Human rights: Food for a solidary thought
Human Rights Reader 466
[Taken from the doctoral thesis of Eduardo Arenas Catalan entitled ‘Solidarity and the RTH in the Era of Healthcare Commercialization’, 2018]
What is missing that is inherent to it?
1. What is missing is effectively linking the many (so far) unheeded claims with the duties of the institutions responsible to make the right to health (RTH) possible. The hypothesis here is that it is solidarity and not the further expansion of legal rights what will eventually give this social right its distinctiveness and its impact. For the most part, said institutions do not conceive of the RTH in its more substantive way; it is rather fundamentally interpreted as a legal right.*
*: Amartya Sen has written against that ‘legally parasitic view of human rights’ arguing that human rights (HR) must be seen as an approach to ethics, which stands in contrast, for instance, to utilitarianism.
2. Conversely, interpreting the RTH as a solidarity mechanism, it follows that social services are to function in a way that meets collective rather than individual entitlements.
3. The predominant legalistic interpretation of the RTH shifts it from the declared goal of equal-access-to-healthcare-for-all to the goal of achieving-a-justiciable-minimum for those denied (or unable to pay) healthcare services. And precisely this, it is contended, is what gives social rights (the RTH included) second-class status vis-a-vis civil and political rights.**
**: Social rights have a more democratic policy-making pedigree. The judiciary cannot operate actively on HR issues, but only in relative terms, i.e., it can only review a legislative decision, not (democratically) generate new policy. That is not its role.
4. To say that the RTH is grounded in solidarity is to mean that the goal of this right is to ever-increase the path towards equal access to healthcare for all –i.e., from access conditioned by social privilege to access based on citizenship and medical needs (including non-citizens within the state’s jurisdiction).
5. Let us be clear: The obligation to fulfill the RTH entails the establishment of a non-market right to access to public healthcare services free of charge, again, based on medical need.
6. Or in other words: Conceived under the solidarity lens, the RTH concerns the designation of an area that, due to its fundamental importance, is placed outside the market and is guaranteed to all.
7. Therefore, the inability of the authoritative bodies to identify the commercialization of healthcare as the greatest threat to the RTH is a fundamental part of the problem.
Furthermore, the right to health is a construct that cannot be envisioned separate from politics
Predatory forms of globalization cannot be reconciled with human rights.
8. Beware: It is not true that the idea of neoliberalism is opposed to the state. The forces of globalized capital have successfully put the state at the service of its agenda. The real management of capitalism requires market plus state. (Samir Amin)
9. Two key questions for HR workers are: What happens when one of the RTH’s most crucial components becomes operationalized under a private logic? and What does that say about the protection-on-an-equal-footing of the HR/RTH of all claimholders? Equal treatment is a non-negotiable HR principle. In this context, solidarity means not just equal access, but also means that, rather than confining scarcity on the shoulders of those rendered poor, these scarcities are justly distributed among all members of society.
10. Human rights law must, therefore, take a more decisive stand against the commodification of healthcare. Failure to do so is one of the most important reasons to explain the advances from the far right at the expense of HR. An area of priority action here.
11. It is thus disingenious to defend a framework of individual legal rights; they will never lead to health equality. Unsurprisingly, those that most strongly defend such a stand are often the ones with the economic means to seek the private healthcare they need.
So beware, the predominant interpretation of the RTH including the private commercial sector is wrongly based on a ‘political neutrality’ stand
12. This said, we must defend all social rights from two different, but equally testing adversaries: a) the cultural liberal voices that zealously defend HR as long as the adversary is the state and not the market; and b) the vociferous groups that do not want to know anything about HR.
13. It has become too co mmon to assert that “we all want the same thing, we just have slightly different ways of going about it”. This is simply a false and biased assertion. The rich do not want the same thing as those rendered poor. Those who depend on their job for their livelihood do not want the same things as those who live off investments and dividends. Those who do not need public services, because they can purchase private services, do not seek the same things as those who depend exclusively on the public sector. (Tony Judt)
Claudio Schuftan, Ho Chi Minh City
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