Power, Suffering, and the Struggle for Dignity. Alicia Ely Yamin

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 Human Rights in 1993, contributed enormously by stating that, “all human rights are 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