[Taken and only slightly adapted from Global Health, Human Rights and Challenges of Neoliberal Policies by Audrey Chapman, Cambridge University Press, 2016]

Mea culpa on behalf of me and my colleagues?

1. In all truth, the human rights (HR) community has not yet developed a truly effective strategy to dealing with globalization. Human rights advocates have asserted the priority of HR obligations, yes, but without yet really convincing relevant duty bearers. These advocates/activists have only had very sporadic successes. The absence of an ability to impose HR sanctions of the kind that the WTO and the World Bank have at their disposal places HR initiatives at a significant disadvantage.

2. Furthermore, the HR community has been/still is too often negligent in raising problematic structural issues and in addressing the resulting maldistribution of power, of wealth and of resources. Nevertheless, there are no inherent reasons why it should not do so. [I always keep in mind the following though: We compare our current HR situation, not to the past, but to an imagined ideal world, and thus we always fall short. (Kathryn Sikkink)].

3. Actually, the HR community tends to neglect the manner in which the top-down organization of power affects the realization of HR. All too often, HR actors attribute failures to follow HR prescriptions to a lack-of-political-will on the part of the government(s) rather than analyzing the underlying national and international power dynamics and structural determinants that block implementation of these prescriptions. Two critical social determinants, income and social class, are often missing from the HR discourse of colleagues in the HR community. (For years now, these Readers keep reminding us of this).

4. Yes, HR practitioners advocate for policies to remove current inequalities. But, as they do so, do they often enough focus on the structural determinants that need to be addressed to create greater equality of outcomes?

Mea culpa on behalf of human rights law?

5. Even HR law* is more concerned with disparities in the enjoyment of HR rather than with differentials in social position, access to resources and political power. It does not usually correlate how these differentials affect the enjoyment of rights.
*: A caveat is fitting here: Lawsuits applying HR law have been criticized for promoting inequality, because they benefit a small number of plaintiffs, most of whom are privileged, who get more from the health system than the rest of the population. This being true or not, what is clear is that sole reliance on a legal framework for HR is insufficient and disempowering; without community mobilization, claims to HR can be and are ignored.

6. While HR law is neutral on the issue of the privatization of health and other social services, the Commission on the Social Determinants of Health (CSDH) Report of 2008 was not neutral on this and argued it is essential to have strong public sector leadership, public financing and universal health coverage services provision. It had an entire chapter devoted to the importance of public financing through progressive taxation so as to provide adequate resources on an equitable basis to fund programs across the SDH spectrum. It also devoted a chapter to political empowerment, inclusion and voice. In it, political empowerment was identified as an important strategy for changing the distribution of power within society especially in favor of the right to health and nutrition of disenfranchised groups and nations.

Mea culpa on behalf of WHO?

7. WHO has missed the opportunity to provide leadership in advancing the rights-based approach to health. It has not been an active proponent of the HR-based approach. HR have not played a significant role in guiding the overall work of WHO. As a matter of fact, the health and HR agenda within WHO is marginal, contested and severely under-resourced. These flaws, have indeed contributed to WHO’s marginalization;** it simply is focused much more on technical matters and vertical programs, is too wedded to the traditional biomedical disease model, is too bureaucratic and is insufficiently involved with public interest civil society organizations and social movements (while having opened its doors to influence by the private sector and philanthropies).
**: TNCs, international financial institutions and the WTO, all of which are not legally bound by HR law and norms, have instead been ascending in influence for over a decade now. Moreover, there are very few norms and policies on extraterritorial obligations (ETOs) so they are not currently reflected in states’ policies that neither address the structural issues that have given rise to the current widespread health inequalities, nor do they provide anything near the compensatory measures to undo the ravages of neoliberal globalization on health systems and the right to health.

There is no other way: Human rights work must be carried out to ultimately override the constraints imposed by neoliberalism

[It is the package of political and economic policies advocating the roll back of the welfare state and the substitution of market-based approaches in its place that has come to be known as neoliberalism].

-Neoliberalism and human rights are conflicting paradigms. Period!

8. Implementing social and economic rights requires using the power of the state to redistribute wealth and resources –an anathema of neoliberalism– simply because, among other:
• neoliberalism eliminates or excludes the concept of public goods and notions of social citizenship and social responsibility and replaces it with individual responsibility;
• neoliberalism values market exchanges as an ethic in itself, capable of acting as a guide to all human action and substituting for all previously held ethical standards and beliefs;
• -it is socio-economic positions that shape specific determinants of health status reflective of people’s place within social power hierarchies;
• neoliberal public policies have been remarkably unsuccessful at achieving what they claim to be aiming at, namely economic efficiency and social well-being; and because
• one of neoliberalism’s central claims is that generous health entitlements are not economically viable and sustainable, its policies advocate for cutbacks in social expenditures.

9. It thus becomes necessary to take on the neoliberal economic establishment and the neoliberal political order to counter the underlying assumptions of neoliberalism, to reveal the skewed distribution of the benefits of neoliberal policies in favor of the affluent and powerful, and to seek to bring about a return to something more closely approximating the social welfare and HR orientation of governments in the decades following World War II.

10. But, as said, while the HR-based approach potentially offers an alternative and compelling paradigm to counter neoliberal globalization, to date, it has not been able to do so.

11. Although with some shortcomings, did the Social Determinant of Health Report hit the nail better on the head than what human rights scholars had done before it for health?

• The CSDH Report clearly highlighted that it is the structural, economic, political and social forces in society that are the ones that ultimately shape life opportunities.
• The CSDH Report tackled the underlying structural determinants that generate stratification and social class divisions in a society and that define individual socio-economic and prestige positions, as well as the access to resources situation.
• Interestingly, the CSDH secretariat did argue for the adoption of the HR framework for their report, but the members of the Commission rejected it in a vote. As a result, the Report borrowed the principles of empowerment and voice from HR without incorporating the conceptual foundations of the HR framework.
• The CSDH’s interpretation of empowerment adopted its liberal understanding and thus ended up suffering from many of its limitations. Such liberal understanding typically assumes a level playing field in which the ability to express one’s views can be potentially effective as input for change –this being far from the situation in most societies.

Yes, but the human right to health sure has its merits!

12. The right to health (RTH) warns us of many ‘bewares’ so that:
• it calls for eliminating out of pocket payments for health services and for progressive taxation to strengthen primary health care (PHC);
• it sees the strengthening of health systems starting with a focus on improving access to PHC;
• it focuses some overall attention on the manner in which social class and economic status affect health outcomes;
• it calls for governments not to rely on the private sector for the expansion of health coverage;
• it denounces the fact that relying on private sector insurance and health services provision for extending health coverage is more likely to reinforce rather than correct many of the current problems and inequalities that current health systems face.
• it claims that it is ethically unacceptable for health policies to expand coverage for low and medium priority services to some groups before achieving near universal coverage for high priority services;
• it states that the collective right to development transcends the RTH’s focus on the individual (for RTH proponents, it is far preferable to conceptualize and strengthen the collective dimensions of this right);
• it advocates for rights-based social protection measures to address poverty and financial security as for example cash transfers; and
• it calls for reducing access to health barriers to low income groups.

…and demerits!

13. Instead of advocating for a single payer system, the RTH literature often falls short in thinking that sufficiently large risk pools can allow for cross-subsidization ‘recognizing’ the disadvantage of this often excluding those who are not formally employed or who cannot afford the required health insurance payments. (Recognizing is not enough…).

14. The RTH approach also falls critically short in that, in our work, we simply have to examine how specific inequalities are produced and whether governments and other actors can be held accountable for redress. Never forget that poverty and especially extreme poverty are violations of HR –actually both a cause and a consequence of HR violations. So HR work has to identify patterns rather than to simply catalogue single HR violations. This, because real change requires going beyond identifying those who have been the victims of discrimination and disempowerment and seeking redress, to identifying the sources of the deprivation and exclusion and trying to change the system given that specific violations more often than not reflect underlying structural problems.***
***: As a response, those in power actively engage with ‘moderates’ to stave off such criticism by more radical groups.

15. It is also worth mentioning that the RTH approach usually focuses on more modest and incremental policy changes. For instance, it calls for ‘policy coherence’, a coherence that fails due to the same reason as calls for ‘multisectoral coordination’ or ‘health in all policies’ fail, i.e., the ideological underpinnings explored above when some do not recognize the structural barriers.

And then, there is Universal Health Coverage

16. A HR-based approach to Universal Health Coverage (UHC), among other, requires:
• addressing the SDH;
• legal entitlements;
• covering all residents of a country regardless of their legal status;
• explicit attention to equity and equality considerations;
• an equitable and progressive system of health funding that significantly reduces financial barriers;
• funding equivalent to 15% of total government budget;
• greater balance achieved between rural and urban areas in participation of the population as claim holders; and
• recognition of the RTH in national law providing a basis through which to contest government failures in the provision of UHC; these legal provisions must be binding.

17. Make no mistake, UHC has generally been struggled for and won by social movements, and not spontaneously bestowed by political leaders.

UHC caveats

-UHC involves more than just rhetoric.
-Too often the transition to UHC is being viewed as a top-down initiative.
-In the drive for UHC, what are we talking about: Universal access or market segmentation?

18. In the prevailing worldwide context of UHC:
• It is likely that curative medical care ‘packages’ thrown at those rendered poor will take precedence. Developing such essential health packages (EHP) is not just a technical exercise. Political and institutional processes need to be engaged. Without adequate national ownership, an EHP is unlikely to be successfully implemented –no matter how popular it is with donors. Very few countries have managed to develop an EHP in such a participatory framework. More often, the formulation of an EHP is viewed as a purely technical exercise reserved for experts and done in a non-transparent manner. Essential health packages cannot serve as a vehicle to promote equity and equality. Formulating such is simply not sufficient.
• Rights to health obligations do not extend to documented and undocumented migrants, refugees and asylum seekers.
• Because out-of-pocket payments are the least equitable and often the common situation in health care funding, the adoption of neoliberal approaches to achieving UHC will inevitably result in inequitable health systems unable to fulfill HR requirements.
• The current neoliberal model of UHC prescribes a clear split between health financing and health provision that endorses the continuing role of existing private providers and private health management organizations.****
• Funding via private health insurance reflects neoliberal policies, but in reality is not consistent with HR requirements for achieving UHC. Such insurance ‘is said’ to be suited to cover underserved populations ‘without a significant makeover’ of the system. But doing so, there is the looming risk that UHC will become more a slogan than a reality.*****
****: Policies to reduce the inimical negative HR impacts of private sector provision require capabilities to regulate and monitor health systems which many countries lack. Reiterating that states remain responsible for ensuring that private providers act in accordance with HR norms is only the beginning. There is a need to offer specifics as to how this must be accomplished. The HR regime requires positive action on the part of the state to enable people to live in conditions consistent with at least minimum standards of health and human dignity. The state is the ultimate guardian of its citizens’ welfare and has the obligation to empower the individuals as claim holders.
*****: Somewhat ironically, UHC has become prominent on the global health agenda at the time when the impact of the neoliberal policies makes this goal more difficult to achieve.

Claudio Schuftan, Ho Chi Minh City

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