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Friday, 24 April 2015

Lancet - Getting human rights right in global health policy


Volume 385, Issue 9978, 25 April–1 May 2015, Pages e42–e44
Viewpoint

Getting human rights right in global health policy


doi:10.1016/S0140-6736(14)61418-5
Get rights and content
Global health policy advocates have repeatedly called for a post-2015 development agenda in which global health policy goals are embedded in a human rights framework. This appeal echoes the insistence on the part of a wide range of agents—including the UN, non-governmental organisations, governments, and ordinary citizens—that human rights should be a fundamental basis for the new development goals in general.1, 2 and 3 Interpreted sympathetically, this emphasis on human rights embodies a vital insight into their distinctive moral significance. The adoption of goals concerned solely with the promotion of human welfare, such as our interests in health, prosperity, and education, is not sufficient. Human rights inject a distinctive moral dimension into policy objectives, and one that is especially responsive to the plight of victims of injustice worldwide.
Human rights are universal moral rights that all people possess merely by virtue of their humanity. They mark the threshold at which each individual person's interests generate obligations on the part of others to respect, protect, and promote those interests in various ways. The violation of an obligation is a moral wrong; however, by contrast, no wrong is committed by the mere impairment of another's interests or by leaving them unpromoted. For example, neither beating a rival applicant for a coveted job nor failing to give someone your spare healthy kidney for a transplant necessarily involves any wrongdoing. Human rights are a distinctive moral register of critical assessment, beyond evaluations that merely track rises and falls in welfare.4
A well-established doctrine of international human rights law now exists. However, the morality of human rights is independent of its legal recognition. Moreover, not even a presumptive case always exists for the enactment of human rights as (enforceable) legal entitlements.5 and 6 Law is just one mechanism of implementation that exists alongside others, including social conventions, public opinion, and the instillation of a rights-respecting ethos. Whether or not human rights should be legalised depends on what works in all circumstances. To make human rights legally enforceable can sometimes even be counter-productive. For example, in Brazil, the legalisation of the right to health seems to have led to a transfer of health resources to the wealthier people who can afford the cost of litigation.7
Although human rights are extremely important for global health policy, in this Viewpoint we contest two widespread assumptions about their significance. The first assumption—exclusivity—is that human rights should be the sole or exclusive basis of global health policy. The second assumption—inclusivity—is that insofar as human rights are relevant to global health policy, they are included within the right to health.8 and 9 Both exclusivity and inclusivity are, we believe, highly problematic assumptions. We cannot rely exclusively on human rights to develop global health policy; and to the extent that human rights are relevant, we cannot restrict ourselves to the right to health.

Questioning exclusivity

Imagine a world in which human rights were fully met. Could there nonetheless be serious health deficits in this world? The answer, it seems, is clearly “yes”. Consequently, global health policy must attend to more than human rights concerns.
One potential health deficit in a human rights utopia is a high prevalence of obesity arising from the readily avoidable failure of people to maintain a healthy diet and exercise regimen. Obesity can lead to severe health problems, but to assume that these are also necessarily human rights problems would be incorrect. Human rights are about how we treat others, not how we treat ourselves. In avoidably neglecting my health, I do not violate my own rights. However, by contrast, I might be exercising my rights when I freely engage in unhealthy activities, such as smoking or overeating, knowing the risks and having viable alternatives. Therefore, global health policy should be concerned with the reasons that people have to promote their own health, including their duties to do so, and not just with human rights.
There is another way in which serious health deficits might yet persist in a human rights utopia. There may be serious health needs that it would be unduly burdensome or intrusive to treat as generating human rights to their fulfilment. As an example, consider someone in dire need of a kidney transplant. Although being given a matching kidney would certainly promote this individual's health interests, it is very doubtful that they have a right to another person's healthy kidney, because their interest in a healthy kidney is insufficient, by itself, to impose an obligation upon another to provide it. Indeed, the right to bodily integrity prevents others from having a right to one's kidney. Another example is participation in clinical trials. The recruitment of sufficient numbers of trial participants in high-income countries is difficult, which in turn hampers valuable medical research. However, we should not suppose that a human right is being violated when people decide not to participate in clinical trials; instead, a more natural assumption is that there is a human right of non-participation in such trials.
Therefore, in addition to human rights, global health policy should also promote various health-related values, including common goods that cannot always be claimed to be a matter of individual rights. These common goods serve the interests of all people in a uniform way for each person, and do so without interpersonal tradeoffs of interests.10 They include the common good of a social ethos that both helps to maintain an adequate supply of organs for transplant and ensures sufficient participation in valuable health-related research. Cultivation of such a culture of compassion and participation goes beyond anything demanded by human rights but is of great significance for the promotion of health.
To clarify, our contention is not that obesity, organ donation, and research participation are devoid of a human rights dimension. Certainly, people have the right to access a healthy diet and also a right to treatment for obesity. However, obesity does not necessarily signify a violation of rights, as indicated by the fact that in developing countries this disorder is more prevalent in people of a higher socioeconomic status than in poorer people.11 Moreover, presumably human rights-based obligations exist to facilitate organ donation and research participation and to offer or undertake them without discrimination, exploitation, or excessive cost. However, even when we have complied fully with these demands, problems of obesity, insufficient organs for transplant, and low research participation rates might still persist. Therefore, more than just human rights will be necessary to guide health policy decisions.

Questioning inclusivity

Human rights exist when universal human interests generate obligations on others to respect, protect, and promote those interests in various ways. Most human rights are grounded in a plurality of interests, such as autonomy, health, knowledge, friendship, accomplishment, and play.12 This fact is also true of the human right to health: it not only serves our interest in health, but also various other interests that being healthy enables us to fulfil, such as forming friendships or achieving goals. All these interests help to justify the existence of a human right to health and to shape its associated obligations.
If we adopt an unduly expansive interpretation of health, we can erroneously think that the human right to health is grounded exclusively in our interest in health. Notoriously, this approach is just what WHO used in the preamble to its constitution, which states that “health is a state of complete physical, mental and social well-being and not merely the absence of disease and infirmity”.13 However, it has repeatedly been shown that this definition is far too broad; health is just one of several elements of wellbeing, not the whole of it.14
An additional important point is that although many human rights serve our interest in health, they are not necessarily aspects of the general human right to health. Drawing and building on the work of the Committee on Economic, Social and Cultural Rights, various constituencies treat the right to health as a highly inclusive right.15, 16 and 17 It supposedly includes rights to education, housing, employment, sex equality, and freedom from torture and other cruel, inhuman, or degrading punishment. Through a process parallel to WHO's expansion of the notion of health to include all human wellbeing, the inclusive view seems to incorporate within the human right to health all the rights that affect our interest in health.
The right to health could be distorted if it is made to encompass all other rights in the Universal Declaration of Human Rights with a bearing on health. The mistake is to identify the right to health with all the rights that serve our interest in health. Many, if not all, human rights protect our interest in health because they protect a range of interests that includes health as one among others. However, a human right is picked out not by the profile of interests it serves but rather by reference to the obligations it creates. The right to health is best interpreted as concerned primarily with obligations regarding medical services and public health measures. On this basis, for example, the rights to housing or to freedom from torture are not components of the right to health, even if their violation typically has a severe effect on health.
To draw clear lines between different human rights is not always easy. Sometimes the boundaries will be fuzzy and sometimes overlaps will occur. We will often need laws to draw sharper lines where these would be beneficial. However, our starting point needs to be different—we need to look at the obligations associated with a particular right, rather than the main interests it serves in order to isolate it among other rights.
The approach we advocate involves a substantial practical payoff. If we follow the inclusive account to the right to health, we will face an unnecessarily Herculean task in our attempts to assess the extent to which the right to health is being fulfilled worldwide. This task will be so huge because it will require keeping track of the extent to which all rights that affect health are being met. Progress towards such a massively sprawling goal is challenging to monitor and extremely difficult to achieve, and will inevitably breed uncertainty, frustration, and despair. If we wish to set ourselves a more meaningful and manageable, but still demanding, task then we should adopt the more constrained interpretation of the right to health.
Global health policy clearly cannot be exclusively responsive to the right to health, even if we just confine ourselves to human rights concerns that have a bearing on health. Other human rights are also very relevant, such as the rights to life, physical security, religious freedom, and privacy, among others, because these rights either also serve our interest in health, or they impose constraints on how that interest might be pursued, or both. The adoption of an inclusive interpretation of the right to health threatens to obscure the important independent role that these other rights have in modelling global health policy.

Conclusions

Human rights have a crucial role in shaping the objectives of global health policy. However, for them to do so appropriately, such policy must be pluralistic at two levels. It needs to be responsive to a range of distinct ethical concerns in addition to human rights, such as duties to oneself and to foster the common good. Moreover, when it comes to the category of human rights, global health policy needs to be attentive to many other human rights, rather than just the human right to health. By understanding human rights in this way, we can rescue them from the distortion that they are liable to undergo at the hands of some of their most fervent and influential advocates in global health.
We began this Viewpoint by referring to widespread calls to give the post-2015 development agenda a human rights focus. However, in July, 2014, the Open Working Group on Sustainable Development Goals issued an outcome document that makes very sparing use of the phrase “human rights”.18 Is this a major setback for the role of human rights in the development agenda, as some believe? Not necessarily. As argued above, human rights are only a part of that agenda and interact with other concerns, such as the common good. Human rights can therefore find a place when spelling out broadly specified goals, such as the Open Working Group's goal 3: to “ensure healthy lives and promote well-being for all ages”. Nonetheless, the conspicuous paucity of explicit references to human rights in the outcome document should prompt us to consider whether common misconceptions, such as those criticised in this Viewpoint, have diluted the power and appeal of the language of human rights.
Contributors
Both authors contributed equally.
Declaration of interests
We declare no competing interests.

References

    • 1
    • United Nations
    • The report of the high-level panel of eminent persons on the post-2015 development agenda. A new global partnership: eradicate poverty and transform economies through sustainable developmentUnited Nations, New York (2013)

    • 4
    • J Tasioulas
    • On the nature of human rights
    • G Ernst, J-C Heilinger (Eds.), The philosophy of human rights: contemporary controversies, Walter de Gruyter & Co, Berlin (2012), pp. 17–59

    • 8
    • LO Gostin, EA Friedman
    • Towards a Framework Convention on Global Health: a transformative agenda for global health justice
    • Yale J Health Policy Law Ethics, 13 (2013), pp. 1–75
    • View Record in Scopus
       | 
      Citing articles (3)
    • 10
    • J Raz
    • Rights and individual well-being
    • Ratio Juris, 5 (1997), pp. 127–142

    • 14
    • What is the special moral importance of health?
    • N Daniels (Ed.), Just health: meeting health needs fairly, Cambridge University Press, Cambridge (2008), p. 37

    • 17
    • Health and human rights: human dignity, global justice, and personal security
    • L Gostin (Ed.), Global health law, Harvard University Press, Cambridge, MA (2014), p. 257


Correspondence to: John Tasioulas, The Dickson Poon School of Law, King's College London, Somerset House, Strand, London WC2R 2LS, UK
Copyright © 2015 Elsevier Ltd. All rights reserved.
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Getting human rights right in global health policy

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