What are some of the main problems with the US Healthcare system? What are some of the main problems with the US Healthcare system?
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Min 250 words, Max 500 words The place of human rights and the common good
in global health policy
John Tasioulas1 • Effy Vayena2
Published online: 1 August 2016
� The Author(s) 2016. This article is published with open access at Springerlink.com
Abstract This article 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
article 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 indi-
vidual right to some aspect of a common good, including a right to benefit from
health-related common goods such as programmes for securing herd immunity from
diphtheria.
Keywords Global health � Justice � Human rights � Right to health � Common
goods � Public health
& John Tasioulas
john.tasioulas@kcl.ac.uk
Effy Vayena
effy.vayena@uzh.ch
1
Dickson Poon School of Law, King’s College London, Somerset House East Wing,
London WC2R 2LS, UK
2
Epidemiology, Biostatistics and Prevention Institute, University of Zurich, Hirschengraben 84,
8001 Zurich, Switzerland
123
Theor Med Bioeth (2016) 37:365–382
DOI 10.1007/s11017-016-9372-x
Content courtesy of Springer Nature, terms of use apply. Rights reserved.
What are the demands of justice applicable 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 insofar 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 it also includes
other moral duties, notably duties to preserve and promote the common good that
may not be 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 also 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 against the
‘collectivism’ of the common good. On the contrary, human rights are an integral
component of some global common goods. This article seeks to make a start on
elaborating the meaning and implications of such an integrated, bifocal perspective
in relation to global health policy.
2
We begin, in the first section, by outlining the distinctive character of human
rights: they are moral rights possessed by all human beings simply in virtue of their
humanity. Then, in light of the prominent role of human rights 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 health care 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. 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 health
care 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 the fourth section, we
1
For these two senses of justice, see Finnis’s discussion [1].
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’ [2, p. 245]. This article aims to contribute to this attractive
integrationist view by deepening its philosophical basis.
366 J. Tasioulas, E. Vayena
123
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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 policy must be
predominantly 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.
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 [3–5]. 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.
3
They mark the threshold at which each individual human being’s
interests generate duties or obligations (we use these terms interchangeably) on the
part of others to respect, protect, and promote those interests in various ways. The
violation of an obligation is a moral wrong, whereas 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 wellbeing 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 sub-category of human rights are those moral
rights that are held globally because they are possessed by people simply in virtue of
their humanity.
3
For a general account of the nature of human rights relied on here, see [6]. This article offers a critique
of rival, ‘political’, interpretations of the concept of a human right offered by John Rawls, Charles Beitz,
and Joseph Raz.
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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.
4
Moreover, in
excess of two-thirds of national constitutions explicitly include health rights, often
by incorporating provisions in international human rights treaties [2, p. 263]. 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, insofar as it is appropriate to do so. 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 health care 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 [8]. But these differences between the two kinds
of rights, which are largely matters of degree, do not warrant the wholesale
expulsion of so-called ‘socio-economic rights’, with positive primary duties, from
the category of bona fide human rights [9].
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 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 [6, 10]. 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 [11]. 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 UN
Guiding Principles on Business and Human Rights, which seek to provide an
authoritative specification of the human rights responsibilities directly applicable to
corporations [12].
4
For a fine study of the human right to health, see [7].
368 J. Tasioulas, E. Vayena
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Finally, another a priori commitment to be resisted 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 [6, 13]. 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. As Sen has stressed, whether and to what
extent individual human rights should be enshrined in counterpart legal rights are a
matter of what is inherently appropriate and works in all the circumstances, which is
subject to considerable variation in time and place. Experience shows that making
human rights legally claimable is sometimes counter-productive. For example, in
Brazil the constitutionalization of the right to health appears to have facilitated a
transfer of health resources to wealthier members of society who can afford the cost
of litigation [14]. 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.
5
To take another example,
the economist Jeffrey Sachs, one of the chief architects of the Millennium
Development Goals (MDSs), has ascribed the success in meeting those goals partly
to the fact that states are not legally bound by them. This lowered the cost of states
publicly signing up to the goals in the first place, enhancing the likelihood that they
would do so [16]. In short, the difficult and multi-faceted 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.
Individuation and inclusivity
Human rights exist insofar as universal human interests generate obligations on
others to respect, protect, and promote those interests in various ways. Interests are
here understood as the elements of wellbeing, the realization of which in a person’s
life make it a better life for them. We favour an objectivist and pluralistic account of
the interests that ground human rights [17]. They are interests human beings possess
independently of whether they actually desire their realization, and they are not
limited to one kind of interest—autonomy, for example—or to one category of
interests, such as those interests that qualify as basic needs [18]. Instead, a plurality
of genuinely universal human interests 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
5
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].
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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.
6
The pluralistic theory of human rights claims not only that a plurality of interests
is relevant to the justification of human rights generally but also that any given
individual human right is typically grounded in a plurality of interests, such as
autonomy, health, knowledge, friendship, accomplishment, play, etc. [17]. The right
not to be tortured, for example, is grounded not only in one’s interest in autonomy
but also in one’s 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 one’s interest in health but also various other interests that enjoying good
health can enable one to realize, such as making friends, acquiring understanding, or
accomplishing something with one’s life. 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 its associated obligations.
One way to fall into the trap of assuming that the human right to health is
grounded exclusively in our interest in health is to adopt 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 wellbeing 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 wellbeing. For the
purposes of this article, we 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 wellbeing,
such as accomplishment and enjoyment. Moreover, they may even reasonably put
their health at risk in order better to achieve some other aspect of wellbeing.
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 them
components of the general human right to health. Yet, such an overly inclusive
interpretation of the right to health has been advocated by the Committee on
Economic, Social, and Cultural Rights, in its influential General Comment 14, as
well as by other UN organs and leading global health scholars [22]. So, for example,
Gostin 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. Gostin himself suggests that this specification is probably too
‘constrained’ and should be widened to include ‘gender equality, employment,
and social inclusion’ [2, p. 257]. This inclusive approach is echoed, and perhaps
taken even further, in a ‘Fact Sheet’ on the right to health jointly produced by the
WHO and the Office of the UN High Commissioner for Human Rights. According
6
For agency and needs-based accounts of human rights, see [11, 19].
370 J. Tasioulas, E. Vayena
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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 [23, p. 3]. 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 all the rights that
bear 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 insofar as they
involve duties that serve the right-holder’s interest in health. After all, a colourable
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 health.
Now, something is clearly awry if the human right to health is lumbered with
such a bloated interpretation.
7
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
whether it serves a person’s interest in health. Many, if not most, human rights serve
a person’s interest in health, and this is because they serve a multiplicity of interests,
including health. Consider, for example, the fact that improvements in adult
women’s education accounted for 40 % of the reduction in mortality between 1960
and 1990, although the steps taken to enhance educational provision are not
obviously ‘health care’ measures [24, p. 94]. However, a human right is not picked
out straightforwardly by the profile of interests it serves but, we claim, by reference
to the subject matter of the obligations it generates.
More specifically, our suggestion is that the right to health should be construed as
principally ranging over obligations concerned with the provision of health care
services by medical professionals and public health measures, such as sanitation,
potable water, clean air, alcohol, 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 components, various more specific rights to health care 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—insofar 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 avoiding excessive overlaps
with other rights there is good reason to recognise as distinct rights. But there is also
a deeper rationale, which brings back the role of the interests served by the right in a
more sophisticated manner. This is whether or not the object to which one has a
right serves one’s interest in health as its primary and direct objective, as in the case
7
The upshot is so peculiar that one might wonder why radical inclusivism is so popular. Mindy Roseman
has suggested (in conversation) that it is sometimes viewed as a way of upholding the credentials of the
human right to health against those who are sceptical of ‘socio-economic’ 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 defence of the positive primary duties associated with the right to health.
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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.
Health care services and public health measures satisfy this criterion, but the social
determinants of health typically do not.
One 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 health
care or public health measures.
8
However, it is not always straightforward to draw
clear lines between different human rights. Sometimes the boundaries will be
blurred, and there will occasionally be tolerable overlaps in the scopes 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 fulfilment, of more than one human right. Often, laws will need to
draw sharp lines between human rights so that overlaps can be avoided, 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 has to be different from that
adopted by the radical ‘inclusive’ view. That right, like all others, needs to be
individuated 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 underwrites 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 endeavour. It further caters to the idea that
separating out various human rights is the best way of highlighting distinct
normative concerns that might otherwise be obscured. It is worth underlining a
significant practical pay-off of the approach we advocate. If one follows the
radically ‘inclusive’ account to the right to health, then one faces a needlessly
Herculean task when assessing the extent to which the right to health is being
fulfilled globally. This is because the extent to which all health-enhancing rights are
fulfilled will then need to be tracked. Progress towards such a massively sprawling
goal is hard to monitor, and extremely difficult to achieve. This inevitably breeds
uncertainty, frustration and despair. If one wishes to set a more determinate and
manageable but still demanding task, then one 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 attention is
confined to human rights that further the interest in health, as opposed to merely
placing constraints on how it may be furthered. Other human rights are also
extremely relevant, such as the rights to life, physical security, religious freedom,
8
For a similar interpretation of ‘the human right to health care’, see [25, pp. 205–206]. However, the
authors erroneously suppose that the human right to health exclusively reflects our interest in health [25,
p. 206].
372 J. Tasioulas, E. Vayena
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privacy, education, work, and so on. Indeed, as noted earlier, if one’s main concern
is with the promotion of health overall, securing a right such as that of the right to
education may be more important than other health-care related rights, such as the
right to a minimum level of health insurance. Adopting an overly ‘inclusive’
interpretation of the right to health threatens to obscure the vital independent role
these other rights must play in shaping global health policy.
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
is to be distinguished from other human rights. But a deeper problem concerns the
specification of its content, i.e., the content of the obligations associated with that
right, even after their general subject matter has been identified. 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 …
