- The meaning of the human rights (HR) discourse in health
1.The revived interest in a HR-based approach to development and to work in health and nutrition is well justified and an advantage over our current approach. HR –and the right to health– have a particular concern about those who are disadvantaged, marginalized and living in poverty.
2.Widespread unsatisfied health needs, primarily of the poor who lack economic access to health services (and are now faced with widespread fee-for-service charges), represent flagrant violations of the rights of a majority of people. This is to be seen in good part as a failure of beneficiaries themselves to act as empowered claim holders placing their demands from a power base that can force non-performing duty bearers (individuals and institutions/organizations) to provide the services and resources needed to reverse those violations.
3.We have become quite good at doing detailed Situation Analyses of unfulfilled needs and entitlements. But these only list and sometimes characterize the multiple violations of the right to health. So these represent diagnoses only. Moreover, entitlements and needs do not carry correlative duties for duty-bearers. Rights do!
4.To get something done about these violations we have to further embark in Capacity Analyses that look at who is supposed to do what about each of the violations we document (and why they are not doing much or anything). Capacity Analyses have also been called Accountability Analyses, because seeking accountability provides claim holders with the opportunity to understand how duty bearers have discharged their obligation and provides duty bearers with the opportunity to explain their conduct.
5.After carrying out these capacity analyses, we have to –in an organized way, through proactive community mobilization– embark with the beneficiaries in doing-something-about-those-violations, knowing exactly who needs to be approached/confronted and with what specific demands.
6.All unfulfilled needs, by definition, cause some kind of harm (by omission). But the satisfaction of basic needs does not carry a legal obligation for decision makers –though perhaps a moral obligation. But moral obligations have not been sufficient to satisfy the numerous violated rights of the poor in the last 40 years (or more) of Northern-led development.
7.Unfulfilled-needs-and-entitlements-seen-as-violations-of-human-rights, on the other hand, DO bind duty bearers legally under international law and, among other, under the Constitution of the World Health Organization (WHO). Most countries have signed the respective UN HR Covenants –and this is the most important…we are now demanding duty bearers to legally uphold what has been signed by their respective countries and has now been sanctioned by the international community.
8.Moreover, the Constitutions of over 100 countries include the respect of health-related rights; courts around the world are already adjudicating cases involving the right to health. There is thus now a growing body of international HR law and practice to help us identify the specific interventions and policies that are needed to achieve human (people’s) rights goals in health. Therefore, the challenge now is to bring the right to health to actually bear upon local, national and international policy making processes. It is to be noted that proactively influencing policy making in health does not depend on winning related HR court cases; the policy-influencing approach is not a soft option; it calls for forceful social mobilization: It is not about listening to the powerless and marginal; it is for the latter to be empowered to demand accountability for key structural changes not occurring without a push. The court-based and the policy approach are thus mutually reinforcing and both should be used in our struggle; we thus need to promote and mobilize people for both. What is now left is to implement all these practices that operationalize the right to health at the community, national and international level by addressing issues of poverty, discrimination and stigma face-on, particularly in relation to gender, children, racism, HIV/AIDS and mental health issues.
9.All this represents an important quantum jump in our prospects to achieve some of the changes we want to see being implemented in health and in society.
10.It needs to be emphasized here that reaching the MDGs also will have to pass through breaking the poverty syndrome behind pretty much all the indicators of the MDGs. In our case, looking at these goals only through the prism of the right to health will only advance our cause in the health indicators (goals), i.e., a very partial victory. Many are calling for specific ‘contributions of the right to health to poverty reduction’. I rather see it the other way around: “how-will-poverty-reduction-contribute-to-the-right-to-health”. (Or, at best, we see it both ways, but not the former way alone). I am NOT seeking pro-poor health policies! I seek “pro-health-poverty-reduction-policies”!
11.The HR cause gives us the possibility to advance our political agenda towards equity, towards the indispensable structural changes that need to be made for health and other social services to receive the resources they need to reverse the corresponding rights currently being violated.
12.If not willing to cooperate, we now can face duty bearers accusing them of violating international law. And that is a tactical advantage. We can now demand structural changes under the wing of international law. Our challenge now is to spread the word about this so that, in alliance with claim holders, we can muster the power to give a new direction and greater momentum to our struggle for ‘Health For All Now’.
Claudio Schuftan, Ho Chi Minh City