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date: 05 June 2020

Just Global Health: Integrating Human Rights and Common Goods

Abstract and Keywords

This chapter offers an integrated account of two strands of global health justice: health-related human rights and health-related common goods. After sketching a general understanding of the nature of human rights, it proceeds to explain both how individual human rights are to be individuated and the content of their associated obligations specified. With respect to both issues, the human right to health is taken as the primary illustration. It is argued that (1) the individuation of the right to health is fixed by reference to the subject matter of its corresponding obligations, and not by the interests it serves, and (2) the specification of the content of that right must be properly responsive to thresholds of possibility and burden. The chapter concludes by insisting that human rights cannot constitute the whole of global health justice and that, in addition, other considerations—including the promotion of health-related global public goods—should also shape such policy. Moreover, the relationship between human rights and common goods should not be conceived as mutually exclusive. On the contrary, there sometimes exists an individual right to some aspect of a common good, including a right to benefit from health-related common goods such as programs for securing herd immunity from diphtheria.

Keywords: global health justice, human rights, right to health, common good, global public good

What are the demands of justice that apply to global health policy? By global health policy we mean those practical measures, whether adopted and implemented by international organizations, states, corporations, or agents of some other kind, that have as their ultimate goal, in the words of the World Health Organization’s evocative motto, “health for all.” They are legal and other measures aimed at protecting and promoting the interest in health of every human being around the globe. In keeping with a long philosophical tradition, we deploy two distinct senses of the idea of justice. According to the first, justice concerns moral duties that are owed to and claimable by others as a matter of individual rights. In another, broader sense, justice concerns moral duties governing our conduct towards others, especially in so far as they fall within the proper remit of public decision-making.1 The second sense of justice, the domain of other-regarding moral duties, includes the first sense, the domain of justice as rights, as a component. But the second sense of justice also encompasses other moral duties, notably duties to preserve and promote the common good, which are not linked to rights.

Transposed to the global context, justice to a significant degree consists in the morality of individual human rights and global common goods. To this extent, a justice perspective on global health policy must be bifocal in character. However, we contend that it is a profound error, if nonetheless a common one, to construe the two strands of justice as being in an inherently dichotomous and generally antagonistic relationship. Not only do we need to draw on both human rights and common goods, but the “individualism” of human rights is not to be starkly juxtaposed with the “collectivism” of the common good. On the contrary, the securing of human rights is an integral component of some global common goods. This chapter seeks to make a start on elaborating the meaning and implications of such an integrated, bifocal perspective in relation to global health policy.2

(p. 140) We begin by outlining the distinctive character of human rights: they are moral rights possessed by all human beings simply in virtue of their humanity (Section 1). In light of its prominent role 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. Contrary to a popular, radically “inclusive” interpretation, we suggest characterizing the human right to health’s scope of concern primarily by reference to obligations regarding healthcare services and public health measures. 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 (Section 2). We then offer an account of how to specify the content of the human right to health, i.e. the content of the duties regarding healthcare services and public health measures associated with the right. The process of content-specification, we argue, involves the application of a threshold criterion that incorporates considerations of possibility and burden. In addition, we question the utility of three ideas that have been widely thought to provide essential guidance in specifying the content of human rights: that human rights secure “minimum conditions” of a decent life, that they protect their holders against “standard threats,” and that they are specified through decisions made in conformity with fair or democratic procedures (Section 3). In the Section 4, 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 health policy must be overwhelmingly 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.

1 Introducing Human Rights

Global health policy advocates have repeatedly called for a post-2015 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 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.—is not enough. 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.4 They mark the threshold at which each individual human being’s interests (p. 141) generate duties or 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; by contrast, no wrong is committed simply by thwarting another’s interests or leaving those interests unpromoted. 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 foregoing does not mean that well-being 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. Indeed, the discourse of human rights is at the core of a “global justice” approach to health: justice, on one historically influential interpretation, consists in the rights-involving part of morality, and the subcategory of human rights is those moral rights that are held globally because they are possessed by people simply in virtue of their humanity.

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.5 Moreover, in excess of two-thirds of national constitutions explicitly include health rights, often by incorporating provisions in international human rights treaties.6 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, in so far as it is appropriate to do so through the medium of universally held individual legal rights. 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 healthcare 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.7 But these differences between the two kinds of rights, which are largely matters of degree, rather than kind, do not warrant the wholesale expulsion of so-called “socioeconomic rights,” with positive primary duties, from the category of bona fide human rights.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 (p. 142) treaties—has introduced into thinking about human rights. 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.9 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.10 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 Guiding Principles on Business and Human Rights that were approved by the United Nations in 2011. The Principles seek to provide an authoritative specification of the human rights responsibilities that directly bind corporations irrespective of their legal obligations in the jurisdictions in which they operate.11

Finally, another a priori commitment we should resist 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.12 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. Whether, and to what extent, individual human rights should be enshrined in counterpart legal rights is a matter of what is inherently appropriate and works in all the circumstances, which is subject to considerable variation in time and place. Evidence exists that making human rights legally claimable is sometimes counterproductive. For example, in Brazil the constitutionalization of the right to health appears to have facilitated a transfer of health resources to the better-off who can afford the cost of litigation.13 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.14 To take another example, the economist Jeffrey Sachs (2012) one of the chief architects of the Millennium Development Goals (MDGs), has ascribed the success in meeting those goals partly to the fact that they were not legally binding on states. This lowered the cost of states publicly signing up to the goals in the first place, thereby enhancing the likelihood that they would do so. In short, the difficult and multifaceted 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.

2 Individuation and Inclusivity

Human rights arise when universal human interests generate obligations on others to respect, protect, and promote those interests in various ways. Interests are here understood (p. 143) as the elements of well-being, the realization of which in a person’s life make it a better life for them. We favor an objectivist and pluralistic account of the interests that ground human rights.15 They are interests we have independently of whether we actually desire their realization, and they are not limited to one kind of interest—the interest in autonomy, for example—or to one category of interests, such as those interests that qualify as basic needs.16 Instead, they comprise any of the genuinely universal human interests that 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.17

In contrast to some human rights advocates in global health policy,18 we resist characterizing the normative foundations of human rights exclusively in terms of capabilities rather than the more capacious notion of universal human interests. Capabilities, understood as the capacities to choose to realize various forms of valuable functioning in one’s life—such as to be educated, have friends, enjoy good health—seem an unduly restrictive basis for human rights in at least two ways. First, in relation to the scope of human rights: human beings who lack a capacity for choice, whether through immaturity, congenital defect, or illness, would become problematic as subjects of human rights. Yet a program of involuntary euthanasia targeted at those in an advanced stage of senile dementia arguably constitutes a paradigmatic human rights violation. Second, in relation to the content of human rights: many duties imposed by human rights are not concerned simply with the protection of a sphere of individual choice as to whether to realize a functioning or not, but with the protection of interests independently of choice. And this is so with respect not only to those whose agency is non-existent or impaired but even to fully mature agents. This is how we would normally understand the rights not to be enslaved, tortured, or murdered, which partly explains why we do not treat these rights as waivable at the discretion of their holders. So, in the case of the right to health, sometimes what is at issue is respecting people’s choices: enabling them to realize the functioning of good health by giving them the choice whether or not to undergo medical treatment, for example. On other occasions, such as the right to protection from an infectious disease, what may be called for is a program of vaccination that leaves little or no room for individual choice as to whether to realize the valuable functioning of immunity from the disease. This example illustrates a wider point: that some rights involve access to common goods, such as clean air or herd immunity, which, by their very nature, heavily constrain the possibility of individual opt-outs (see Section 4 below). In short, capabilities theory is undoubtedly a marked improvement on previous measures of social welfare, such as aggregate GNP. And capabilities will certainly figure prominently in articulating the moral significance of the interests recognized by a more pluralistic approach of the kind that we favor. But there is no compelling reason to limit from the very outset the human rights-generative considerations to capabilities.

(p. 144) The pluralistic theory of human rights claims not only that a plurality of interests are relevant to the justification of human rights generally, but also that typically any given individual human right is grounded in a plurality of interests, such as autonomy, health, knowledge, friendship, accomplishment, play, etc.19 The right not to be tortured, for example, is grounded not only in our interest in autonomy, but also in our interest in being free from pain and in being able to form intimate and trusting relationships. This is also true of the human right to health: it serves not only our interest in health, but also various other interests which enjoying good health can enable us to realize, such as making and sustaining friendships, acquiring understanding of the world around us, or accomplishing something with our lives. 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 the content of its associated obligations.

One way of falling into the trap of assuming that the human right to health is grounded exclusively in our interest in health is by adopting an unduly expansive interpretation of health. This is precisely what the WHO did in the preamble to its constitution, which notoriously states that “health is a state of complete physical, mental and social well-being and not merely the absence of disease and infirmity.”20 But, as has been repeatedly shown, this definition is far too broad. Health, on any remotely useful understanding, is one element of well-being 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 well-being. For the purposes of this chapter, we can 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 well-being, such as accomplishment and enjoyment. Moreover, they may even intelligibly put their health at risk in order better to achieve some other aspect of well-being, such as accomplishment or friendship.

There is a further crucial point worth making about the individuation of the human right to health. Although many familiar human rights serve our interest in health in all sorts of important ways, this does not automatically render these rights emanations of the general human right to health. Yet such an overly inclusive interpretation of the right to health has been propagated by the Committee on Economic, Social and Cultural Rights (2000), in its influential General Comment 14, as well as by other United Nations organs and leading global health scholars.22 So, for example, Lawrence Gostin (2014: 257) notes that General Comment 14 treats as “integral components of the right to health” entitlements to food, housing, life, education, privacy and access to information. Indeed, Gostin goes on to suggest that this specification is probably too “constrained” and should be widened to include “gender equality, employment, and social inclusion.” This inclusive approach is echoed, and perhaps taken even further, in a “Fact Sheet” on the Right to Health produced by the Office of the United Nations High Commissioner for Human Rights and the World Health Organization (2008: 3). (p. 145) 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. By a process parallel to the WHO’s inflation of the notion of health to embrace all of human well-being, such interpretations appear to absorb within the human right to health every right that bears positively on our interest in health. Indeed, on this radically “inclusive” approach, it is an open question, whether there is any right in the Universal Declaration of Human Rights, or in any of the two leading Conventions on Human Rights, which cannot be subsumed within the right to health, at least in so far as they involve duties that serve the right-holder’s interest in health. After all, a colorable 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 individuals’ health.

Now, something has clearly gone awry if we are lumbered with such a bloated interpretation of the human right to health.23 The mistake is to individuate the scope of the right simply by reference to whether a putative rights-based duty is justified in part by its service to our interest in health. Many—if not most—human rights serve our interest in health, and this is because they serve a multiplicity of interests, among which is health. Consider, for example, the fact that improvements in adult women’s education accounted for 40 percent of the reduction in mortality between 1960 and 1990, although the steps taken to enhance educational provision are not obviously “healthcare” measures.24 However, a human right is not picked out straightforwardly by the profile of interests it serves, we claim, but by reference to the subject matter of the obligations associated with it.

More specifically, our contention is that the right to health should be construed as principally ranging over obligations concerned with the provision of healthcare services by medical professionals and public health measures, such as sanitation, potable water, clean air, alcohol and tobacco control, and so on. On this view, there is a moderate sense in which the human right to health is an “inclusive” right. It “includes,” as justified implications, various more specific rights to healthcare or public health measures, such as a right to health insurance or measles vaccination. By contrast, however, many so-called “social determinants of health,” which are crucial in promoting the health of individuals, do not come under the right to health. Instead, determinants such as education, housing, employment, and a social environment free of gender and racial discrimination, in so far 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 the need to avoid excessive overlaps with other rights we feel compelled to recognize. But there is also a deeper rationale, which brings back the role of the interests served by the right in a more sophisticated manner. The question is whether or not the object to which one has a right serves the interest in health as its primary and direct objective, as in the case of clean air and water, or whether it does so indirectly, via the serving of other interests which are its primary goal, as in the case of education and employment. Healthcare services and public health measures satisfy this criterion, but the social determinants of health typically do not.

(p. 146) We 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 healthcare or public health measures.25 However, it is not always an uncomplicated matter to draw clear lines between different human rights. Sometimes the boundaries will be fuzzy, and there will occasionally be overlaps in the scopes of a given pair of rights. 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 fulfillment, of more than one human right. Often, we will need law to draw sharper lines between human rights that avoid overlaps 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. What we have suggested, instead, is that the starting point in delineating the human right to health is very different from that adopted by the radical “inclusive” view. We need to individuate that right 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 makes sense of 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 endeavor. It further caters to the idea that separating out distinct human rights is the best way of highlighting distinct normative concerns that might otherwise be obscured through conflation or subsumption. It is worth underlining a significant practical pay-off of the approach we advocate. If we follow the radically “inclusive” account to the right to health, we will face a needlessly Herculean task when assessing the extent to which the right to health is being fulfilled globally. This is because it will be necessary to keep track of the extent to which all health-enhancing rights are fulfilled. Progress towards such a massively sprawling goal is hard to monitor, and extremely difficult to achieve. This inevitably breeds uncertainty, frustration, and despair. In order to set ourselves a more determinate and manageable but still demanding target, we 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 we limit ourselves to human rights that serve our interest in health, as opposed to merely placing constraints on how we may serve it. Other human rights are also extremely relevant, such as the rights to life, physical security, religious freedom, privacy, education, work, and so on. Indeed, as noted earlier, if our main concern is with the promotion of health overall, securing a right such as that the right to education may be more important in some contexts than other healthcare related rights, such as the right to a minimum level of health insurance. Adopting a radically “inclusive” interpretation of the right to health threatens to obscure the vital independent role these other rights must play in shaping global health policy.

(p. 147) 3 Content Specification

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 was to be distinguished from other human rights. But a deeper problem concerns the specification of its normative content, i.e. the content of the obligations associated with that right, even after we have identified their general subject matter. This is a difficult and many-sided topic, and here it is only possible to offer a few comments. Recall that a human right exists when, in the case of each human being, universal human interests generate obligations on others to respect, protect, and promote those interests in various ways. Obligations, or duties, are categorical and exclusionary reasons for action, non-compliance with which is a pro tanto basis for assigning blame (on the part of others) and experiencing guilt or self-blame (on the part of the duty violator).

It is a challenging task to articulate, in a general way, the conditions that need to be satisfied for the threshold from interests to duties to be crossed. However, at least two dimensions of this threshold are worth highlighting: possibility and burden. Both go some way towards unpacking the familiar maxim “ought implies can.”26 On the one hand, an obligation will only arise when it is possible to comply with the counterpart duty in relation to all of the supposed right-holders. The impossibility that prevents a duty arising may be of different sorts, ranging from logical impossibility to practical impossibility given fixed conditions of contemporary life. Taking an illustration of the latter kind, there may be inadequate resources now or in the foreseeable future to fulfill a proposed right for each individual human being. This would rule out, on any literal reading, a human right to health that imposed a duty to secure for all “the highest attainable standard of physical and mental health.”27 Understood as an absolute standard, it is impossible to bring all human beings to this very high level of good health, irrespective of the vagaries of their personal history and genetic constitution. But this supposed right is also ruled out by a more complex reason, even if we relativize what is “attainable” to the personal history and genetic makeup of any given individual right-holder. This is the fact that the state of a right-holder’s health depends not only on what others do, but on decisions made by the right-holder themselves. It would seem that the relativized right would require unacceptable interventions in the right-holder’s life, interfering with and potentially overriding their own health-affecting choices on such matters as diet, exercise, leisure activities, occupational choice, and so on. This would thwart the autonomy interests of the right-holder in ways that would preclude such a duty from arising. The content of the right might then be further weakened, so that it creates, for example, a duty to afford access primarily to the highest attainable standard of physical and mental healthcare, rather than health itself. This may leave it largely to the discretion of the right-holder to decide whether or not to avail themselves of such care.

But even if a pro tanto case for such a demanding right to health could be made out, it will very likely be defeated once we factor in the second dimension of the threshold. This (p. 148) is the dimension of burdensomeness, which registers the costs of affirming the right in relation to the interests of duty-bearers, the fulfillment of other human rights, as well as other values, such as respect for non-human nature, to which we also properly subscribe. The right to health that arises from this process will, in all likelihood, be far less demanding than a right to the highest attainable standard of physical and mental healthcare, which is manifestly too costly. It is important to keep in mind, however, that “cost” here is not a simple function of the real-world market price of various medical services and public health measures. So, for example, we cannot simply take as given the market price that pharmaceutical companies, exploiting their market position and the rights afforded to them by existing regimes of intellectual property law, actually charge for their products. Equally, the cost cannot simply be a matter of the emotional strain and its consequences that compliance with the putative duty would entail, irrespective of the origin and nature of that strain. So, for example, the racist sentiments that make it “burdensome,” in some sense, for racists to conform with the rights of members of groups they despise do not bear on the question of whether members of those groups genuinely possess these rights. To take them into account would be to infect our thinking about which human rights exist with their deeply flawed beliefs about the relative moral standing of human beings. However, costs of both sorts might figure in deciding whether and how, all things considered, we should insist on compliance with the rights in question. This is especially so in virtue of the fact that we need not regard (all) human rights as absolute demands that are never overridden by competing considerations.

In navigating the perilous crossing from interests to rights we have made no reference to three ideas that have been widely invested with great importance in determining the content of human rights. The first is the idea that human rights in general secure certain “minimum conditions of a decent life.”28 The second is that human rights protect us against certain “standard threats” to our basic interests.29 The third is the central role of fair (and democratic) decision-making procedures in specifying the content of human rights obligations.30 We believe that the claims pressed on behalf of these ideas are generally exaggerated or misleading, where they are not straightforwardly false.

The main challenge that arises for the first idea is that of identifying the threshold of decent minimalism. At this juncture, a dilemma looms. Talk of a “decent minimum” may simply be a shorthand way of referring to the point at which the interests of each individual generate an obligation on the part of others. But this effectively recapitulates the threshold account we have previously sketched without adding anything substantively new. Alternatively, it may be that an independent standard for identifying the decent minimum is proposed, e.g. by reference to a notion such as basic needs. This generates a problem, even assuming a non-arbitrary independent standard has been elaborated. The problem arises in those cases where the basic interests satisfy the threshold but not this further minimalist condition. This leads to a potential dualism of universal moral rights, leaving the question why it is that only rights that satisfy the latter minimalist condition count as human rights proper. The question is simply accentuated if that condition presupposes, but goes beyond, the fulfillment of the threshold criterion (p. 149) introduced by the interest-based approach to human rights. On balance, it would seem preferable to grasp the first horn of this dilemma.

As for the common idea that human rights protect us against standard threats, skepticism centers on whether either term is a necessary condition for the existence of a human right. First, must there be a threat, in the sense of some possible event which, if it occurs, is likely to be significantly detrimental to the right-holder’s level of well-being? Certainly, some obligations corresponding to the human right to health protect us from threats so construed, e.g. the human right to vaccination against measles. But why should we exclude the possibility that human rights also impose obligations to provide us with opportunities to improve our level of well-being? For example, assuming costs are not excessive, there may be a human right to certain means of extending one’s life or enhancing the quality of one’s physical or mental functioning. If the response is that “threats” include the non-provision of something that could potentially benefit us, and perhaps which there is a duty to provide, then that locution is a misleading gloss on the threshold account. All this is compatible with the idea of “threat” playing an important role downstream from the issue of content specification, for example in establishing priorities among the demands of human rights. Thus, it may be that, other things being equal, duties to address threats to health generally take priority over duties to enhance it.

Now, leaving aside these qualms about “threat,” the reference to “standard” in the “standard threat” formulation has rather more going for it. However, it would be a mistake to construe it as a brutely statistical notion. Why should the fact that inhabitants in many parts of the world are highly unlikely to be at risk of contracting malaria prevent protection from malaria from figuring in the content of the human right to health? A preferable understanding of “standard” is that it refers to situations that are in some sense genuinely accessible for right-holders in the context of modern-day life, quite apart from the question of their statistical incidence. Exclusion of men from high-paying jobs simply on the grounds of their sex may be a highly non-standard occurrence, statistically; yet it satisfies the second, generic sense of “standard.”

This generic sense of “standard” leads us to the vexed question of how much “relativity” we should permit in the specification of the content of human rights standards across different cultures and societies. One kind of relativity, call it “parametric relativity,” is rather anodyne: it holds the level of protection of interests secured by a given human right constant across all right-holders, but allows that the specific means adopted to secure that invariant level of protection may vary from one society to another. The human right to adequate clothing may be satisfied in the tropics by means of access to shorts and T-shirts, whereas much warmer clothing, including a winter coat, would be required to meet the same standard of protection in Northern Europe. But some theorists have gone further, appealing to differences in resources, cultural standards, and the prevalence of health-related problems across cultures, in order to argue that the substantive level of protection afforded by human rights may vary depending on the social context inhabited by the right-holder.31 On this view, inhabitants of impoverished developing countries may have a human right to little more than rudimentary healthcare (p. 150) services, whilst those in the rich parts of the world would have a human right to very costly high-tech interventions.

This attempt to register the significance of inter-societal variation is understandable, but it has worrisome implications. On the basis of this view, for example, the level of protection afforded by the human right not to be killed or raped will presumably vary from one society to another, given differences in available resources for societal mechanisms and institutions concerned with deterring, apprehending, prosecuting, and punishing murderers and rapists. If we find this hard to countenance in the case of the human rights not to be killed or raped, why should the right to health be any different? Moreover, there is the fact that the differences in available resources across societies are not simply matters of brute fact, but are often the product of human decisions—to establish borders, to engage in colonial practices, to spend resources in one way rather than another, to adopt certain intellectual property regimes, to set the prices of drugs at certain levels, etc.—that should not be taken as simply given in determining what the content of human rights is, but instead must themselves be interrogated in the light of applicable moral standards.

These concerns suggest that we should construe the content of the right to health, so far as the level of protection it affords, invariantly across existing societies (but not necessarily invariantly across time).32 In doing so, however, we should keep in mind the following three points. First, local shortage of resources may sometimes justify the infringement of the human rights duty by the primary duty-bearers, which, let us assume, typically include the state. Of course, the state will come under consequent secondary obligations to take measures to rectify this situation in the longer term. Second, when a situation of this kind obtains, a third-party secondary duty may arise to help the state fulfill its primary duty or take other remedial action, a duty that may fall on other states, corporations, or international agents who possess the relevant capabilities. Finally, it is important to remember that not all the moral rights possessed by individuals are human rights. Some rights are possessed not in virtue of our humanity, but in virtue of our membership (e.g. citizenship or long-term residence) in a particular society. Hence, it may well be that people in wealthy countries have rights-based entitlements to levels of healthcare that greatly exceed those afforded by their human right to health. Acknowledging plural rights-based grounds for health-related entitlements makes it easier to accept an invariant reading of the content of the human right to health.

The specification of the content of the human right to health is evidently a formidably complex matter. In this domain, as in others, a fully adequate specification through pure moral reasoning is typically unavailable; instead, a workable standard must to a significant degree be the product of social decision-making, whether conventional or legal. This is especially so when we address difficult questions of priority-setting in the use of limited resources. Of course, any such specification through fiat must operate within tolerably determinate parameters set by moral reasoning.33 As an illustration of the potential “value added” that law and political practice can bring, consider the related notions of “progressive realization” and “minimum core obligations.” Both ideas are addressed to the time frame for complying with socioeconomic human rights. Unlike (p. 151) the civil and political human rights, those set out in the International Covenant on Economic, Social and Cultural Rights are subject to a doctrine of “progressive realization.” Given resource constraints, they need not all be fully complied with immediately; instead, according to Article 2(1), each state party is obligated “to take steps, individually and through international assistance and co-operation, especially economic and technical, to the maximum of its available resources, with a view to achieving progressively the full realization of the rights” in the Covenant (General Assembly of the United Nations 1966). The idea of “progressive realization” is meant to accommodate constraints on available resources, broadly construed, that prevent the immediate fulfillment of socioeconomic rights, such as the human right to health, by some states. However, in the practice of the UN’s Committee on Economic, Social and Cultural Rights an associated doctrine of “minimum core obligations” has arisen according to which certain components of the obligations associated with such rights must be complied with immediately.34 The “minimum core” is that part of a socioeconomic human right’s normative content that is not subject to the doctrine of “progressive realization” and so regarding which full compliance must be immediate, not deferred to the future. General Comment No.3 identifies “essential primary health care” as belonging to the minimum core of the human right to health.35 This distinction between obligations of immediate effect, on the one hand, and those that, although no less real, may be fulfilled over an extended period of time, has a long pedigree.36 Standards established through law and political practice can help us specify in a more determinate way the appropriate time frame for compliance with a human rights obligation. In this way, a doctrine such as that of “minimum core” obligations enables us to rebut the accusation made by some critics of human rights that, given the multiplicity of obligations imposed by human rights, it is always possible for a state plausibly to claim to be trading off the fulfillment of some human rights obligations against other such obligations.37

So far, we have spoken of supplementing pure moral reasoning through legal and political determinations operating within boundaries that it sets. However, some theorists go considerably further, responding to the problem of indeterminacy of content by appealing to a procedural-institutional criterion. On this view, the content of the human right to health will be largely fixed through institutions that conform to fair processes of (in particular, democratic) decision-making.38 Of course, the question of what counts as a fair or democratic procedure is itself a contested matter. Bracketing that important concern, it is still worth distinguishing at least two general roles that procedure may be being invoked to perform here.

The first is that of a reliable epistemic guide to the actual content of the human right to health. But, if so, we need independent reasons for believing that procedures of the relevant sort are more likely to lead to correct specifications of that right than other procedures, such as judicial review or executive directives. Perhaps some of these reasons will be found in general epistemic virtues typically possessed by democratic institutions, such as their inclusiveness regarding the range of interests and perspectives taken into account in law-making. However, it is doubtful that we can have confidence in a given decision-making process to specify the content of the right to health unless we have (p. 152) some prior, albeit incomplete grip on the content of that right, and on pain of circularity this grip cannot merely consist in the fact that the putative content was the outcome of that kind of process. In short, even granting its main premises, the epistemic appeal to procedure is by no means a comprehensive solution to the problem of content specification.

The second role decision-making procedures might perform is that of conferring legitimacy on any given legal specification of the right to health that it generates. Even if the content specified by law is not (obviously) correct as a matter of moral logic, that law may, nonetheless, be binding on its purported subjects in virtue, say, of its democratic pedigree. The first point to be made here is that the connection between procedure, including democratic procedures, and political legitimacy is not quite as straightforward as is often assumed. Contrary to a common view, it can be doubted whether democracy is generally either a necessary or a sufficient condition of legitimacy.39 But the second—and more salient—point for present purposes is that the appeal to legitimacy effectively changes the subject. We are no longer addressing the original question—what is the content of the human right to health?—but instead the different question: when is a law purporting to enact that right binding on its subjects? The latter question is certainly important, and it is also true that some of the indeterminacy surrounding the first question may be, as a practical matter, dispelled at the level of the second question. Nevertheless, in moving to the second question the focus has shifted from the requirements of justice to the legitimacy of law.

4 Justice as the Common Good

Imagine a world in which the human rights of all people were fully met. Could there yet be grave health deficits in this world? The answer, it seems, is clearly yes. It follows, at least presumptively, from this that global health policy must attend to more than securing people’s human rights.40 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. This could lead to severe health problems, but it would be strained to suppose they are also necessarily human rights problems. 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. On the contrary, I may be exercising my rights when I freely engage in unhealthy behavior, such as smoking, overeating, and avoiding exercise, being fully informed about the risks and having viable alternatives at my disposal. So, global health policy must be concerned with the reasons people have to promote their own health, including their duties to do so, and not just with human rights.

Another way health deficits might creep into a human rights utopia is if it is too demanding or intrusive for certain kinds of health-enhancing behavior to be claimable as a matter of individual right. Consider someone in dire need of a kidney transplant. Although being given a matching kidney would dramatically promote this person’s (p. 153) health interests, it is very doubtful that she has a right to another’s healthy kidney. This is because her interest in a kidney transplant is insufficient, by itself, to impose an obligation upon another to provide the organ for this purpose. Indeed, the right to bodily security stands in the way of others having a right to one’s kidney. Or consider participation in clinical trials. There are familiar difficulties in recruiting a sufficient number of trial participants in wealthier countries, something that in turn hampers the pursuit of valuable medical research. Yet we should not normally suppose that anyone’s human right is being violated when people refrain from participating in clinical trials; instead, it seems more natural to suppose that there is a human right of non-participation.

To clarify, our contention is not the manifestly false one that obesity, organ donation, and research participation are utterly devoid of any human rights dimension. Certainly, people have a human right to such things as access to a healthy diet and treatment for obesity. But the incidence of obesity does not necessarily betoken a rights-violation, something signaled by the fact that in the developing world it is a condition more prevalent among those of a higher socioeconomic status.41 Presumably, also, there are human rights-based obligations to facilitate organ donation and research participation and to offer or conduct them without discrimination, exploitation, or undue cost. But even when we have fully complied with these demands, problems of obesity, lack of organs for transplant, and low research participation may, nonetheless, persist. Consequently, more than just human rights will be required to guide health policy in formulating and addressing these problems.

Global health policy must, therefore, promote compliance with various health-related norms, including duties to oneself and duties of charity, that are not claimable as a matter of human rights. Now, in the remainder of this chapter, we wish to outline a further type of ethical consideration—common goods, in particular, global common goods—that should also have an important place in global health policy. By “common good” we do not mean aggregate social utility—the utilitarian notion of maximizing the aggregate welfare in society by means of a process of trading-off some people’s interests against those of others. Instead, according to a broadly Aristotelian interpretation, something qualifies as a common good if it serves the interests of all in a given community [universality], serves those interests in a uniform way for each person [uniformity], and does so in a non-rivalrous manner, i.e. the serving of anyone’s interests is not at the expense of serving any other’s [non-rivalrousness].42 A shared language in a given society, such as English, is a common good so understood. It serves the interests of all in that society in communication, it does so by furnishing all with a common means of communicating, and one person’s use of English in no way detracts from anyone else’s capacity to draw on that language. In the health context, we can recognize the common good of a social ethos that both helps maintain an adequate supply of organs for transplant and ensures sufficient participation in valuable health-related research. Cultivating such a culture of compassion and participation goes beyond anything demanded by human rights; yet it is of great significance for the promotion of the health of all. The second sense of justice, distinguished at the outset, prominently includes duties to promote common goods. Such goods must also be key concerns of global health policy.

(p. 154) The thrust of our argument so far has been that global health policy has to maintain a bifocal perspective in so far as justice is concerned: it has to be responsive both to human rights, including but not exclusively the right to health, and to global common goods that bear on health. Now, Gopal Sreenivasan (2012) has recently expressed skepticism about the global health policy significance of the human right to health. His claim is that, once we have common or public health goods in our sights, we will find that most of the requirements ordinarily thought to derive from the human right to health cannot be so understood. Instead, they belong to the category of public (or common) goods. The argument proceeds on the basis that rights and common goods are mutually exclusive so that “no individual can have a moral claim-right to any pure public good” (Sreenivasan (2012: 256). Let us accept the assertion that much that is claimed under the heading of human rights involves securing a common good. What justifies Sreenivasan’s contention that such claims therefore fail? In effect, his thesis is that the relevant threshold from interest to duty is not satisfied. In particular, an individual’s interest in a public good, taken in isolation from others’ interests in that good, never suffices to impose a duty on others to deliver it. To take his example: securing the common good of herd immunity to diphtheria through a program of vaccination involves the imposition of various burdens, not only the materials costs of the program, but also the “moral” costs of compelling people to submit to it. In Sreenivasan’s judgment, it is “very doubtful that a single individual’s health has the moral significance to underwrite either cost, let alone both” (Sreenivasan (2012: 257).43

Sreenivasan’s novel argument merits attention for at least two reasons. The first is that it forces us to clarify the interest-based approach to human rights in order to explain more fully how interests generate duties and how the ensuing rights are related to the common good. Second, and just as importantly, Sreenivasan’s argument highlights an ambivalence within contemporary global health policy, one starkly illustrated by Lawrence Gostin’s (2014) treatise on Global Health Law. Gostin is a prominent advocate of a human rights approach to global health, having taken the lead in calling for a global health framework convention grounded in the human right to health (Gostin (2014: 437–9). On the other hand, he also places great weight on public health measures and the social determinants of health, in contrast to medical services, partly on the grounds of their relatively superior preventive value (Gostin (2014: 419–28). But these considerations look like common goods, which may explain Gostin’s startling assertion, introduced without elaboration only fourteen pages shy of the conclusion of his treatise, that the right to health is not best seen as an individual right. Instead, he contends it is principally a “collective right” that requires the implementation of broader public health and societal measures that are preconditions for securing more specific, individual rights.44 The radical idea that the right to health is a group right seems to presuppose something like Sreenivasan’s thesis that there can be no individual right to a common good. But this takes us far away from the ordinary understanding of the human right to health, which is precisely that it is a right of individuals.

So, does Sreenivasan’s skepticism hold up? If his interpretation of when an individual’s interests suffice to generate a duty is correct, then his conclusion seems assured. After all, how could the health benefits of herd immunity for one individual, taken by (p. 155) themselves alone, justify the massive costs involved in instituting policies aimed at securing and maintaining herd immunity, such as compulsory vaccination? But our first indication that something is amiss here is that this pattern of argument generalizes alarmingly even to paradigmatic rights, such the right not to be tortured. How could the benefits to any given individual of the criminal justice apparatus aimed at the prevention, detection, and punishment of torture, taken by themselves alone, justify the massive costs of such a system? Indeed, it evidently follows that, on Sreenivasan’s approach, the morality of rights, including human rights, will justify far fewer entitlements than we ordinarily suppose that it does. This is a conclusion drawn with alacrity by Allen Buchanan (2013) in a book that deploys Sreenivasan’s insight across a broad range of standardly acknowledged human rights.45

Rather than take Sreenivasan’s argument to reveal the severe limitations of rights morality, however, we do better to treat it as resting on a questionable interpretation of the threshold criterion for the emergence of human rights. For, surely, no proponent of the interest-based view ever contemplated that the benefits to any single individual alone sufficed to impose a duty to create and maintain vastly expensive public goods, such as a criminal justice system. Now, one response to this problem is to find ways in which the interests of others than those of the right-holder can be made to do work in justifying the right to health, e.g. by pointing out that their interests are served through serving the interests of the right-holder. This is an avenue that has been explored by Joseph Raz (1997), a leading proponent of the interest-based approach to individual rights. However, we believe that although service to others’ interests may bear on the weight to be accorded to individual rights in practical deliberation, making them determinants of the very existence of those rights threatens to efface the distinction between the rights-based and non-rights-based parts of morality. Therefore, maneuvers of this kind should not be our first line of response.

Instead, we should simply reject the idea that on the interest-based account the individual right-holder’s interest must suffice to justify a duty to bear the whole costs of the relevant public-good securing system. This fails adequately to acknowledge the fact that the right-holder is just one among many enjoying the benefits of the system. Just as the right-holder does not enjoy all of the benefits of a public good system, so too the justification of his right does not entail that his notional portion of the benefits justify the entirety of the cost. Instead, our contention is that what needs to be justified is the right-holder’s share of the costs among other right-holders who also benefit from the system. Given that we are dealing with human rights, and a standardized profile of interests that abstracts from certain variations among individuals, this share will be notionally the same for all. This notional equality applies a fortiori with respect to public health measures, which are typically not targeted on individuals and produce highly dispersed benefits. So, the real question posed by the threshold criterion is: does the benefit to any given right-holder of herd immunity justify a proportionate share of the costs involved in a vaccination program aimed at securing it? The answer is much more plausibly in the affirmative than the answer to Sreenivasan’s question.

An immediate consequence of this view is that the relationship between human rights and common goods is not mutually exclusive. So, it is misleading for Sreenivasan to (p. 156) claim that individuals cannot have a moral claim-right to any pure public good. On the contrary, some aspects of the common good are rights-based, in the sense that they include elements to which we have a right; and what these rights confer is a right to benefit from the common good in question.46 Compare two common goods in an academic department: a culture in which plagiarism is scrupulously avoided and, on the very few occasions on which it occurs, it is justly condemned and punished, and a culture in which academics adopt a friendly, highly collegial attitude towards each other. Both kinds of culture are common goods, meeting the requirements of universality, uniformity, and non-rivalrousness. But arguably only the former is a common good that involves the securing of an individual right as part of its content. This is because the benefits to each individual of their participation in a culture of anti-plagiarism have the significance needed to ground in others duties to bear the proportionate share of the costs entailed in generating those benefits. Now, something similar can be said about two health related common goods: the common good of herd immunity from diphtheria and the common good of a vibrant leisure culture. Both facilitate the health of members of the relevant community, but it is really only in the first case that the benefits to the individual of participation plausibly ground a duty on others to undertake the proportionate share of the costs of sustaining the relevant common good.

5 Conclusion

Human rights have a vital role to play in global health policy. But more than human rights matter in the formulation of such policy, and in so far as human rights matter, more than just the human right to health matters. We should resist a normative monism in global health policy that operates only with human rights, or only with the human right to health in so far as it engages with human rights. Instead, it is also important to factor in other ethical considerations, such as health-related duties to oneself and duties to foster health-related common goods, as well as human rights other than the human right to health. Moreover, we need to plot the complex relations between human rights as they bear on global health policy, and between them and other aspects of the ethics of global health, resisting in particular the dogma that human rights and common goods are mutually exclusive and fundamentally antagonistic. 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. Still, we have only embarked on the early stages of a rescue mission. It is worth highlighting two of the many other topics that need to be addressed. The first is the ubiquitous problem of priority-setting in contexts of scarce health resources, a problem on which human rights have been thought to shed meager light.47 The second concerns the best means of giving embodiment and effect, through institutions, laws, and practices, to a just global health policy.48 The value of the approach outlined here will partly depend on whether it helps us to make progress with question such as these.

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Further Reading

Brownlee, Kimberley (2015) “Do We Have a Human Right to the Political Determinants of Health?” In Rowan Cruft, S. Matthew Liao, and Massimo Renzo (eds.), Philosophical Foundations of Human Rights. Oxford: Oxford University Press, 502–14.Find this resource:

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Mason Meier, Benjamin, and Lawrence O. Gostin (eds.) (2018) Human Rights in Global Health: Rights-Based Governance for a Globalizing World. Oxford: Oxford University Press.Find this resource:

Ruger, Jennifer Prah (2018) Global Health Justice and Governance. Oxford: Oxford University Press.Find this resource:

Tasioulas, John (2017) The Minimum Core of the Human Right to Health. Washington DC: World Bank, https://openknowledge.worldbank.org/handle/10986/29143, accessed August 14, 2019.

Tobin, John (2018) “Still Getting to Know You: Global Health Law and the Right to Health.” In Gian Luca Burci and Brigit Toebes (eds.), Research Handbook on Global Health Law. London: Edward Elgar Press, 56–81.Find this resource:

Venkatapuram, Sridhar (2011) Health Justice: An Argument from the Capabilities Approach. Cambridge: Polity Press.Find this resource:

Wolff, Jonathan (2015) “The Content of the Human Right to Health.” In Rowan Cruft, S. Matthew Liao, and Massimo Renzo (eds.), Philosophical Foundations of Human Rights. Oxford: Oxford University Press, 491–501.Find this resource:

Notes:

(1.) For these two senses of justice, see Finnis (2011: 161–4).

(2.) An important thrust of the human rights campaign in relation to the AIDS pandemic pioneered by Jonathan Mann was to reject “the prevailing view … that individual-centered human rights conflicted with community-oriented public health,” quoted in Gostin (2014: 245). This chapter aims to contribute to this attractive integrationist view by deepening its philosophical basis.

(3.) For example, Secretary General’s High-Level Panel of Eminent Persons on the Post-2015 Development Agenda (2013); United Nations High Commissioner for Human Rights (2013); and Amnesty International (2013).

(4.) For a general account of the nature of human rights relied on here, see Tasioulas (2012: 17–59). This paper offers a critique of rival “political” interpretations of the concept of a human right offered by Rawls (1999); Beitz ( 2009); and Raz (2010: 321–37).

(5.) For a fine study of the latter right, see Tobin (2012).

(6.) Gostin (2014: 263).

(7.) O’Neill (2000: chs. 6–8).

(8.) Tasioulas (2007: 75–101).

(9.) O’Neill (2001: 180–95); Tasioulas (2012).

(10.) Griffin (2008: ch. 5).

(11.) United Nations, Office of the High Commissioner for Human Rights (2011).

(12.) Sen (2006: 2913–27); Tasioulas (2012).

(13.) Ferraz (2009: 33–4).

(14.) This need not be an inevitable consequence of legalization; cf. the South African Constitutional Court’s decision in Soobramoney v. Minister of Health (Kwazulu-Natal) (1997), where it was held that provision of dialysis for a patient with chronic renal failure was not required by the constitutional right to health, partly because this would prejudice the satisfaction of other health needs that have to be met out of the state’s budget.

(15.) See Tasioulas (2015).

(16.) For agency and needs-based accounts of human rights, see Griffin (2008) and Miller (2007: ch. 7).

(17.) See Tasioulas (2013: 293–314).

(18.) e.g. Ruger (2010: ch. 5), following in the footsteps of the pioneering work on capabilities theory by Amartya Sen and Martha Nussbaum.

(19.) Tasioulas (2015).

(20.) World Health Organization (1948), preamble, https://www.who.int/governance/eb/who_constitution_en.pdf (accessed October 4, 2019).

(21.) Daniels (2008: 36–46).

(22.) Committee on Economic, Social and Cultural Rights (2000).

(23.) The upshot is so peculiar, one might wonder why radical inclusivism is so popular. Mindy Roseman has suggested (p.c.) that it is sometimes viewed as a way of upholding the credentials of the human right to health against those who are skeptical of “socioeconomic” human rights, by showing that it incorporates traditional civil and political rights. Whatever its efficacy at the level of rhetoric, however, this strategy offers no real defense of the positive primary duties associated with the right to health.

(24.) Wolff (2012b: 94).

(25.) For a similar interpretation of “the human right to health care,” see Buchanan and Hessler (2009: 205–6). However, the authors erroneously suppose that the human right to health exclusively reflects our interest in health (p. 206).

(26.) For a fuller account of the threshold, Tasioulas (2015).

(27.) General Assembly of the United Nations (1966: Art 12(1)), affirming “the right of everyone to the enjoyment of the highest attainable standard of physical and mental health.”

(28.) Nickel (2006: 36): “Human rights block common threats to a decent or minimally good life for human beings.” See also Miller (2007) and Buchanan (2014: 28–31) (the latter, however, articulates this as a notion that applies to those rights that ought to be enshrined in international human rights law, rather than to universal moral rights).

(29.) Shue (1996: 5): “a [moral] right involves a rationally justified demand for social guarantees against standard threats.” For an extension of this idea to human rights generally, see Beitz (2009: 109) and to the human right to health in particular, see Wolff (2012a: 222).

(30.) Gruskin and Daniels (2008: 1573–7) and Buchanan and Hessler (2009).

(31.) Dworkin (2011: 338); Buchanan and Hessler (2009).

(32.) For this synchronic, not diachronic, interpretation of universality, see Tasioulas (2012).

(33.) On the process of determinatio through which law gives specific content to objective moral requirements, see Finnis (2011: 284–9).

(34.) Committee on Economic, Social and Cultural Rights (1990: para.10).

(35.) In conformity with its generally maximalist approach to the right to health, General Comment 14, para 43(a)-(f) identifies a much more demanding minimum core, one that is not even satisfied by contemporary Western liberal democracies and, moreover, treats this demanding minimum core as non-derogable (Committee on Economic, Social and Cultural Rights 2000). We leave aside the question of the correct specification of the minimum core of the human right to health, save to express our sympathy with John Tobin’s assessment of General Comment No,14:

the vision of the minimum core obligations of states under the right to health, as advanced by the ESC Committee, is disassociated from the capacity of states to realize this vision. It simply does not offer a principled, practical, or coherent rationale which is sufficiently sensitive to the context in which the right to health must be operationalized.

(Tobin 2012: 240)

(36.) For example, Immanuel Kant draws a very similar distinction between those of his “Articles of a Perpetual Peace between States” that are “leges strictae,” requiring that “the abuses they prohibit should be abolished immediately” and those that are “leges latae,” which:

need not necessarily be executed at once, so long as their ultimate purpose … is not lost sight of. But their execution may not be put off to a non-existent date … for any delay is permitted only as a means of avoiding a premature implementation which might frustrate the whole purpose of the article.

(Kant 1991: 97)

(37.) “The dilemma for human rights enforcers is that they cannot demand that states comply with all rights perfectly, but if they do not, then they have no basis for criticizing a country’s decision to allocate more resources to satisfy one rather than another” Posner (2014: 92). Posner discusses the doctrine of “minimum core” (p. 88), but in our view dismisses its significance too quickly.

(38.) Norman Daniels (2011: 134), for example, has characterized the human right to health as “implying entitlements that individuals have to a socially relative array of services (in the case of healthcare) that is the outcome of a process of fair deliberation under reasonable resource constraints.” The point is developed with regard to priority setting in Gruskin and Daniels (2008: 1573–7). For the claim that democratic states should be largely exempted from the authority of international human rights institutions when it comes to specifying the content of the human right to health, at least with respect to their own citizens, see Buchanan and Hessler (2009).

(39.) Raz (2006: 1003–44).

(40.) The idea that global health policy should be exclusively grounded in human rights (and in the human right to health in particular), animates the proposal for a framework convention on global health advanced by Gostin et al. (2013: 790–3); Gostin and Friedman (2013: 1–75).

(41.) Dinsa, Goryakin, Fumagalli, and Suhrcke (2012: 1067–79).

(42.) Raz (1997: 127–42). Economists go further and add a condition of non-excludability, i.e. it is impossible to exclude others (cheaply) from enjoying public goods if they are provided at all; see the helpful discussion in O’Neill (2013). Although non-excludability is particularly relevant in addressing issues of self-interested incentives to contribute to the maintenance of a common good, we take as our focus the wider notion. As O’Neill shows, an emphasis on non-excludability makes it especially difficult to establish the existence of global common or public goods. Hence her suggestion that it is preferable to focus on goods with dispersed benefits, the weaker definition of public goods adopted in UNDP-sponsored Kaul, Grunberg, and Stern (1999).

(43.) This is Sreenivasan’s critique on the variant of the argument for a right to a public good that invokes an interest-based account of rights. He also has an argument against the possibility of a right to a public good on a will-based account of rights (see Sreenivasan 2012: 257–8). We find the latter persuasive, given the inconsistency of many public goods, e.g. herd immunity, with the comprehensive individual opt-outs (waivers of rights) that a will-based theory would require (see Sreenivasan 2012: 256–7).

(44.) See Gostin (2014: 426):

The right to health must be conceived primarily as a collective right, imposing obligations on governments, and in turn implicating all of society. There remains an important role for safeguarding individual rights and the rights of vulnerable groups, but the implementation of broader public health measures is a precondition for securing these more targeted rights.

(45.) Buchanan (2013: ch.2). The pay-off for Buchanan is that international human rights law, which contains these ambitious requirements, is not best understood as “mirroring” a background morality of human rights. For criticism, see Tasioulas (2017).

(46.) Finnis (2011: 210–18).

(47.) Arras and Fenton (2009: 27–38); and Weale (2012: 473–93).

(48.) Tobin (2012); Gostin (2014).