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Chapter 2

The Powerlessness of Extreme Poverty: Human Rights and Social Justice

Like slavery and apartheid, poverty is not natural. It is man-made, and it can be overcome and eradicated by the actions of human beings. And overcoming poverty is not a gesture of charity. It is an act of justice. It is the protection of a fundamental human right, the right to dignity and a decent life.

—Nelson Mandela, BBC News, February 3, 2005

People used to say that it is awful, regrettable, or troubling that so many children go to bed hungry…. Today … we can now picture the poor not as shrunken wretches begging for our help, but as persons with dignity who are claiming what is theirs by right.

—Thomas Pogge, Freedom from Poverty as a Human Right

Around the world, it is the poor who suffer the vast majority of civil and political rights violations, including torture, in both public and private spheres. In the years I lived in Mexico, far more of the clients I worked with were like Gabriela, with limited choices and struggling to make ends meet—and not like Rosa, who was decidedly middle class. There was the teenager who was playing soccer with friends, who must have irritated the wrong police officer on the wrong day because he ended up tortured to death in a local jail for simply urinating in public. Or the campesino (peasant farmer) who was mercilessly harassed and finally murdered with impunity by drug traffickers when he wouldn’t relinquish the land his family had received from “The Great One”—Lázaro Cárdenas—after the Mexican Revolution.¹ Or the young woman who got caught up in helping a drug dealer for money, was subjected to a Kafkaesque trial, and was then sexually assaulted by a guard in prison. Or a dozen other people for whom severe poverty itself was a prison of despair.

Profound poverty makes people hostages to their fates, and entire futures dissolve because of petty bureaucratic decisions or arbitrary abuses of power. In Behind the Beautiful Forevers, Katherine Boo writes of Annawadi, a slum in Mumbai, India, saying that for the very poor, good fortune “derived not just from what people did, or how well they did it, but from the accidents and catastrophes they dodged. A decent life was the train that hadn’t hit you, the slumlord you hadn’t offended, the malaria you hadn’t caught.”² People who are not just of modest means but who live in extreme poverty are constantly faced with “Sophie’s choices” about which child goes to school, which will get health care, who will get to eat that day.³ When poverty takes away such basic power over one’s life, it makes self-governance and therefore dignity impossible, and it represents violations of a series of human rights, including health and other economic and social rights, under international law.

I was still doing conventional civil and political rights work in Mexico when I participated in a fact-finding delegation to Baborigame, a small village in the southern part of the Sierra Tarahumara in the state of Chihuahua. Baborigame would be a short flight to Tucson, Arizona, where some of the most sophisticated medical care in the world is available. But the Sierra Tarahumara is a mountainous area, and in the early 1990s it had extremely poor infrastructure. The terrain and difficulty of access made the Sierra Tarahumara ideal for cultivating opium poppies, and drug lords forced many of the indigenous campesinos who owned small tracts of land in the area to do just that. As I have described elsewhere, in 1992, the Mexican military burned down much of the village of Baborigame, took away men to torture them, stole and killed livestock, and displaced the entire population.⁴ Allegedly the military was eradicating opium poppies, but it is entirely possible that the eradication merely reflected a transfer of control between the cartels, on whose payrolls were many of the Mexican officials engaged in the so-called “drug war.”

Along with a small group that included both Mexican and international human rights activists, I went to investigate the events that had occurred in Baborigame.⁵ One morning, the helicopter going to survey the eradicated crops from the air was full and I stayed behind with the missionary nuns, who did what they could to attend to the impoverished Tepehuac community in this isolated area of northern Mexico. The Tepehuac community, like the vast majority of indigenous groups in Mexico, was disproportionately represented among the most severely impoverished in the country. At the time, the government was providing almost no water, sanitation, or health services to this remote area. The small group of nuns provided basic primary care and did whatever they could for patients who required more complicated attention, such as a man with leprosy who had lost some of his limb function.

I had no idea that I was going to watch a child die that day. By the time his mother, Pilar, brought him in, the infant was so dehydrated and weak that he was incapable of crying. Given the nuns’ meager supplies, there was nothing to do but pray and watch as life faded from his tiny body. Pilar held his body and cried softly. We all cried. The commonly accepted narrative that the destitute or those in certain “other” cultures experience less grief over the loss of a child because it is so common is simply not true. But it may allow the privileged to distance themselves from the implications of having to address the immense suffering of fellow human beings, whether in the slum across the street or across the world.

Apart from the images of the last minutes of the child’s life, what I recall most vividly from that day more than twenty years ago was that his mother did not express the rage, in addition to sadness, which I felt so acutely—rage that her community lived without adequate water, sanitation, and food; rage that there was no accessible health care when her son did fall ill as a result; rage that her son had died an entirely preventable death because of these deprivations and the systematic discrimination against indigenous populations in Mexico. Pilar understood the military’s arbitrary detentions, tortures, theft of livestock, and wanton destruction of property as human rights violations. Indeed, denouncing those abuses to my delegation is what had brought her and her neighbors down the mountain. Nevertheless, her anger did not appear to extend to her living conditions, which were the underlying cause of her son’s death. What was striking on that cold morning in 1992 was the absence of the mother’s sense of the terrible injustice implicit in her son’s suffering and death. To her, as with so many mothers and families I have met before and after her, the death of her son was simply “the will of God.”⁶

I have no doubt that the impotence Pilar felt—and her actual powerlessness—was just as profound as that which Rosa experienced as she watched her brother being tortured. Indeed, when the World Bank published the groundbreaking Voices of the Poor study in 2000, which attempts to understand people’s experiences of poverty through discussions with tens of thousands of poor people around the globe, what came across was that “again and again, powerlessness seems to be at the core of the bad life.”⁷ The very poor are at the mercy of fate, as well as the capricious whims of those in power; when poverty is combined with other axes of identity, such as ethnicity in this case, or gender, race, or caste, the disempowering effects can increase exponentially. Moreover, as the World Bank study showed, being extremely poor not only means going without food or shelter or education, it also often means being treated badly by institutions, such as the health and justice systems, and excluded from voice in those institutions as well as in the larger society.

Yet the human decisions and human actions that lay behind the death of Pilar’s son seem more obscure, more invisible, than what happened to Héctor Quijano. Once again, how we understand causation and the boundaries of human responsibility lie at the heart of how we respond to different forms of suffering. That is, if we understand Pilar’s son’s death as misfortune or personal tragedy, it elicits a very different response than if we understand it as injustice, for which the ground was laid by human decisions and actions, not by divine will. Although the first perhaps creates sympathy, the second calls on us to translate compassion into political, social, and legal action.

Philosopher Thomas Pogge writes that extreme poverty—and the suffering and human rights violations that it creates—are intimately connected to our social arrangements at national and global levels: “Severe poverty today, while no less horrific than that experienced by the early American settlers, is fundamentally different in context and causation. Its persistence is not forced on us by natural contingencies of soil, seeds, or climate. Rather, its persistence is driven by the ways that economic interactions are structured: by interlocking national and international institutional arrangements…. We can avoid it … by restructuring national and global legal systems so that everyone has real opportunities to escape and avoid severe poverty.”⁸ It was through experiences such as the one in Baborigame, that I came to feel at a visceral level that for human rights frameworks to be relevant to the struggles for dignity of the great majority of the world, these frameworks needed to provide useful approaches to restructuring those national and global systems.

In this chapter, I first set out the interconnectedness of all human rights—economic, social, cultural, civil, and political. I go on to explore what it would mean to conceive of issues relating to social and economic conditions—and to health, in particular—as rights, and how doing so is directly related to our understanding of the importance of dignity and has consequences for how we address lack of access to the most basic conditions of public health and health care. I then describe how modern human rights law has evolved, including eroding the differential treatment of categories of rights. But I also note challenges presented by prevailing neoliberal economic paradigms and their relationship to narrow conceptions of rights. I argue that traditional arguments against health and other ESC rights are misplaced, and reveal certain limited assumptions about society, the obligations of the state, and the demands of justice. It is only when we question those narratives that we can develop empowering approaches to human rights—and development—which can better address the root causes of poverty and advance the health and dignity of the most disadvantaged among us.

Interdependence and Indivisibility of Human Rights: The Right to Health as Set Out Under International Law

As discussed in Chapter 1, the deprivation of civil rights—through torture or the arbitrary detentions by the military in Baborigame, for example—have severe health consequences. Indeed, health is both the result of the enjoyment of a wide array of different human rights, as well as a precondition to be able to participate fully as an equal citizen in society and to live a life of dignity. It illustrates vividly the importance of thinking about the realization, as well as the violation, of human rights in terms of their interdependence and indivisibility.

The Universal Declaration of Human Rights, which was promulgated by the United Nations General Assembly in 1948, reaffirmed member states’ “faith in fundamental human rights, in the dignity and worth of the human person and in the equal rights of men and women and [their determination] to promote social progress and better standards of life in larger freedom.” The Declaration includes both CP rights and ESC rights, including the right to a decent standard of living.⁹

The recognition of all human rights as being inextricably intertwined makes intuitive sense. We cannot think about an active citizenry participating in public affairs if those citizens are uneducated. Conversely, we cannot imagine a meaningful right to work without freedoms of association and information for workers. Further, as in Baborigame, much of poverty is inextricably linked with discrimination along gender, religious, racial, ethnic, or other lines. And it is often a noxious combination of intersecting discriminations, as well as stigma, that entrenches people in poverty and limits their ability to exercise agency.

In 2014, a long way from Baborigame, I met Paula, whose life story illustrated exactly how these different kinds of rights deprivations combine to limit life choices. Paula was one of the plaintiffs in a court case being brought on behalf of a group of Kenyan women who had been involuntarily sterilized because of their HIV status. She was in her 40s when I met her, with a tenacity that must have helped her through the many hardships and the constant discomfort she suffered as a result of a poorly performed bilateral tubal ligation (BTL). Paula had been born into abject poverty in a village in western Kenya, had been forced to drop out of school after completing primary school, had gotten pregnant multiple times against her will because the successive men in her life had not allowed her to use contraception, and had been infected with both syphilis and HIV. None of Paula’s partners had provided for her after her children were born and she often had to support not only herself and her children but also these men, as well as her grown brothers. She had been subjected to emotional and physical abuse by nearly all the men in her life and, finally, by the health system, which coerced her into having a BTL by threatening to withhold the infant formula and antiretroviral (ARV) medications vital to both her and her child’s survival. Paula’s experience of the funnel of narrowing choices over her life was inextricably shaped by the interactions between her economic exclusion and the brutal gender discrimination she faced which led to lack of education and abuse, as well as the stigma and ignorance surrounding HIV. In real people’s lives, autonomy and entitlements, and different kinds of rights that enable living with human dignity, are inseparable.

Nevertheless, during the Cold War, CP rights (such as rights to bodily integrity and freedom from torture) and ESC rights (such as rights to work, education, and health) were divided into twin covenants, in which the obligations had very different status under the law. The right to health was treated as an ESC right under international law and was included in the International Covenant on Economic, Social and Cultural Rights (ICESCR), which was promulgated in 1966. Because of the manner in which obligations are worded in the ICESCR, much of the right to health was not immediately enforceable, in contrast, for example, to civil rights, such as the right to be free from torture or cruel, inhuman, and degrading treatment. Rather, it was subject to “progressive realization” in accordance with a state’s “maximum available resources.”¹⁰

Article 12(1) of the ICESCR, which is the core formulation of the right to health under international law, sets out the right of everyone to the “highest attainable standard of physical and mental health.” Article 12(2) announces steps states should take toward its progressive realization: “reduction of the stillbirth-rate and of infant mortality and [provision] for the healthy development of the child; improvement of environmental and industrial hygiene; prevention, treatment and control of epidemic, endemic, occupational and other diseases; and the creation of conditions which would assure to all medical service and medical attention in the event of sickness.”¹¹

The distinction between the way CP and ESC rights were treated in the twin covenants reflected and affected interpretation, discourse, and practice under international law. Health and other ESC rights were largely relegated to being merely “programmatic” rights, rather than “real” legal rights subject to judicial enforcement. One of the staunchest supporters of this view in international circles, the United States, stated at the former UN Commission on Human Rights: “The realization of economic, social and cultural rights is progressive and aspirational. We do not view them as entitlements that require correlated legal duties and obligations.”¹²

At first glance, the right not to be tortured is intuitively universal; it is ostensibly a “negative” right, requiring only restraint from the government. However, the right to the highest attainable standard of health may seem to be different; it may appear to be a “positive” right, requiring affirmative actions and spending. Yet these distinctions are misleading. In practice, ESC rights require forbearance on the part of the state—such as refraining from engaging in forced evictions—and CP rights require affirmative actions and expenditures.

For example, vast resources are poured into meeting minimum standards for “fair and free” electoral processes in impoverished countries, which require massive international assistance. According to a 2006 United Nations Development Programme (UNDP) report, the cost of one vote in one election averaged USD 1 to USD 3 in the United States and Western Europe; USD 4 to USD 8 in “consolidating democracies,” such as Lesotho; and up to USD 45 in post-conflict situations.¹³ In India, the general elections that began in April 2014 were projected to cost a staggering USD 5 billion,¹⁴ which is equivalent to more than 90 percent of what the country allocated for health in that fiscal year.¹⁵ High costs are also a price we pay for adhering to the right to a fair trial, including the costs of public defenders. Yet the cost of CP rights, such as fair and free elections and the right to due process, is largely hidden through general taxation, and we do not in general question the responsibility of the state to provide these fundamentals to human dignity.

In practice, no rights can be implemented from one day to the next; all require “progressive realization.” Think of achieving the right to be free of torture and cruel, inhuman, or degrading treatment. If we think only about acts committed by police and military, such as in the Quijano case or in Baborigame, we would still require long-term investments in legal reforms, as well as institutional reform with respect to the security forces as well as judiciary. And, as discussed in Chapter 1, when we expand our conception of torture to include omissions as well as actions in health care settings, and domestic abuse, the actions for which the state is responsible extend to a far broader range of initiatives aimed at prevention, at educational and attitudinal change, in addition to legal, regulatory, and policy reform.

Since the Cold War thawed, international law has evolved considerably to some extent dissolving these unhelpful distinctions. The Vienna Declaration, the outcome document stemming from the Vienna Conference on Human Rights in 1993, contributed enormously by stating that, “all human rights are universal, indivisible and interdependent and interrelated” and that the states must promote and protect all human rights and fundamental freedoms.¹⁶

All human rights (civil, political, economic, social, and cultural) are now understood at the international level to give rise to three dimensions of governmental obligations: the duties to respect, to protect, and to fulfill.¹⁷ The duty to respect requires refraining from direct interference; the duty to protect requires guarding from the interference by others (for example, through regulating private actors, as discussed in Chapter 1); and the duty to fulfill requires affirmative actions aimed at promoting the realization of the right, including access to care in the case of health.¹⁸

What Does It Mean to Treat Economic and Social Issues, Such as Health, as Rights?

In development and social policy, health has conventionally been construed in terms other than “as a right,” so it is worth exploring the question of what it would mean for Pilar and her child in Baborigame or Paula in Kenya—or anyone—to claim health as a right. If extreme poverty means that the world controls our lives in ways that leave us bereft of ethical independence, then the assertion of rights to economic and social entitlements, such as health, is a claim on the responsibilities of the state to ensure the conditions under which people can exercise meaningful agency. That claim, in turn, requires shifts in both the resources people have and the barriers they face that shape their ability to exercise choices; in other words, it requires shifting their “opportunity structures.”

But why should justice or fairness call for the state to take steps to equalize access to such entitlements with respect to health and health care when it does not in other areas? Indeed, “fairness” often means “getting what you pay for.” For example, we would not expect to pay USD 50 and be able to purchase the latest smartphone or expect to buy a Ferrari if we only have USD 10,000 to put toward a car. If we buy an economy-class ticket on an airline, we do not expect to get the same service as we would business class. To suggest otherwise seems far-fetched. Why should health, including health care, be different?

Philosopher Amartya Sen provides a useful way of thinking about this. Sen argues that to assert that health (or any other social issue, such as education or housing) is an issue of human rights implies that (1) it is of special importance and (2) it is subject to social influence.¹⁹ That health is of special importance has been persuasively argued on both normative and empirical grounds.

Our intuition that health is of special importance is related to the distinction Kant draws between that which has a price and that which is fundamental to dignity, as I mentioned in Chapter 1. As we discussed in that chapter, within a rights framework, to live with dignity requires being able to pursue a life plan. That, in turn requires preserving a normal range of opportunities in life or, using Sen’s terms, certain “capabilities.” There is abundant evidence that health is critically important for people to be able to maintain productive work and to have the capacity for physical as well as ethical independence in their lives.²⁰ Health is a precondition to exercising basic self-government, and it is inextricably connected to the capacity to live with dignity. Therefore, health, including health care, cannot be treated as just another commodity to be allocated by the market, such as an airplane ticket or a car.²¹

As an empirical matter, it has often been pointed out that in almost every culture there are greetings, sayings, and rituals that highlight the special significance people place on health. For example, as Jonathan Mann noted in the mid-1990s, in virtually every language, toasts are commonly raised “to your health,” and expressions exist equivalent to my own grandmother’s constant refrain, “So long as you have your health.”²²

The second requirement Sen sets out for thinking about health as a right is that it be subject to social influence. We cannot claim a right to beauty, grace, or musical aptitude because they are largely matters of genetics, fate, or personal effort. Consider, for example, Yo-Yo Ma’s ability to play the cello, Francisco de Goya’s creative genius, Lionel Messi’s soccer talent, Serena Williams’s tennis skills, or Wislawa Szymborska’s poetic voice. We don’t have rights to those talents, and indeed they are commonly called gifts or giftedness. Rights can only be achieved through social arrangements, which shows that such arrangements are not optional but necessary for us to enjoy our dignity fully. Think of the right to a fair trial or the right to fair and free elections, for example. These are matters of social institutions and arrangements—they cannot be achieved through personal effort or talent; they are subject to external social forces and they require public commitments. The same applies to a right to health.

Some people would say that it is silly to talk about a right to health, as so much of good health is indeed a matter of genetics, personal behavior, or simply luck. That is true—and it is precisely for this reason that there is no human right to be healthy under international or any national law. And in many countries, including the United States, there is still no acknowledgment of a right to health at all. But under international law, the right to health is phrased as the right to “the highest attainable standard of physical and mental health,” which as noted earlier presumes both individual differences and societal differentiation based on resource availability.²³

However, as noted, the “right to health” under international law, as set out in the ICESCR and elsewhere, does extend beyond health care. Often when we think of obligations relating to health, we think of medical care. But in fact, the reasons people are able to be healthy are generally much more related to public health interventions—such as clean water, sanitation, nutritional measures, and control of occupational hazards—than to care received at a hospital or local health clinic. As was evident in Baborigame, this is particularly true for children. Unsafe drinking water, inadequate availability of water for hygiene, and a lack of access to sanitation contribute to about 1.5 million child deaths each year and account for almost 90 percent of deaths from diarrhea.²⁴ These conditions also contribute to the spread of infectious disease, and of the more than seven and a half million children who died before their fifth birthday in 2010 almost two-thirds died of preventable infectious causes.²⁵

These public health interventions are frequently invisible compared to medical interventions—unless you are in a country or place, such as Baborigame in the early 1990s, that does not have them, when that becomes painfully apparent. Just as with medical care, these public health interventions require institutional arrangements and societal commitments. They cannot be achieved by individuals acting alone. Consequently, it makes sense that these “preconditions to health” or “underlying determinants” are part of the right to health.

Leveling the Playing Field and a Minimum Threshold Level

As in Baborigame, extreme poverty frequently manifests itself as lack of access to the most basic preconditions of health, as well as access to care. The consequences of considering health and other ESC issues as rights are that the state then has a duty to “level the playing field” in terms of access to basic preconditions of health and care. These are not simply conditions that can be left to the market. A right to health does not call for equalization of all outcomes, or all incomes, though, and in Chapter 7 we discuss in much greater depth the extent to which applying human rights frameworks to health demands substantive equality.

In addition to a commitment toward equalizing access and entitlements, however, there is also an obligation on the part of the state to provide certain minimum standards to the entire population. The duty to provide such a minimum threshold level is not subject to progressive realization under international law or certain national jurisprudence; it is an immediate obligation that stems from what is necessary to protect the dignity of the most disadvantaged members of society.

The concept of an “existential minimum” or “vital minimum,” including access to food, housing, and social assistance, as well as to health care, for the worst off was set out early in the jurisprudence of the German constitutional court, and is tied to the concept of human dignity. It has subsequently been adopted by constitutional courts in a number of South American and European countries. As in Germany, which linked the notion of a “vital minimum” to the purposes of the state, in Colombian constitutional jurisprudence, the notion of a “vital minimum” (mínimo vital) has also been explicitly tied to the political formulation of Colombia as a “social state of law” (estado social de derecho) under the 1991 constitution, and the protection of human dignity. Thus, through social protection systems and otherwise, these states have a legal, not just moral, obligation to ensure a minimum threshold, which is necessary to enable human dignity.

In international human rights law, the UN Committee on Economic, Social and Cultural Rights (CESCR) has also adopted the notion of a minimum core content as being both essential to enabling individuals to live with dignity as well as for the appropriate understanding of ESC rights as real rights.²⁶ The CESCR has articulated the minimum core in different ways over the years. In its third General Comment, in 1990, deprivations of a significant number of citizens of “minimum essential levels” of ESC rights under the ICESCR, including essential foodstuffs, essential primary health care, basic shelter and housing, and the most basic forms of education, would be a presumptive violation of state obligations. In CESCR’s General Comment 14, issued in 2000, the “basic obligations” of states’ parties to the ICESCR with respect to the right to health in particular are far more extensive and also include measures relating to equitable distribution of health facilities, goods and services, and national plans of action with respect to health.²⁷

The concept as well as the application of a minimum core content in international human rights has received scholarly critique for, among other things, its lack of ambition and clarity.²⁸ Nevertheless, a legal obligation to provide a vital minimum as a matter of right is essential if we hope to begin to transform conceptions of prerequisites for dignity as well as the duties of the welfare state or “social state of law.”

Advances in Rethinking ESC Rights, Especially Health Rights

Accepting a threshold minimum is only part of a larger reconceptualization of state obligations to ensure ESC rights, including the right to health. The twenty-plus years since Vienna have witnessed astounding progress in the evolution and elucidation of international norms relating to the right to health in particular, as well as to ESC rights more generally. According to the World Health Organization (WHO), every country in the world has now ratified at least one treaty containing health-related rights.²⁹ Treaty-monitoring bodies have issued important interpretations of norms relating to health rights, including Article 12 of the ICESCR, which are clarificatory, if not binding.³⁰

The groundbreaking UN Convention on the Rights of Persons with Disabilities, together with significant Additional Protocols to the American Convention on Human Rights and the African Charter on Human and People’s Rights, have entered into force. Further optional protocols to various treaties, including the ICESCR, now permit quasi-judicial petitions to challenge violations of health and other ESC rights in cases where domestic remedies are inadequate. Conference declarations and other official outcome documents, resolutions from the Human Rights Council, and reports of UN Special Rapporteurs (or independent experts) have also elucidated standards relating to aspects of health and other ESC rights, even though they are not “hard law.”³¹

Institutional commitment to HRBAs to health and development has also greatly expanded among agencies. Intergovernmental agencies, including UNICEF, UNDP, and the WHO, now have units devoted to rights-based analysis, policies, and programming. Some donors, as well as NGOs and national governments, have explicitly adopted HRBAs with respect to issues varying from sexual and reproductive health to water and sanitation. And in 2013, the WHO published a monograph collecting evidence regarding the effects of HRBAs on women’s and children’s health.³²

At the domestic level, many recently enacted or reformed constitutions, such as Kenya’s 2010 constitution, explicitly include the right to health. Further, in Nepal and elsewhere governments are enacting health policies that refer explicitly to rights principles; and where there are gaps, courts are enforcing access to entitlements. In cases from South Africa to India, and Costa Rica to Colombia,³³ we have increasing examples of the enforceability of health and related rights. Beyond enforcing individual entitlements to care and preconditions, courts are transforming health policies—whether in relation to HIV/AIDS medications in South Africa, maternal-child health programming and food policy in India, or the structure of the health system in Colombia.³⁴ These judgments are having impacts both material and symbolic on real people’s lives. Coupled with social action and political mobilization, judicial rulings are permitting members of marginalized groups—from persons living with HIV/AIDS (PLWAs) to transgender people—to conceive of themselves as fully human subjects whose demands are underpinned by notions of legal, as well as political, entitlement.

Further, health rights advocacy has not been limited to formal legal forums. In addition to pressing for international and domestic law reform and judicial advances, many human rights NGOs—especially in the global South—have been increasingly active in educational and political mobilizing campaigns around health and other ESC rights in their countries. Issues ranging from water privatization to the impacts of trade agreements on access to medicines are now being fought by NGOs as human rights issues, when in the past they would have been mere “policy issues.”

Moreover, coalitions that include 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 their product and labor as they wish and can. That does not show equal concern for everyone. Anyone impoverished through that system is entitled to ask: ‘There are other more regulatory and redistributive sets of laws that would put me in a better position. How can government claim that this system shows equal concern for me?’”⁴² Moreover, as Cass Sunstein points out: “Those who denounce state intervention are the ones who most frequently and successfully invoke it. The cry of laissez faire mainly goes up from those who, if really ‘let alone,’ would instantly lose their wealth-absorbing power.”⁴³ All politics are coercive, and it is most often the powerful who benefit from the way in which a given state is choosing to exert its regulatory power.

This need not be our understanding of the conditions necessary to exercise rights and live with dignity. For example, the Colombian Constitutional Court has articulated that the “social state of law” (estado social de derecho) set out in its 1991 constitution was formulated as it became clear “the extent to which human beings are not really free or equal due to natural and social limitations, among which the economic ones stand out. The realization of freedom and equality require measures, actions, entitlements and services that a person by herself cannot achieve. The democratic state thus evolved from a liberal democratic state to a social democratic state, animated by the purpose of ensuring that the material prerequisites of freedom and equality are effectively guaranteed.”⁴⁴ Similarly, the South African Constitutional Court, writing of the commitments undertaken through its visionary 1994 constitution, stated: “Millions of people are living in deplorable conditions and great poverty…. These conditions already existed when the Constitution was adopted and a commitment to address them and to transform our society into one in which there will be human dignity, freedom and equality, lies at the heart of our new constitutional order. For as long as these conditions continue to exist that aspiration will have a hollow ring.”⁴⁵ And as early as the 1970s, the Indian Supreme Court stated, “The mandate of the Constitution is to build a welfare society in which justice—social, economic and political—shall inform all institutions of our national life. The hopes and aspirations aroused by the Constitution will be belied if the minimum needs of the lowest of our citizens are not met.”⁴⁶ Thus, the narrative of rights, and of dignity, in these countries, allows courts to assess laws and policies in ways that ensure attention is provided to the most disadvantaged.⁴⁷

As noted, the United States, by contrast, has been among the staunchest of opponents to recognizing ESC rights at the federal level.⁴⁸ Although at the state level, the right to education has been advanced through courts and social movements, the United States notably does not recognize a right to health care or health, and it famously frames specific entitlements to health care in terms of an abstract right to “privacy.”⁴⁹ For example, in the United States, a woman’s right to an abortion is based on protecting her “personal dignity and autonomy” considered in a vacuum, divorced from the wider social and economic conditions of a woman’s life.⁵⁰ If a poor woman cannot afford to pay for an abortion, the U.S. Supreme Court has held that the government has no obligation to subsidize it. Further, not a penny of the Affordable Care Act can be allocated to abortion services. And the preclusion of federal funding to subsidize poor women’s abortions is probably one of the single greatest barriers to care and contributors to late-term abortions by poor, adolescent, and marginalized women.⁵¹

The narrative of abortion as a private decision based on personal, “intimate suffering” also illustrates how the framing of rights issues has implications for public health responses. When rights frameworks fail to recognize the real differences in power that poverty and other social conditions impose on people’s autonomy to make choices about their well-being, health issues become, as Lynn Freedman writes, “Strictly individual problems conceived of as ‘risk factors’ to be treated with education in strategies of avoidance. Thus as the legal language imposes deeper and deeper constrictions on our expectations of entitlement and our understanding of justice, the corresponding health debate becomes more and more impoverished as well.”⁵²

Reframing Global Poverty and Development from a Rights Perspective

If a rights perspective changes the calculus of what we—and the state—owe the most disadvantaged within our own societies, it also changes how we think about what we owe fellow human beings at the global level. As I discuss at length in Chapter 8, a great deal of extreme poverty in the world and deprivations of economic and social rights more generally are determined by decisions taken beyond national borders. Just as it is arbitrary that institutional arrangements within a country systematically favor certain classes over others, it is also arbitrary—if historically determined—that global institutional arrangements systematically deprive populations in certain countries of basic human rights. Thomas Pogge argues, “Severe poverty should be classified as a human rights violation” because “it is a foreseeable and avoidable effect of how the world economy is currently structured [which] foreseeably produces avoidable human rights deficits on a massive scale.⁵³ Development is generally thought of as an affirmative act of “giving aid.” But Pogge asks us to rethink our view of causation to see how the rules of the global game systematically disadvantage some countries and the poorest people within those countries, with foreseeable health consequences.

In classic development thinking, poverty has been understood in terms of income poverty, as a generic shortage of income. Generally it has been defined as less than USD 2 a day (according to purchasing power); and extreme poverty as less than USD 1 a day, although more recently as less than USD 1.25 a day. According to these measures, approximately a billion people live in extreme poverty around the world. And recent studies have shown that 72 percent of the “bottom billion” now live in middle-income countries, notably in India and China.⁵⁴

As the traditional view of poverty did not consider context or ability to convert income into access to food, education, housing, and health care, the formula was simple: increase jobs and income, and it will be better for the country—and poverty will be reduced. However, over the last fifty years, some schools of economics have focused on the global system and the relationship of “peripheral” to “central” economies, which historically established a perpetual cycle of dependency.⁵⁵ And the path out of such cycles goes far beyond merely creating jobs, as these will pay wages that allow for increasingly less purchasing power within their countries; rather, the structures of dependency, including financial transaction regulations, need to be fundamentally altered.

In recent decades, development thought and practice have come to focus on poverty reduction in new ways, including “human development” and HRBAs. Amartya Sen, the philosopher who is the father of human capabilities theory, first introduced the idea of human development, and of poverty as a series of “unfreedoms.” Severe poverty, as discussed at the beginning of this chapter, means a lack of freedom to make choices over one’s life, and extreme poverty is an accumulation of unfreedoms that translates into an inability for self-government and ethical independence. In turn, human development is usually defined as the expansion of capabilities and freedoms, or the increase of the ability to “be and do” what one wishes.⁵⁶ Income, in this view, is not an end in itself but a means to expanding choices, and only one of several. The UNDP issues annual human development reports which define human development as enlarging people’s choices and set out the most critical requirements for expansion of choices as living a long and healthy life, being educated, and having access to resources needed for a decent standard of living.

An HRBA to development is consistent with a human-development approach in terms of the goal of expanding choices or agency. However, in a rights framework, lack of access to basic health facilities, education, or housing are understood as violations of obligations to ensure minimum essential levels of different rights, for which states should be held accountable as duty-bearers. Just as there is an essential minimum in domestic contexts, in the context of international development policies, including antipoverty strategies, CESCR has stated that the core obligations for ESC rights “establish an international minimum threshold that all development policies should be designed to respect.”⁵⁷

The dynamic of duty-bearer and claims-holder in a rights framework underscores how extreme poverty and the attendant violations of rights are relational. As I discuss throughout this book, those relations are based on discrimination, exclusion and stigma, as well as access to certain endowments, that perpetuate people’s deprivation and their lack of control over their lives. And the opportunity structures that they create vary. For example, Paula in Kenya faced different limitations on her choices than Gabriela did in Mexico, which in turn was different from the ways in which Redit’s choices were restricted in rural Ethiopia after her mother died.

The UN General Assembly adopted the Millennium Declaration in September 2000, which attempted to unify the global development agenda around the idea of “people-centered development” and the eradication of extreme poverty. The next year, the UN Secretary General released the “Road Map,” a plan for implementing the Millennium Declaration that included the Millennium Development Goals (MDGs), which subsequently became the blueprint for global development for the next fourteen years.