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

both health and development groups, along with more traditional human rights advocacy organizations, have placed health and other social concerns on the democratization agenda in countries from South Africa to Peru in the last twenty-five years.³⁵ National human rights institutions have forcefully investigated such issues as involuntary sterilization as fundamental rights concerns and conducted inquiries with respect to abuses of sexual and reproductive health, bringing about sweeping policy changes as a result.³⁶

      Increasing efforts to promote social accountability at local and national levels are being enhanced through the Internet and social media, which have permitted international and regional networks of advocacy organizations to easily share information about rights-based strategies relating to health care, food, housing policies, trade agreements, and other issues that affect poor people’s health. Programs to map violations geospatially and cell phones that permit crowdsourcing, together with other increasingly cheap technologies, will undoubtedly enable innovations in accountability for health and other social rights in the near future that are unimaginable today.

       Rethinking Rights: Challenges

      Nevertheless, these developments must be seen within the larger political and economic context, which is overwhelmingly dominated by neoliberal economic policies and narrow liberal conceptions of rights, including those related to health and health care, and ensuing state responsibilities. Neoliberal economic policies, in general, seek to transfer control of the economy from the public to the private sector, reducing the obligations of the state and leaving in effect market forces with respect to access to health and other social rights. All too often, the result of such policies has been to consign large populations to being “externalities” of growth or austerity policies—means to achieving larger societal ends. The needs of people who live at the edges of society in extreme poverty are often disregarded in a political and economic focus on abstract economic development goals. As a result, those affected by such policies too often find their humanity and dignity shunted aside, as they are relegated to the gutters on the road to modernity.

      Despite advances in international law and at the domestic level, public policy and media discussions, as well as many legal frameworks, continue to distinguish between CP rights and ESC rights. For example, in 2007 the Economist magazine ran an editorial that typifies this widely held view. It attacked the tendency to “dilute” traditional CP rights by “mixing in a new category of what people now call social and economic rights.” The article argued that “no useful purpose is served by calling [food, housing, and so on] ‘rights.’ When a government locks someone up without a fair trial, the victim, perpetrator, and remedy are pretty clear. This clarity seldom applies to social and economic ‘rights.’ It is hard enough to determine whether such a right has been infringed, let alone who should provide a remedy, or how.”³⁷ As noted, the editorial’s argument that ESC rights are fuzzy “programmatic” rights that elude judicial remedy ignores the last two decades of jurisprudence and legal and constitutional reforms in many countries, as I discuss further in later chapters.

      However, perhaps even more important for our purposes now, the concept of human rights that the Economist editorial advocates—one that is widely understood in public discussions—limits human rights to a very palliative role in the regulation of power. The narrow liberal approach to human rights set out in the Economist—identifying a violation, a perpetrator, and a remedy—assumes an underlying state of equilibrium in a society in which all citizens are free and equal, as discussed in Chapter 1.³⁸ The violation upsets the equilibrium; the remedy restores it. Think of the Quijano torture case, in which bringing the perpetrators to justice theoretically restores the equilibrium. Of course, far more is required in practice, and the Quijano case illustrates how the institution of the PJF had to be reformed, and indeed still needs to be. This paradigm, which has been widely used in the human rights movement—of identifying a violation, perpetrator, and remedy—is thus not really appropriate for creating or describing the sustained systemic change needed with regard to CP rights.

      But in the case of health and other ESC rights, we are definitely not seeking to return to a status quo ante in a fixed society, with fixed rules about income and how resources are allocated. Think back to Article 28 of the UDHR, discussed in the Introduction, which sets out a right to “a social and international order in which the rights and freedoms set forth” in the Declaration can be fully realized.³⁹ Such a social (and international) order requires that progressively realizing the right to the highest attainable standard of health for diverse individuals and groups will necessarily involve evolving claims about what we owe each other as different, but fully equal, human beings. The responsibility of the state to meet these demands of distributive justice suggests not only flux but also contestation, which requires legitimate, democratic processes to resolve. In this conception, rights cannot be understood as immutable constraints on government action, as they are in a narrow liberal construction; rather, rights constitute social practices that create spaces for vital social deliberation on how to arrange social institutions to meet population needs, especially of the most disadvantaged.

       Examining Assumptions About the State, Society, and Justice

      In the aftermath of the global recession that began in 2008, austerity policies and state retraction from social services has become the norm—even in social democracies across Europe, where certain entitlements to social welfare had seemed unquestionable. National courts and international human rights treaty-monitoring committees are increasingly being asked to assess whether policies that appear to imply retrogression, or backsliding, with respect to social entitlements, have been implemented in reasonable and proportionate ways, with adequate protections for the most disadvantaged.⁴⁰

      In some cases, politicians seem to reflexively accept the politics of scarcity and austerity because of a failure of imagination, while in others there is a glorification of the “minimal” or laissez-faire state as being the ideal. The latter generally argue that using the power of the state to redistribute wealth through fiscal powers and regulation is not only inefficient but also unjust because it interferes with peoples’ liberties. Thus, again, neoliberal economic positions are closely aligned with a libertarian, or at least narrow liberal, version of rights and the state.

      The problem with this argument is that there is no “natural” or neutral distribution of wealth in a society; what a person ends up with in terms of resources will always depend on a combination of personal talents, parental heritage, luck, and the laws in the country in which he or she lives.⁴¹ I believe it is a mistake for human rights advocates to argue for redistribution of wealth through taxation as though it were a form of humanizing the underlying economically rational situation. This always puts ESC advocacy in a remedial or “defensive” posture. On the contrary, the distribution of wealth and privileges within a society and across societies is the result of socially created customs, laws, and regulations that permit and entrench those distributions, including ones that favor market expansion and limit social protections, including for people living in extreme poverty. Friends in Nordic countries have told me that they in no way feel that high rates of taxation are “taking something” from them; they had no “right” to that wealth to begin with.

      Compare, for example, how much wealth is inherited in the United States—and elsewhere. The rate at which estate taxes are set and what the loopholes are determine a great deal of inter-generational wealth—and, in turn, of prospects for the future. Yet in the United States and across many societies, legal rules and social norms foster the belief that a child of someone who has become very wealthy during his or her lifetime has some inherent claim to that wealth as a matter of right. Many children of inherited wealth tend to internalize some degree of superiority, as though the world were theirs and they were entitled to more from life than the poor. Children who grow up in severe poverty, in turn, tend all too often to believe the converse. But that need not be the case.

      Indeed, in a human rights framework that establishes obligations to respect the equal dignity of all people, it should not be. As the late legal philosopher Ronald Dworkin wrote: “A laissez-faire political economy leaves unchanged the consequences of a free market in which people buy and sell