An inability to exercise power means that poor and vulnerable people cannot change the condition of their vulnerability and must remain dependent on others to do so.

[Although this applies to human rights in general, we will here more specifically look at the right to health]

1. Health planners are still uneasy dealing-with and focusing-on claims and duties in their work. They also perceive there is a contradiction between human rights (HR) and public health objectives; this flawed perception is premised primarily on an individualistic notion of what HR entail –and this is supposedly opposed to the collective focus of public health. How further from the truth could they be!

2. The challenge for these public health policy makers is to, first, acknowledge the above fallacy to then identify how best to synchronize health policies and programs with the HR framework –since both strive to maximize human wellbeing.

3. The other fallacy often voiced is that HR are ‘legalistic’ and thus mostly a bunch-of-‘legalese’ describing a utopia. But, the truth is that falling-back on the legal framework by itself is mostly not necessary upfront for the day-to-day enforcement of human rights in general* and the right to health (RTH) in particular: most violations of HR are evident just using common sense…
*: But do not misconstrue: International HR law can successfully be used a) to expose existing laws that violate HR principles, and b) to legislate at national level along international HR law (i.e., new laws). There is plenty jurisprudence on HR violations having successfully been brought to court and having been won –including in the area of health.

4. As a matter of fact, the HR legal framework is necessary, but not sufficient –and can actually, by itself, be disempowering. This, since, in the absence of community mobilization, claims to human rights are easily ignored, no matter how legally compelling. In other words, even if legal frameworks make sense and are clear, this does not automatically mean poor people will see their right to health respected, protected and fulfilled.
5. An important challenge here is to advance and broaden our work on seeking accountability in the area of health and HR. We are aware that one form of accountability is legal (judiciable), but there are others: In addition to using judicial remedies, we can also use budget analysis, specific process and outcome indicators, and other HR tools to monitor compliance). Basically, we need to seek new ways of working to build accountability into health systems and into the ways health workers work.
6. In practice, this means we need to identify the key features of the right to health and teach them to make them better understood –as the only way to make them more operational. There is thus currently a trend in the health and human rights movement that is driving us away from a purely legal analysis and more towards the actual operationalization of the right to health (P. Hunt).
7. So far, HR work has been good at identifying legal requirements, but not as good at identifying operational requirements. It is crucial to more actively engage with health workers to find ways to translate/operationalize the legal requirements in the HR covenants into operating guidelines/parameters in health work overall, from planning to implementation.

8. Bottom line: It is the process of civil society and health workers participation at all levels that is instrumental to improvements in health. Ergo, HR covenants and law(s) are important to fall-back-on but, alone, are not enough; they need to be coupled with de-facto community engagement –and the HR approach can and indeed does strengthen such community engagement!

9. But for this engagement to be jump-started, crucial information needs to be channeled to communities for them to use it in their political action so as to influence policy-makers to support a more equitable agenda. An active civil society that actively negotiates its inclusion in the decision-making system is the best guarantee of health equity.** The lesson to be learned here is that creating political space is about mastering relevant information and about accumulating power –not only to be heard, but to influence.
**: Come to think of it: How thin is the line between negotiation and imposition…?

10. Keep in mind that the HR framework directly addresses issues of power and is thus the strongest guarantor we nowadays have to achieve effective-equity-promoting-impacts. This is why we so often ruminate that we need empowerment rather than mere ‘participation’. The lesson to be learned here is that, in the HR framework, protesting is stronger than just complaining…].***
***: A caveat: Top-down devolving of responsibilities to districts (as seen in current decentralization efforts) risks absolving duty bearers in government of their HR obligations.

11. Information about the whys? of the current unfair situation thus importantly serves to reverse the powerlessness underlying inequity; That is why the role of information is so central in empowering community partners to do their own advocacy for action****. On the other hand, organized communities are, at the same time, generators of important information on the shortcomings of the health system…and that is why information from all sources is such a crucial enabling mechanism to realize HR.
****: As regards the consequences of unfair policies, you may have heard about Health Impact Assessment as an important generator of key information; HIA is a tool for assessing the health impact of policies in any sector; it ultimately seeks accountability, not only from governments, but also from transnational corporations, from multilateral and from bilateral aid organizations. If applied before policy implementation, it attempts to preempt the negative health effects foreseen.

12. Finally, the often forgotten strengths of the HR-based approach is that
a) it focuses the analysis on identifying system failures rather than branding individuals as the problem, and
b) it provides a workable and accepted framework for managing conflict between claim holders and duty bearers.

Claudio Schuftan, Ho Chi Minh City
cschuftan@phmovement.org

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