The place of the human right to health and contemporary approaches to global justice

The place of the human right to health and contemporary approaches to global justice

Some impertinent interrogations

Upendra Baxi

1 Prefatory remarks

All questions about human rights raise the familiar concerns regarding their origins (sources, whether human or transhuman), authorship (the debate over human rights as gifts of ‘West to the Rest’), reach (universality v. cultural specificity), nature/type (in terms of here-and-now enforceability and progressive realisation), limits (because no human right can claim any absoluteness, all human rights invite conflicting interpretations), scope (what obligation do rights cast and upon whom) and of the justice of rights (justification for prioritisation, hierarchies, and distribution of rights.) The human right to health (hereinafter, simply HRTH) talk constitutes no exception.

However, the HRTH talk is not excessively preoccupied with the first two sorts of concerns (origins and authorship). This may well also be true about kindred social and economic human rights enunciations (e.g. human rights to nutrition, literacy, shelter and housing, access to water as a resource and to water-based resources). In any event, as compared to talk about other kindred rights, HRTH talk seems to more adequately foreground a sustained engagement with the scope and justice dimensions in the sense explained above. The HRTH emerges primarily in contemporary theory in terms of healthcare justice (hereinafter HCJ). Its scope obligations extend, as with all contemporary social and economic human rights values, standards and norms, to State conduct; however, these also extend beyond the State to the realms of medical educational and research establishments, institutions and networks, and especially increasingly to global pharmaceutical industries, and to technologies of self-caring.

This latter deserves a word of explanation. The HCJ notions seek to combine two related but distinct ethical languages – the languages of ‘justice’ and of ‘care’– in a way that the talk about kindred human rights does not. I do not explicitly burden this chapter by revisiting the discourse illustrating the imponderables thus entailed – for example whether the languages of caring constitute, as it were, a world apart from the languages of contemporary human rights, or the ways in which some deep feminist thoughtways – from Carol Gilligan (1993) to Martha Nussbaum (2001) – exemplify the tension between the languages of justice and care. Nor does this chapter directly address aspects of causation of ill-health.

HCJ approaches accentuate the duties of self-care in a way that would seem scarcely appropriate for the related realms of social and economic human rights. It would be simply ethically intolerable to maintain that accessing human rights to nutrition, shelter/housing, literacy or access to water ought to remain predicated on the moral responsibility arising from duties of care to oneself; by contrast, public and institutional healthcare policy regimes that set limits to access to healthcare routinely thrive upon a full acknowledgement of such duties. Even when liable to the indictment of State, market, or legal paternalism, some priorities and limits remain fully set for those who torment their bodies via the ruination of liver through excessive alcoholism, of the lung from excessive smoking, of life-style induced health failures including exposure to communicable diseases, or the human brain via psychotropic and narcotic substances. While such persons may not be justifiably denied HCJ, they remain confronted with a lesser threshold weight for the provision of healthcare services. Further, and in terms of justice obligations, there is an understandable trend towards elevating HRTH as the most basic of all social and economic rights. A minimum of health remains necessary in order to have and enjoy these and other related human rights. Because physical and psychic impairments more deeply affect our right to be and to remain human, our ‘right to have rights’ (to adapt Hannah Arendt’s fecund notion (Arendt 1950)) requires us ‘to keep people functioning as closely to normal as possible’ (Daniels and Sabin 1997). What this may mean in terms of prioritisation or limit-setting – an institutional feature of most healthcare systems – or by ‘fair equality of opportunity,’ constitute vexed concerns but perhaps not to the point of denying the implicit ontological elevations of the HRTH discourses. Health (translated here as a modicum of well-being) is a sine qua non for accessibility, exercise and enjoyment of all other human rights. Put another way, one may not have all the human rights without first being alright.

The HRTH discourse maintains a rather difficult position between a basic human right to physical survival and the range of quality of life concerns. Conceptions of ‘health’ oscillate between ‘bare life’, directed to ensuring physical survival, and the conceptions of ‘good life’ that accentuate agency and choice. Conditions of bare life remain imposed, almost always violently by social and political structures and events.1 Impoverishment thus constitutes the regimes of planned global, regional and national policy-making that in the name of ‘development’ or ‘progress’ consign vast masses of human beings to forms of living death. Forms of biopower and biopolitics that thus systematically enact impoverishment ordain that the impoverished somehow cheat their ways into survival; here, as it were, ‘existence precedes essence’. Bare life is also produced by the insurgent or establishment practices of mass atrocity and politics of cruelty created by war or warlike events, which render entire populations hostages to the practices of ‘ethical violence.’ Think here of the paradigmatic events in Darfur and Sri Lanka, as well as the ‘war on terror’ situations. Situations of forced mass migrations, as well as mass disasters caused by multinational capital, archetypically signified by the Bhopal, Agent Orange and Ogoniland catastrophes, further constantly reinvent forms of bare life (Baxi 2004).

In contrast, the HRTH quality of life type discourse continues to invite attention to bare life somewhat differently in the contexts of human well-being that no presently available technology or therapy may ever fully provide. Under these conditions stands articulated a nascent human right to choose termination of an individual life via physician-assisted suicide: the right to a dignified death (Baxi 2009: 123–4). On another register, however, and for those who can afford it, ‘good life’ considerations emerge in terms of the newly emerging human right to genetic enhancement.2 All this now furnishes the multiple talks of the town and the gown celebrating new social epistemologies under the banner of bioethics. The HRTH discourse remains shot through with differential access to new technologies, with all their promises and perils (Brownsword 2008; Murphy 2009).3

While the extant HRTH and HCJ talkfurnishes some concrete markers for judging the legitimacy of governance decisions, or even structures, legitimacy as such (i.e. belief systems that justify political and legal domination) may still fall short of any adequate HCJ criteria (conceived in terms of fair distribution of healthcare opportunities and facilities). The latter invites consideration of a leading question a long while back in time, enunciated by St. Augustine: ‘What is a state without justice but a band of robbers?’ This question may further invite a rephrasing: ‘What are human rights bereft of justice but playthings of possessive individualism and the producers of designer policy goods in the global marketplace of policy prescriptions?’ Or would Augustine have indeed changed his mind, too, and stopped using the ‘J’ word altogether?

Had he chosen this last option, Augustine would have been in the distinguished company of some HRTH experts, including our eminent friend Professor Paul Hunt who has laboured so hard to produce a remarkable set of human-rights-based indicators for the protection and promotion of HRTH. Professor Hunt invites us to consider HRTH ‘… as a right to an effective and integrated health system, encompassing healthcare and the underlying determinants of health, which is responsive to national and local priorities, and accessible to all’ (UN 2006: 7).4 An ‘effective health system’ is now declared as a ‘core social institution no less than a court system or a political system’ (UN 2006: 7)

This most welcome conceptual reaffirmation of the notion of human right to a ‘system’ initially suggests – with John Rawls (1999) – that ‘justice’ is a virtue of the basic structures of social and political orderings; yet, overall, the Hunt Report remains focused on global social policy, rather than global justice. The distinction that I thus suggest is by no means an easy one, yet it remains crucial. Public or official policies provide platforms for executive and legislative action; at times, these also provide a basis for informed public criticism and for social action. It may even be agued that public policy regimes are necessary to advance the doing of justice, both in terms of some here-and-now transformations and as a long-run horizon for fashioning just healthcare futures. Yet, at the same moment, it also remains a global social fact that those who seek global healthcare policy may well keep a respectful distance from discourse concerning global health justice. This 14 Global Health and Human Rights may be so because: (a) it is no longer globally politically correct to talk about ‘justice’; (b) when general theories concerning justice address the tasks of justice (redistribution), they do so on a meta-ethical level that is least apposite to the languages of global social policy; and (c) the languages of justice in any event may often conflict with the HRTH languages. This chapter seeks to offer some partial, and tentative, responses to all these objections.

2 The ‘J’ word as politically incorrect

There is ample evidence, and not just in relation to HRTH, that it seems no longer politically correct to speak of ‘justice’ in the context of the normative/ institutional United Nations ‘system’ and related hegemonic ‘development’ discourses. Every effort is continually at play in avoiding the now dreaded ‘J’ word. This avoidance is marked by a diasporic dispersal of notions of justice via myriad phrase regimes such as: ‘sustainable development,’ ‘fair globalisation,’ ‘poverty alleviation,’ ‘the right to development,’ and now even the global social policy statements so insincere as the Millennial Development Goals and Strategies (Baxi 2006).5 I believe that recourse to the method of ‘content analysis’ (so often deployed in literature and media studies) will fully demonstrate the several ways in which the UN system hegemonic policy languages, authorise a full ouster of the ‘J’ word by non-governmental experts (whether in the UN human rights treatybodies or the guest artists who feature as Special Rapporteurs or even ad hoc independent experts).

Of course all the various ensembles of the United Nations beings speak about the issues of intra-, and inter- national inequity, structural exploitation, impoverishment and unequivocal duties of reasonable help to those who suffer. Yet, it remains true that neither the assemblages of governmental policy actors, nor the variously named independent experts, may afford the reflexive luxury of speaking to the tasks of justice. How may we understand this expulsion of the languages of justice?

Several explanations suggest themselves. First, ‘justice’ languages remain fraught with indeterminacy compared with policy and rights languages; second, some contemporary acts of justice-theorising do not yield any easy translation into acts of policy; third, and more crucial, because ‘justice is conflict’ (Hampshire 2000) – the ‘J’ word summons politics of passion and insurgent political action not always conducive to reasoned deliberation in aid of advancing the consensus on HRTH specific norms and standards; fourth, if alternate languages (such as those mentioned earlier) do equally well the task of exposing structural political injustices and ways of moving ahead, why should there be recourse to ‘justice’ notions?; and fifth, there is pragmatic value in relegating the uses of the ‘J’ word, which is then confined to the corridors of subaltern human rights discourses.

The dominant practitioners of subaltern HRTH discourses (those at least speaking on behalf of the worst-off humans, if not always at their behest) of course contest this indictment of relinquishment and relegation. Yet, it is scarcely the case that justice languages remain any the more ‘indeterminate’ compared with rights and policy languages. It remains also the case that justice languages often creatively prise open the mystifications produced by global policy languages, as indeed came to pass in the Doha Declaration (WTO 2001) that caveated the ‘hard’ patent regime for the intellectual/industrial property rights that functioned to protect multinational corporation (MNC) outpricing of access to antiretroviral drugs necessary to combat the HIV/AIDS pandemic. The Doha Declaration6 thus creatively disrupts via displays of some ‘fuzzy’ and ‘deviant’ logics (to here adapt Susan Haack’s ‘Phrase Regimes’)7 in ways that call the UN–WTO-constituted bluff. Sixth, subaltern critique also frequently suggests that the UN beings – these new epistemic HRTH communities – err egregiously when they feel constrained to celebrate some enormous systemic constraints that block action on behalf of the diseased and variously injured, unhealthy, starving and powerless peoples. Rather, it demonstrates that the languages of constraint are carefully crafted to avoid the justice–obligations owed to these peoples. Further, we now know (if any such demonstration were necessary in the first place) that ‘scarcity’ is a multiple function of misallocation of resources, the combined and uneven acts of a corrupt sovereign, and ‘developmental’ mal-governance.

True, the divide is now diminishing in a hyper-globalising posthuman era to a point when both sides practice some new incarnations of global practical reason, which enact the pragmatic motif of not making the ‘best’ the enemy of the ‘good.’ Subaltern HRTH activists seem to have little choice than to invoke fully the interpretive wonders ushered in by the relevant United Nations Human Rights Treaty Bodies exemplified by the normative regimes of the Committee on Economic and Social Rights General Comment 14 in relation to ‘the right to highest attainable standard of health’ (CESCR 2000).

The subaltern HRTH talk thus remains always an act of global political hope aimed at providing some secure niches for HRTH, by seeking to recast the conventional recourse to, and inflections arising from, the Kantian and post-Kantian theory of ‘imperfect obligations’ (Rainbolt 2000: 243). Positivist activist loyalties towards the excessively familiar affirmation of the State obligations to ‘respect, protect and fulfil’, and in turn of obligations to ‘facilitate, provide and promote’, the HRTH (CESCR 2000: Para 30) now remain fully offered to view indeed as the best ‘weapon for the weak’ and vulnerable. Even so, and with sincerest apologies for this heavy remark, the thus fully made available enunciative embarras de riches postpones the gains of learning immanent in metaphysical or post-metaphysical theories of, and about, justice that contest structurally imposed healthcare injustices.

3 The poverty of meta-justice theorising?

Much here depends on how one may privilege/de-privilege ‘meta-theory.’ Almost by definition, most general theories about ‘justice’ do not specifically engage all human rights norms and standards as we (meaning here international human rights lawpersons) know these. Meta-theory as, for example, ardent students of John Rawls (1999) and Jürgen Habermas (1990) know well, conceptualises basic liberties and human freedoms distinctively in terms of a thin, and parsimonious, listing of ‘primary’ moral ‘goods’. Neither, to the best of my knowledge and belief, remains fully concerned with HRTH as such. Nor do these have any specifically located range of concerns for the problem of healthcare inequalities and inequities, or the rights to water, food, shelter, housing and livelihood. Rather, they address some key conceptions such as ‘liberty,’ ‘equality’ and ‘fairness’ as the virtues, and ‘basic structure of a just society’ (to have recourse to the Rawlsian notion). The task is therefore one of translating meta-theory into specifically human rights regional approaches to justice, as providing a versatile range of conceptual frameworks and normative tools of immense help towards the realisation of some social and economic human rights. The superbly gifted corpus of Norman Daniels pursues this task of seeking to resituate John Rawls’ A Theory of Justice (1999), in the field of healthcare. Not many United Nations beings, however, remain persuaded by the demonstration of the truth of Daniels’ saying: ‘Justice is good for our health’ (Daniels et al. 1999).8

This worthwhile maxim, however, directs attention to HCJ as an affair of intranation HCJ tasks. The nascent approaches to global justice address, on the other hand, the justice-responsibilities of State and State-like actors (the international financial institutions, UN agencies, intergovernmental aid and development networks and the world economic regimes, such as the WTO). This chapter partially unfolds the importance of some of these new approaches to global justice, with the caveat that much considered work remains still needed. It is perhaps time to begin to pursue a rather difficult task concerning the clarification of relationships between justice theories and HRTH discourse. Of course, theory-aversion (the synergies of social movement and human rights activisms) that insists on the irrelevance

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