it is neither health nor human rights alone that provide the prospect of motivating a global public health movement, but the combination of health and human rights. Not only do negatives in one area exacerbate negatives in the other, positives in both amplify each other.4

World War II, arguably the first truly global war, led to a global acknowledgment of the universality of human rights and the responsibility of individuals and governments to promote them. Jonathan Mann also perceptively identified the HIV/AIDS epidemic as the first global epidemic because it is taking place at a time when the world is unified electronically and by swift transportation. Like World War II, this worldwide epidemic requires us to think in new ways and to develop effective methods to treat and prevent disease on a global level. Globalization is a mercantile and ecological fact; it is also a public health reality. The challenge facing medicine and public health, both before and after 9/11, is to develop a global language and a global strategy that can help to improve the health of all of the world’s citizens.

To address the HIV/AIDS epidemic it has been necessary to deal directly with a wide range of human rights issues, including discrimination, the rights of women, privacy, and informed consent, as well as education and access to healthcare. Although it is easy to recognize that population-based prevention is required to effectively address the HIV/AIDS epidemic on a global level (as well as, for example, tuberculosis, malaria, and tobacco-related illness), it has been much harder to articulate a global public health ethic, and public health itself has had an extraordinarily difficult time developing its own ethical language. Because of its universality and its emphasis on equality and human dignity, the language of human rights is well suited for public health.

Similarly, Paul Farmer has asked, “What can a focus on health bring to the struggle for human rights?” and answered, “A ‘health angle’ can promote a broader human rights agenda in unique ways.” Using the example of TB in Russian prisons, he noted that he and his colleagues would not have been invited in if they were seen as human rights workers. But as physicians with expertise in TB treatment, they were welcomed in the spirit of “pragmatic solidarity” which, Farmer noted, “may in the end lead to penal reform as well.”5

Health and human rights experts Sofia Gruskin and Daniel Tarantola have made it crystal clear that the health and human rights movement is based on the human rights movement itself, including the corpus of human rights law articulated in international human rights treaties. As such, primary obligations to respect, protect, and fulfill human rights, including the right to health, fall on the governments of those countries that have signed these treaties and have adopted their own domestic laws to operationalize them. Most fundamentally, human rights law is itself founded on the principle of nondiscrimination: All people everywhere should be treated equally.6 Women and children also merit special protection under the right to health, and their rights are also reinforced by specific treaties, the Convention on the Elimination of Discrimination Against Women (CEDAW), and the Convention on the Rights of the Child (CRC). Gruskin insists that human rights obligations are legal obligations that bind countries, and it is the legal dimension of the health and human rights field that distinguishes it from the more aspirational field of social justice.7

Gruskin is, I believe, quite correct. Nonetheless, as a public health advocate, she would likely agree that spending time mining for differences between the human rights and the social justice approaches, rather than seeking commonalities that can lead to public health action, is counterproductive. Human rights is action- and advocacy-oriented, characteristics that also commend it for global public health.

More than ten years ago I was asked to review a conference-generated book entitled Ethics, Equity, and Health for All. The 1997 conference was intended to develop an action plan to promote equity in health and was based on four principles for action: (1) take an inclusive approach to the governance of ethics and human rights in health; (2) give priority to the involvement of countries and groups that are underrepresented in ethics and human rights deliberations; (3) combine shorter- and longer-term efforts to incorporate ethical practice and respect for human rights in the applications of science and technology to health policy and practice; and (4) give priority to the development of human and institutional capacity to ensure sustainability of effort. These principles are reasonable, but the ultimate action plan suggested by the participants, perhaps unsurprisingly, was not. It called primarily for more work to “prepare working definitions of such key terms as ethics, equity, solidarity, [and] human rights, to take account of international … and cultural diversity.”

Writing this chapter on global health reminded me of the conference, as well as of my initial thoughts about it. Just as books often end by suggesting other books, so conferences have a tendency to end by suggesting more conferences. I wrote at the time:

Today it is worth asking again, Do we really need more conferences (or books?) to define equity, ethics, and human rights before engaging in advocacy and direct health action? I remain skeptical. I think we can conference and write ourselves and the would-be beneficiaries of direct public health action to death. On the other hand, it must be recognized, as Sudhir Anand, Fabienne Peter, and Amartya Sen have suggested in their Public Health, Ethics, and Equity, that “the commitment of public health to social justice and to health equity raises a series of ethical issues which, until recently, have received insufficient attention.”9 Their book however, has not satisfied everyone. Bioethicists Madison Powers and Ruth Faden, for example, suggest that we do need more conferences and books, when they argue that “the foundational moral justification for the social institution of public health is social justice,” and that “commentary on ethics and public health is, at best,~thin.”10 Nor is their view idiosyncratic.

Jennifer Ruger has argued that although “global health inequalities are wide and growing … [and] pose ethical challenges for the global health community … we lack a moral framework for dealing with them,” and suggests pursuing equality from a theory of justice.11 Elsewhere, Ruger has suggested that on the specific question of the human right to health, “One would be hard pressed to find a more controversial or nebulous human right than the ‘right to health’” (although she has also suggested that a philosophical justification for this right can be provided).12 Others, including physician-anthropologist and activist Jim Kim, president of Dartmouth College, has argued that the human rights approach to health disparities and inequality is more rhetoric than reality, akin to singing “Kumbaya.”13

It is easy to be cynical about or disenchanted with human rights. Law professor David Kennedy has catalogued the major critiques of human rights, noting that human rights can be legitimately critiqued for driving out other emancipatory possibilities, for framing problems and solutions too narrowly, for overgeneralizing and being unduly abstract, and for expressing a Western liberalism. Kennedy’s list continues: human rights promises more than it can deliver, the human rights bureaucracy is itself part of the problem— it can strengthen bad government, and it can be bad politics in particular contexts. In his words, “The generation that built the human rights movement focused its attention on the ways in which evil people in evil societies could be identified and restrained. More acute now is how good people, well-intentioned people in good societies, can go wrong, can entrench and support the very things they have learned to denounce. Answering this question requires a pragmatic reassessment of our most sacred humanitarian commitments, tactics and tools.”14

There is a measure of truth in all these observations, and effective action does require defined goals and specific actions to reach them. But as Joseph Kunz observed almost 60 years ago in regard the Universal Declaration of Human Rights, “In the field of human rights … it is necessary to avoid the Scylla of a pessimistic cynicism and the Charybdis of mere wishful thinking and superficial optimism.”15 No other language than rights language seems as suitable for global health advocacy. All people have (inherent) human rights by definition, and people with rights can demand change, not just beg for it. And rights matter-and will matter even more as judicial structures to enforce them, like the International Criminal Court, continue to be established and nourished. Values of course underlie rights, but it would be incomprehensible to adopt a “Bill of Values” rather than a “Bill of Rights” to protect people.

In the language of contemporary human rights, governments don’t simply have an obligation to act or not to act. Governments have obligations to respect the rights of the people themselves, to protect people in the exercise of their rights, and to promote and fulfill the rights of people. Of course, not all governments can immediately fulfill economic rights, like the right to health, because of financial constraints. International human rights law therefore provides that a government’s obligation can be defined as working toward the “progressive realization” of these rights within their resource constraints. Some countries are so limited in their resources that they require assistance from the world community. The novel but potentially powerful right to development speaks to the obligations of the world community to provide that assistance, as do the goals of the UN’s Millennium Declaration.

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