The human right to health in an age of market hegemony

The human right to health in an age of market hegemony

Paul O’Connell1

1 Introduction

Recognition that individuals and communities enjoy a human right to health has, progressively, come to be widely accepted at the international, regional and domestic levels. First with the post-Second World War consensus on human rights, and subsequently through the reinvigorated health and human rights movement, which emerged in response to the HIV/AIDS pandemics in the early 1990s, a consensus has emerged on the centrality of health as a basic human right and on the concomitant obligations of States to respect, protect and fulfil the various aspects of this most basic of rights (Gruskin and Tarantola 2005). Notwithstanding the widespread diffusion of the language of the right to health, the modern era of globalisation has been characterised by ‘bourgeoning health inequalities’ on many levels (Meier 2007: 545). This chapter seeks to contribute to explaining this disjuncture by problematising the relationship between the right to health and the economic, social and political doctrines that have characterised the era of globalisation. We begin by briefly highlighting some of the central principles of the right to health as recognised in international human rights law, before then going on to set out the current context within which the right to health is asserted through a discussion of the nature of contemporary globalisation, noting in particular the centrality of neo-liberal ideology and ‘market solutions’. Following this, we consider the tensions between the assertion of the right to health and the ‘common sense’ of market hegemony, before concluding that a substantive commitment to the right to health may very well require a conscious break with the logic of contemporary globalisation.

2 The human right to health

It was not until the twentieth century, following the atrocities of the Second World War, that the concept of human rights in general, and the right to health in particular, gained widespread institutional support. Two noteworthy milestones in the recognition of the right to health in international human rights law were the adoption of the Constitution of the World Health Organization (WHO) in 1946, which provides that the ‘enjoyment of the highest attainable standard of health is one of the fundamental rights of every human being without distinction of race, religion, political belief, economic or social condition’; and subsequently the Universal Declaration of Human Rights (UDHR) in 1948, Article 25 of which states that ‘everyone has the right to a standard of living adequate for the health and wellbeing of himself and his family, including food, clothing, housing and medical care’. These moral and aspirational obligations were subsequently transformed into binding legal norms with the adoption of the International Covenant on Economic, Social and Cultural Rights (ICESCR) in 1966. Article 12 of the ICESCR, which Gross calls ‘the foremost international legal document addressing the right to health’ (Gross 2007: 293), guarantees ‘the right of everyone to the enjoyment of the highest attainable standard of physical and mental health’. It also sets out an illustrative list of specific measures to be taken by States in order to achieve the full realisation of this right, the most pertinent for present purposes being the obligation on States to create the ‘conditions which would assure to all medical service and medical attention in the event of sickness’.

2.1 The right to health in general

It can be seen from this expansive statement that the ‘right to health is one of the most extensive and complex human rights in the international lexicon’ (Hunt 2007: 8), extending far beyond the provision of medical services to encompass, as it must, all of the underlying determinants of health. However, for the purposes of the discussion here, the focus will be limited to that aspect of the right to health which gives rise to an entitlement to healthcare, understood in its simplest terms as clinical and therapeutic measures that health professionals and medical systems provide for sick people.2 In what follows, we will examine how the normative content of this aspect of the right to health has been delineated at an international level, through the work of both the Committee on Economic, Social and Cultural Rights (CESCR), the body established to monitor compliance with the ICESCR, and the subsequent and supplementary work of the UN Special Rapporteur on the Right to Health. Particular attention will be given to the principles of non-discrimination and non-retrogression, both of which are central to the right to health.

At the outset, it should be said that the right to health, belonging to the class of socio-economic rights, has traditionally been one of the ‘poor cousins’ within the international human rights regime. One of the consequences of this historical dispensation is that the right to health, in common with most other socio-economic rights, suffers from a relative dearth of jurisprudence to clarify its nature and content. In order to overcome this deficiency as it relates to socio-economic rights in general, the CESCR has developed the practice of adopting ‘General Comments’ to clarify the normative character of the various rights guaranteed in the ICESCR. In relation to the right to health, the most important of these to date is General Comment 14, which represents ‘perhaps the most successful attempt to infuse concrete substance into the right to health’ (Gross 2007: 300), and which clarifies the normative character of the right to health under Article 12 ICESCR, setting guidelines on the nature of States’ obligations with respect to this right, and identifying potential violations of it. The principles established initially in General Comment 14 have subsequently been reinforced and otherwise elaborated upon by the work of the Special Rapporteur on the Right to Health.

After reaffirming the importance, in general terms, of the human right to health, General Comment 14 proceeds to delineate the normative content of the right to health under Article 12 ICESCR. First and foremost, the CESCR point out that the right to health does not amount to a right to be healthy per se, but instead entails a ‘right to the enjoyment of a variety of facilities, goods, services and conditions necessary for the realization of the highest attainable standard of health’ (UN-CESCR 2000: para 9). The right to health is then defined in expansive terms, encompassing an entitlement to, inter alia, safe, potable water and adequate sanitation, an adequate supply of food, nutrition and housing, as well as timely and appropriate healthcare (UN-CESCR 2000: para 11). Furthermore, all of these aspects of the right to health must comply with four essential criteria: availability, accessibility, acceptability and quality. Availability requires that functioning public health facilities, goods and services, as well as programmes, are available in sufficient quantity within the State. Acceptability means that all health facilities, goods and services must, inter alia, be ‘respectful of medical ethics and culturally appropriate’, while quality requires that all health facilities, goods and services are ‘scientifically and medically appropriate and of good quality’ (UN-CESCR 2000: para 12).

The requirement of accessibility is given the greatest attention in General Comment 14, and is also the most pertinent of the criteria for the purposes of the present discussion. In the context of the right to health, accessibility has four overlapping dimensions to it: (a) health facilities, goods and services ‘must be accessible to all, especially the most vulnerable or marginalized sections of the population, in law and in fact, without discrimination’; (b) health facilities, goods and services must be physically accessible, in the broadest sense of that term; (c) all health facilities must be economically accessible, in the sense that ‘[payment] for health-care services … has to be based on the principle of equity, ensuring that these services, whether privately or publicly provided, are affordable for all, including socially disadvantaged groups’; (d) the requirement of accessibility entails an element of information accessibility, encompassing ‘the right to seek, receive and impart information and ideas concerning health issues’ (UN-CESCR 2000: para 12).

2.2 The principles of non-discrimination and non-retrogression

Pursuant to Articles 2(2) and 3 ICESCR, the principle of non-discrimination is central to the normative character of the right to health under Article 12. The CESCR points out that:

In this context, the CESCR goes on to note that ‘[inappropriate] health resource allocation can lead to discrimination that may not be overt’ (UN-CESCR 2000: para 19). In this manner, the Committee acknowledges that de facto discrimination in access to healthcare services resulting from ostensibly benign policies can contravene the non-discrimination facet of the right to health under Article 12 ICESCR.

Having delineated the normative character of the right to health, the CESCR then considers the legal obligations placed on States in order to fulfil their obligations under the Covenant. The Committee first notes that the concept of progressive realisation, contained in Article 2(1) ICESCR, in no way diminishes States’ obligations with respect to the right to health; rather, ‘progressive realization means that States parties have a specific and continuing obligation to move as expeditiously and effectively as possible towards the full realisation of Article 12’ (UN-CESCR 2000: para 31). One consequence of this general obligation is that ‘any retrogressive measure taken in relation to the right to health’ is presumptively impermissible (UN-CESCR 2000: para 32). In relation to the more specific obligations placed on States, the CESCR, in common with its practice in relation to other rights, states that the right to health imposes three levels of obligation on States Parties: the obligations to respect, protect and fulfil. The CESCR further elaborates on this typology in the following terms:

The obligation to respect requires States to refrain from interfering directly or indirectly with the enjoyment of the right to health. The obligation to protect requires States to take measures that prevent third parties from interfering with article 12 guarantees. Finally, the obligation to fulfil requires States to adopt appropriate legislative, administrative, budgetary, judicial, promotional and other measures towards the full realization of the right to health.

(UN-CESCR 2000: para 33)

Interestingly, in further elaborating on the nature of States’ obligations, the CESCR points out that the obligation to protect the right to health requires States to, among other things, ensure that ‘privatization of the health sector does not constitute a threat to the availability, accessibility, acceptability or quality of health facilities’ (UN-CESCR 2000: para 35).

The CESCR then sets out certain ‘core obligations’ of the right to health, which are subject neither to the idea of progressive realisation nor to resource constraints; the most important of which, for present purposes, is the obligation on States to ‘ensure the right of access to health facilities, goods and services on a non-discriminatory basis, especially for vulnerable and marginalized groups’ (UN-CESCR 2000: para 43). Having established the normative character of the right to health and States’ obligations concomitant thereto, the CESCR provides an illustrative list of potential violations that emerge from the interaction of the two. The most important examples given, at least in so far as the present discussion is concerned, are; (a) that a denial of access to health facilities, goods or services to particular individuals or groups resulting from either de jure or de facto discrimination will constitute a violation of the ICESCR (UN-CESCR 2000: para 50); and that (b) ‘insufficient expenditure or misallocation of public resources which results in the non-enjoyment of the right to health by individuals or groups, particularly the vulnerable or marginalized’, will also be considered a violation of the Covenant (UN-CESCR 2000: para 52). These last two examples capture the ideas of non-discrimination and non-retrogression, and emphasise their centrality to the right to health.

The Special Rapporteur picks up on the various key points developed by the CESCR; in particular, the centrality of the principle of non-discrimination permeates all of the Special Rapporteur’s reports. Indeed, in his first report he notes that ‘[n]on-discrimination and equal treatment are among the most crucial components of the right to health’, and as a consequence, ‘international human rights law proscribes any discrimination in access to healthcare [on] prohibited grounds … which has the intention or effect of impairing the equal enjoyment of the right to health’ (Hunt 2003: 8). Later in the same report, he notes that the States’ obligations to ensure access, without discrimination, to all health facilities, goods and services is of increased relevance in the case of ‘the most vulnerable [and] marginalized sections of the populations’. In a subsequent report, the Special Rapporteur argues that the very essence of the right to health is ‘an effective and integrated health system’, which ‘must be accessible to all, not just the wealthy but also those living in poverty’ (Hunt 2006: 5). Also in his most recent report, the Special Rapporteur stresses that equality and non-discrimination ‘are among the most fundamental elements of international human rights, including the [right to health]’ and that ensuring equal and non-discriminatory access to healthcare services, with a proverbial preferential option for the socially excluded, is one of the core obligations imposed on States (Hunt 2008: 11, 14).

In similar terms to the CESCR, the Special Rapporteur also stresses the importance of the principle of non-retrogression with respect to the right to health. In particular, in his most recent report he notes that:

[An] … implication arising from progressive realization is that at least the present level of enjoyment of the [right to health] must be maintained. This is sometimes known as the principle of non-retrogression. Although rebuttable in certain limited circumstances, there is a strong presumption that measures lowering the present enjoyment of the right to health are impermissible.

(Hunt 2008: 14)

It can therefore be seen, from both the work of the CESCR and the Special Rapporteur, that the principles of non-discrimination and non-retrogression are central elements of the international human right to health. In the next section, we will digress slightly to spell out the context of neo-liberal global hegemony, before then going on to consider the extent to which the principles and policies characteristic of the era of globalisation impact on individual and community enjoyment of the right to health.

3 The triumph of ‘the market’

The last quarter of the twentieth century and the early years of this century were defined, in many respects, as the era of globalisation (Held and McGrew 2002). The language of globalisation was (and remains) ubiquitous, with a concomitant burgeoning of scholarly literature and increased public consciousness of the term. Without delving too deeply into the ongoing debates and controversies about the precise nature, contours and definitions of globalisation here, it will be accepted, arguendo, that the current era of globalisation has been, first and foremost, an era of neo-liberal global hegemony. The point is made cogently by Jan Aart Scholte, who notes that:

Neoliberalism has generally prevailed as the reigning policy framework in contemporary globalization … Most governments … have promoted neoliberal policies towards globalization, especially since the early 1980s … agencies such as the IMF, the WTO and the [OECD] have continually linked globalization with liberalization. Champions of neoliberal globalization have also abounded in commercial circles, particularly in the financial markets and among managers of transborder firms. Business associations like the International Organization of Employers and the World Economic Forum … have likewise figured as bastions of neo-liberalism. In the mass-media, major business-orientated newspapers … have generally supported neoliberalism. In academic quarters, mainstream economists have extolled the virtues of global free markets … Given this widespread hold on centres of power, neoliberalism has generally ranked as policy orthodoxy in respect of globalization. Indeed in the late twentieth century neoliberal ideas gained widespread unquestioned acceptance as ‘commonsense’

(Scholte 2005: 39)

In light of this assessment, we can say that, in truth, the age of globalisation is better understood as being an age of market hegemony: an era in which all of the governments of the world, whether through ideological commitment or under the pressures of market discipline, embraced and implemented orthodox neo-liberal policy prescriptions (O’Connell 2007). With this understanding, we can now fruitfully move on to look at the impact of neo-liberal hegemony on the right to health; however, before that we will take the time to spell out what we mean by neo-liberalism, and what has contributed to it emerging as the ‘common sense’ world view over the last quarter century.

Neo-liberalism is a multifaceted phenomenon, constituting an ideological world view, a set of policy prescriptions and, most fundamentally, a political project, which privileges the economic interests of small, economically powerful sections of society, both domestically and globally. As a political project, it is essential to stress that the ascendancy of neo-liberal common sense was not, as is often implied, a natural and neutral phenomenon. Rather, it was the result of an inherently political project, as Leys notes:

Globalisation was … a political project to defeat ‘socialism’. Both the US and the British economies had experienced slow growth and declining international competitiveness in the 1960s. In both countries politics became polarised, between defenders of the post-war ‘settlement’ … in which the state played the role of both manager of the economy and provider of social services and social security … and those who feared that private capital risked losing its power and authority. One side of the successful campaign to roll back socialism … was to attack its domestic base in the labour movements through anti-union measures and higher unemployment, privatisation and reduced taxes on capital. The other side was to end controls over capital movements and reduce trade barriers, exposing the domestic workforce to competition from lower-paid workers in countries with weaker regulatory regimes – at the same time making it hard, if not impossible, for any future government to reverse these changes. The result of capital mobility was this the rapid formation of a global economy that quickly generated market forces which impinged on national states and governments much more powerfully, and led to domestic deregulation in response.

(Leys 2001: 12)

Thus the era of globalisation, or in truth the era of neo-liberal market hegemony, has fundamentally been a project to both increase profit rates for capital and to assert the class power of the owners of capital (Harvey 2005).

At the level of ideology, neo-liberalism espouses a hard-edged interpretation of the classic laissez-faire thinking of figures such as Hobbes, Locke and Adam Smith, rebottled for the twentieth century by Hayek, Nozick, Friedman and others (Macpherson 1987; Hayek 1986; Nozick 2001). This world view holds that the centre of the moral universe is the rational, self-centred, utility-maximising individual; an individual who asks nothing of society and seeks nothing in return. From this vantage point, the collectivity of organised society and the State are necessary evils and should be ordered so as to impinge as little as possible on the autonomy of the individual. The State should protect the institution of private property, put in place the necessary framework for the operation of a free-market economy, and punish transgressions against private property; other than these limited roles, the State’s functions should be strictly circumscribed (Harvey 2005: 64–7).

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