are misplaced, and reveal certain limited assumptions about society, the obligations of the state, and the demands of justice. It is only when we question those narratives that we can develop empowering approaches to human rights—and development—which can better address the root causes of poverty and advance the health and dignity of the most disadvantaged among us.
Interdependence and Indivisibility of Human Rights: The Right to Health as Set Out Under International Law
As discussed in Chapter 1, the deprivation of civil rights—through torture or the arbitrary detentions by the military in Baborigame, for example—have severe health consequences. Indeed, health is both the result of the enjoyment of a wide array of different human rights, as well as a precondition to be able to participate fully as an equal citizen in society and to live a life of dignity. It illustrates vividly the importance of thinking about the realization, as well as the violation, of human rights in terms of their interdependence and indivisibility.
The Universal Declaration of Human Rights, which was promulgated by the United Nations General Assembly in 1948, reaffirmed member states’ “faith in fundamental human rights, in the dignity and worth of the human person and in the equal rights of men and women and [their determination] to promote social progress and better standards of life in larger freedom.” The Declaration includes both CP rights and ESC rights, including the right to a decent standard of living.9
The recognition of all human rights as being inextricably intertwined makes intuitive sense. We cannot think about an active citizenry participating in public affairs if those citizens are uneducated. Conversely, we cannot imagine a meaningful right to work without freedoms of association and information for workers. Further, as in Baborigame, much of poverty is inextricably linked with discrimination along gender, religious, racial, ethnic, or other lines. And it is often a noxious combination of intersecting discriminations, as well as stigma, that entrenches people in poverty and limits their ability to exercise agency.
In 2014, a long way from Baborigame, I met Paula, whose life story illustrated exactly how these different kinds of rights deprivations combine to limit life choices. Paula was one of the plaintiffs in a court case being brought on behalf of a group of Kenyan women who had been involuntarily sterilized because of their HIV status. She was in her 40s when I met her, with a tenacity that must have helped her through the many hardships and the constant discomfort she suffered as a result of a poorly performed bilateral tubal ligation (BTL). Paula had been born into abject poverty in a village in western Kenya, had been forced to drop out of school after completing primary school, had gotten pregnant multiple times against her will because the successive men in her life had not allowed her to use contraception, and had been infected with both syphilis and HIV. None of Paula’s partners had provided for her after her children were born and she often had to support not only herself and her children but also these men, as well as her grown brothers. She had been subjected to emotional and physical abuse by nearly all the men in her life and, finally, by the health system, which coerced her into having a BTL by threatening to withhold the infant formula and antiretroviral (ARV) medications vital to both her and her child’s survival. Paula’s experience of the funnel of narrowing choices over her life was inextricably shaped by the interactions between her economic exclusion and the brutal gender discrimination she faced which led to lack of education and abuse, as well as the stigma and ignorance surrounding HIV. In real people’s lives, autonomy and entitlements, and different kinds of rights that enable living with human dignity, are inseparable.
Nevertheless, during the Cold War, CP rights (such as rights to bodily integrity and freedom from torture) and ESC rights (such as rights to work, education, and health) were divided into twin covenants, in which the obligations had very different status under the law. The right to health was treated as an ESC right under international law and was included in the International Covenant on Economic, Social and Cultural Rights (ICESCR), which was promulgated in 1966. Because of the manner in which obligations are worded in the ICESCR, much of the right to health was not immediately enforceable, in contrast, for example, to civil rights, such as the right to be free from torture or cruel, inhuman, and degrading treatment. Rather, it was subject to “progressive realization” in accordance with a state’s “maximum available resources.”10
Article 12(1) of the ICESCR, which is the core formulation of the right to health under international law, sets out the right of everyone to the “highest attainable standard of physical and mental health.” Article 12(2) announces steps states should take toward its progressive realization: “reduction of the stillbirth-rate and of infant mortality and [provision] for the healthy development of the child; improvement of environmental and industrial hygiene; prevention, treatment and control of epidemic, endemic, occupational and other diseases; and the creation of conditions which would assure to all medical service and medical attention in the event of sickness.”11
The distinction between the way CP and ESC rights were treated in the twin covenants reflected and affected interpretation, discourse, and practice under international law. Health and other ESC rights were largely relegated to being merely “programmatic” rights, rather than “real” legal rights subject to judicial enforcement. One of the staunchest supporters of this view in international circles, the United States, stated at the former UN Commission on Human Rights: “The realization of economic, social and cultural rights is progressive and aspirational. We do not view them as entitlements that require correlated legal duties and obligations.”12
At first glance, the right not to be tortured is intuitively universal; it is ostensibly a “negative” right, requiring only restraint from the government. However, the right to the highest attainable standard of health may seem to be different; it may appear to be a “positive” right, requiring affirmative actions and spending. Yet these distinctions are misleading. In practice, ESC rights require forbearance on the part of the state—such as refraining from engaging in forced evictions—and CP rights require affirmative actions and expenditures.
For example, vast resources are poured into meeting minimum standards for “fair and free” electoral processes in impoverished countries, which require massive international assistance. According to a 2006 United Nations Development Programme (UNDP) report, the cost of one vote in one election averaged USD 1 to USD 3 in the United States and Western Europe; USD 4 to USD 8 in “consolidating democracies,” such as Lesotho; and up to USD 45 in post-conflict situations.13 In India, the general elections that began in April 2014 were projected to cost a staggering USD 5 billion,14 which is equivalent to more than 90 percent of what the country allocated for health in that fiscal year.15 High costs are also a price we pay for adhering to the right to a fair trial, including the costs of public defenders. Yet the cost of CP rights, such as fair and free elections and the right to due process, is largely hidden through general taxation, and we do not in general question the responsibility of the state to provide these fundamentals to human dignity.
In practice, no rights can be implemented from one day to the next; all require “progressive realization.” Think of achieving the right to be free of torture and cruel, inhuman, or degrading treatment. If we think only about acts committed by police and military, such as in the Quijano case or in Baborigame, we would still require long-term investments in legal reforms, as well as institutional reform with respect to the security forces as well as judiciary. And, as discussed in Chapter 1, when we expand our conception of torture to include omissions as well as actions in health care settings, and domestic abuse, the actions for which the state is responsible extend to a far broader range of initiatives aimed at prevention, at educational and attitudinal change, in addition to legal, regulatory, and policy reform.
Since the Cold War thawed, international law has evolved considerably to some extent dissolving these unhelpful distinctions. The Vienna Declaration, the outcome document stemming from the Vienna Conference on
