universal, indivisible and interdependent and interrelated” and that the states must promote and protect all human rights and fundamental freedoms.16
All human rights (civil, political, economic, social, and cultural) are now understood at the international level to give rise to three dimensions of governmental obligations: the duties to respect, to protect, and to fulfill.17 The duty to respect requires refraining from direct interference; the duty to protect requires guarding from the interference by others (for example, through regulating private actors, as discussed in Chapter 1); and the duty to fulfill requires affirmative actions aimed at promoting the realization of the right, including access to care in the case of health.18
What Does It Mean to Treat Economic and Social Issues, Such as Health, as Rights?
In development and social policy, health has conventionally been construed in terms other than “as a right,” so it is worth exploring the question of what it would mean for Pilar and her child in Baborigame or Paula in Kenya—or anyone—to claim health as a right. If extreme poverty means that the world controls our lives in ways that leave us bereft of ethical independence, then the assertion of rights to economic and social entitlements, such as health, is a claim on the responsibilities of the state to ensure the conditions under which people can exercise meaningful agency. That claim, in turn, requires shifts in both the resources people have and the barriers they face that shape their ability to exercise choices; in other words, it requires shifting their “opportunity structures.”
But why should justice or fairness call for the state to take steps to equalize access to such entitlements with respect to health and health care when it does not in other areas? Indeed, “fairness” often means “getting what you pay for.” For example, we would not expect to pay USD 50 and be able to purchase the latest smartphone or expect to buy a Ferrari if we only have USD 10,000 to put toward a car. If we buy an economy-class ticket on an airline, we do not expect to get the same service as we would business class. To suggest otherwise seems far-fetched. Why should health, including health care, be different?
Philosopher Amartya Sen provides a useful way of thinking about this. Sen argues that to assert that health (or any other social issue, such as education or housing) is an issue of human rights implies that (1) it is of special importance and (2) it is subject to social influence.19 That health is of special importance has been persuasively argued on both normative and empirical grounds.
Our intuition that health is of special importance is related to the distinction Kant draws between that which has a price and that which is fundamental to dignity, as I mentioned in Chapter 1. As we discussed in that chapter, within a rights framework, to live with dignity requires being able to pursue a life plan. That, in turn requires preserving a normal range of opportunities in life or, using Sen’s terms, certain “capabilities.” There is abundant evidence that health is critically important for people to be able to maintain productive work and to have the capacity for physical as well as ethical independence in their lives.20 Health is a precondition to exercising basic self-government, and it is inextricably connected to the capacity to live with dignity. Therefore, health, including health care, cannot be treated as just another commodity to be allocated by the market, such as an airplane ticket or a car.21
As an empirical matter, it has often been pointed out that in almost every culture there are greetings, sayings, and rituals that highlight the special significance people place on health. For example, as Jonathan Mann noted in the mid-1990s, in virtually every language, toasts are commonly raised “to your health,” and expressions exist equivalent to my own grandmother’s constant refrain, “So long as you have your health.”22
The second requirement Sen sets out for thinking about health as a right is that it be subject to social influence. We cannot claim a right to beauty, grace, or musical aptitude because they are largely matters of genetics, fate, or personal effort. Consider, for example, Yo-Yo Ma’s ability to play the cello, Francisco de Goya’s creative genius, Lionel Messi’s soccer talent, Serena Williams’s tennis skills, or Wislawa Szymborska’s poetic voice. We don’t have rights to those talents, and indeed they are commonly called gifts or giftedness. Rights can only be achieved through social arrangements, which shows that such arrangements are not optional but necessary for us to enjoy our dignity fully. Think of the right to a fair trial or the right to fair and free elections, for example. These are matters of social institutions and arrangements—they cannot be achieved through personal effort or talent; they are subject to external social forces and they require public commitments. The same applies to a right to health.
Some people would say that it is silly to talk about a right to health, as so much of good health is indeed a matter of genetics, personal behavior, or simply luck. That is true—and it is precisely for this reason that there is no human right to be healthy under international or any national law. And in many countries, including the United States, there is still no acknowledgment of a right to health at all. But under international law, the right to health is phrased as the right to “the highest attainable standard of physical and mental health,” which as noted earlier presumes both individual differences and societal differentiation based on resource availability.23
However, as noted, the “right to health” under international law, as set out in the ICESCR and elsewhere, does extend beyond health care. Often when we think of obligations relating to health, we think of medical care. But in fact, the reasons people are able to be healthy are generally much more related to public health interventions—such as clean water, sanitation, nutritional measures, and control of occupational hazards—than to care received at a hospital or local health clinic. As was evident in Baborigame, this is particularly true for children. Unsafe drinking water, inadequate availability of water for hygiene, and a lack of access to sanitation contribute to about 1.5 million child deaths each year and account for almost 90 percent of deaths from diarrhea.24 These conditions also contribute to the spread of infectious disease, and of the more than seven and a half million children who died before their fifth birthday in 2010 almost two-thirds died of preventable infectious causes.25
These public health interventions are frequently invisible compared to medical interventions—unless you are in a country or place, such as Baborigame in the early 1990s, that does not have them, when that becomes painfully apparent. Just as with medical care, these public health interventions require institutional arrangements and societal commitments. They cannot be achieved by individuals acting alone. Consequently, it makes sense that these “preconditions to health” or “underlying determinants” are part of the right to health.
Leveling the Playing Field and a Minimum Threshold Level
As in Baborigame, extreme poverty frequently manifests itself as lack of access to the most basic preconditions of health, as well as access to care. The consequences of considering health and other ESC issues as rights are that the state then has a duty to “level the playing field” in terms of access to basic preconditions of health and care. These are not simply conditions that can be left to the market. A right to health does not call for equalization of all outcomes, or all incomes, though, and in Chapter 7 we discuss in much greater depth the extent to which applying human rights frameworks to health demands substantive equality.
In addition to a commitment toward equalizing access and entitlements, however, there is also an obligation on the part of the state to provide certain minimum standards to the entire population. The duty to provide such a minimum threshold level is not subject to progressive realization under international law or certain national jurisprudence; it is an immediate obligation that stems from what is necessary to protect the dignity of the most disadvantaged members
