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The human right to health and the struggle for recognition

  • PATRICK HAYDEN

Abstract

Persistent health inequalities exist globally, affecting high-income countries and blighting the developing world. Health inequalities currently are one of the greatest challenges facing realisation of the human right to health. This article argues that the struggle for the right to health in the face of such inequalities requires embracing three critical considerations: redistribution, representation, and recognition. While the analysis of the right to health has been formulated predominantly around theories of distributive justice, I suggest that a more normatively compelling account will link the politics of economic redistribution to the politics of sociocultural recognition. A recognition approach, which views rights claims as grounded on the vulnerability of the human condition, can show how rights are emergent in political action and that the ability to claim and exercise the human right to health is contingent upon recognition of diverse sociopolitical statuses. From this perspective, there are no ‘neutral’ constructions of the rights-bearing subject and conflict between different political framings of the right to health is a consequence of the struggle for recognition. This theme is illustrated by comparing conservative, affirmative, and transformative processes of recognition in the struggle for access to essential antiretroviral medicines by South Africa's Treatment Action Campaign.

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1 Arendt, Hannah, The Human Condition (Chicago: The University of Chicago Press, 1958), pp. 180–1.

2 Commission on Social Determinants of Health, Closing the Gap in a Generation: Health Equity through Action on the Social Determinants of Health (Geneva: World Health Organization, 2008). For a study of health inequalities in the UK, see Thomas, Bethan, Dorling, Danny, and Smith, George Davey, ‘Inequalities in Premature Mortality in Britain: Observational Study from 1921 to 2007’, British Medical Journal, 341 (2010), pp. 16.

3 See Farmer, Paul, Pathologies of Power: Health, Human Rights, and the New War on the Poor (Berkeley: University of California Press, 2003).

4 World Health Organization, World Health Report 2006: Working Together for Health (Geneva: World Health Organization, 2006).

5 World Health Organization, Medicines Strategy: Countries at the Core, 2004–2007 (Geneva: World Health Organization, 2004).

6 Lopez, Alan D. et al. , (eds), Global Burden of Disease and Risk Factors (New York: Oxford University Press and The World Bank, 2006).

7 Turner, Bryan S., Vulnerability and Human Rights (University Park, PA: The Pennsylvania State University Press, 2006), p. 41.

8 Constitution of the World Health Organization, {http://www.who.int/governance/eb/constitution/en/index.html} accessed 24 August 2010.

9 Toebes, Brigit, ‘Towards an Improved Understanding of the International Human Right to Health’, Human Rights Quarterly, 21:3 (1999), pp. 661–79.

10 Convention on the Elimination of All Forms of Discrimination Against Women (1979, Art. 12).

11 Convention on the Rights of the Child (1989, Art. 24).

12 Convention on the Rights of Persons with Disabilities (2006, Art. 26).

13 International Convention on the Elimination of All Forms of Racial Discrimination (1965, Art. 5).

14 Toebes, ‘Towards an Improved Understanding’, p. 662.

15 Committee on Economic, Social and Cultural Rights, ‘General Comment No. 14: The Right to the Highest Attainable Standard of Health’, UN Doc. E/C.12/2000/4 (11 August 2000), paras 7–13.

16 Shue, Henry, Basic Rights: Subsistence, Affluence, and US Foreign Policy, 2nd edn (Princeton: Princeton University Press, 1996), p. 34.

17 Committee on Economic, Social and Cultural Rights, ‘General Comment No. 14’, para. 1.

18 Ibid., para. 5.

19 The inadequacies of the traditional dichotomy between negative and positive rights have been widely explored by various critics, including Holmes, Stephen and Sunstein, Cass R., The Cost of Rights (New York and London: Norton, 1999), and Waldron, Jeremy, Liberal Rights: Collected Papers 1981–1991 (Cambridge: Cambridge University Press, 1993).

20 Shue, Basic Rights, p. 23.

21 Committee on Economic, Social and Cultural Rights, ‘General Comment No. 3: The Nature of States' Parties Obligations (Art. 2, para. 1 of the Covenant)’, UN Doc. E/E/1991/23 (14 December 1990), para. 10. The Committee also held that states may justify non-fulfilment of core goods and services only by showing that ‘every effort has been made’ to use all available resources to satisfy core obligations ‘as a matter of priority’.

22 The WHO Model List of Essential Medicines was first published in 1977 and is updated every two years. See WHO, ‘Essential Medicines’, {http://www.who.int/medicines/services/essmedicines_def/en/index.html} accessed 14 September 2010.

23 See, for example, Sen, Amartya, Development as Freedom (Oxford: Oxford University Press, 1999).

24 On the notion of human-centred development see Sengupta, Arjun, ‘The Human Right to Development’, in Andreassen, Bard A. and Marks, Stephen P. (eds), Development as a Human Right: Legal, Political and Economic Dimensions, 2nd edn (Mortsel: Intersentia Publishing, 2010), pp. 1344.

25 United Nations Development Programme, Human Development Report 2000: Human Development and Human Rights (New York: Oxford University Press, 2000).

26 World Health Organization, Jakarta Declaration on Leading Health Promotion into the 21st Century (25 July 1997), Preamble.

27 UN Millennium Declaration (8 September 2000), General Assembly Resolution 55/2, {http://www.un.org/millennium/declaration/ares552e.htm} accessed 9 September 2010.

28 Pogge, Thomas, Politics as Usual: What Lies Behind the Pro-Poor Rhetoric (Cambridge: Polity Press, 2010).

29 See Baxi, Upendra, The Future of Human Rights, 2nd edn (Delhi: Oxford University Press, 2006).

30 Donnelley, Jack, Universal Human Rights in Theory and Practice, 2nd edn (Ithaca, NY: Cornell University Press, 2003), p. 7.

31 Morsink, Johannes, The Universal Declaration of Human Rights: Origins, Drafting, and Intent (Philadelphia: University of Pennsylvania Press, 2000), p. 325.

32 See Hegel, G. W. F., The Phenomenology of Spirit, trans. Miller, A. V. (Oxford: Oxford University Press, 1977), chap. 4. A useful discussion of Hegel on rights and recognition is Costas Douzinas, The End of Human Rights (Oxford: Hart Publishing, 2000), chap. 10.

33 Haacke, Jürgen, ‘The Frankfurt School and International Relations: On the Centrality of Recognition’, Review of International Studies, 31:1 (2005), pp. 181–2. For further critical discussion see Thompson, Simon, The Political Theory of Recognition: A Critical Introduction (Cambridge: Polity Press, 2006), and McNay, Lois, Against Recognition (Cambridge: Polity Press, 2007).

34 Honneth, Axel, ‘Redistribution as Recognition: A Response to Nancy Fraser’, in Nancy Fraser and Axel Honneth, Redistribution or Recognition? A Political-Philosophical Exchange (London and New York: Verso, 2003), p. 142.

35 Evans, Tony, ‘A Human Right to Health?’, Third World Quarterly, 23:2 (2002), pp. 199200.

36 See Darby, Derrick, Rights, Race, and Recognition (Cambridge: Cambridge University Press, 2009), pp. 26–9.

37 Arendt, Hannah, The Origins of Totalitarianism, rev. edn (New York: Schocken Books, 2004), pp. 353–5.

38 See Arendt, The Human Condition, pp. 176, 188, 222. For an extended analysis of Arendt's connection to recognition theory see Markell, Patchen, Bound by Recognition (Princeton and Oxford: Princeton University Press, 2003).

39 Inherent (or natural) rights sceptics might argue that a recognition theory of rights is unable to provide a satisfactory account of the (intrinsic) worth of human beings, and thus is unable to offer a secure normative foundation for critiquing injustice. Defenders of a recognition theory of rights may counter that intrinsic moral worth itself, independently of active social recognition, does not give rise to the status of right holder. Without the mutual acknowledgement by a community of others of one's equal standing as a human person, one is without rights insofar as human rights constitute a social practice formed through reciprocal recognition within the political realm. As products of social recognition, rights confer an effective political status that thereby acknowledges the justice (or conversely injustice) of certain ways of acting and being treated. The recognition approach thereby (re)politicises both rights and human status, since these can be won or lost within the continuous dynamics of recognition and misrecognition in the political realm. The danger of an inherent-rights approach is that it overlooks complex ways that inequalities in status have been and continue to be essentialised, that is, depoliticised. A fuller articulation and defense of some of these points is found in Darby, Rights, Race, and Recognition, chap. 5.

40 Honneth, Axel, The Struggle for Recognition: The Moral Grammar of Social Conflicts (Cambridge: Polity Press, 1995), p. 45.

41 Ibid., p. 44, emphasis added.

42 Ibid., p. 131ff. Honneth singles out violation of the body, denial of rights, and denigration of ways of life as the key forms of disrespect. See Honneth, Axel, Disrespect: The Normative Foundations of Critical Theory (Cambridge: Polity Press, 2007), Part I.

43 Darby, Rights, Race, and Recognition, p. 132.

44 Turner, Vulnerability and Human Rights, p. 25.

45 Ibid., p. 27.

46 Nancy Fraser, ‘Social Justice in the Age of Identity Politics: Redistribution, Recognition, and Participation’, in Fraser and Honneth, Redistribution or Recognition?, pp. 29, 63, 51.

47 See Fraser, Nancy, ‘Heterosexism, Misrecognition, and Capitalism: A Response to Judith Butler’, in Olson, Kevin (ed.), Adding Insult to Injury: Nancy Fraser Debates Her Critics (London and New York: Verso, 2008), p. 59.

48 Fraser, Nancy, Scales of Justice: Reimagining Political Space in a Globalizing World (Cambridge: Polity Press, 2008), p. 17.

49 Ibid., pp. 17–18.

50 Ibid., pp. 19–20, 144.

51 Fraser, ‘Social Justice in the Age of Identity Politics: Redistribution, Recognition, and Participation’, in Fraser and Honneth, Redistribution or Recognition?, p. 10, fn. 39.

52 Fraser, Scales of Justice: Reimagining Political Space in a Globalizing World, pp. 44–5.

53 For more on this theme see Vincent, Andrew, The Politics of Human Rights (Oxford: Oxford University Press, 2010), chap. 7.

54 Frantz Fanon developed a scathing critique of colonialism's misrecognition of embodied colonised subjects in similar terms. See Fanon, , Black Skin, White Masks (New York: Grove Press, 1967), where Fanon writes of ‘a feeling of nonexistence’ and ‘suffering in his body’ as a result of misrecognition. In the face of misrecognition, he asserts there ‘remained only one solution: to make myself known’ (p. 115, emphasis added).

55 For an excellent account of historical struggles for human rights see Ishay, Micheline R., The History of Human Rights: From Ancient Times to the Globalization Era, 2nd edn (Berkeley and Los Angeles: University of California Press, 2008). See also Bob, Clifford (ed.), The International Struggle for New Human Rights (Philadelphia: University of Pennsylvania Press, 2009). In these otherwise valuable works on the emergence of new rights claims in human rights movements, no mention is made of the normative grounding of such claims in the need for social recognition.

56 For more on the alternative globalisation movement see el-Ojeili, Chamsy and Hayden, Patrick, Critical Theories of Globalization (Basingstoke: Palgrave Macmillan, 2006), chap. 4.

57 I adapt this question from Baxi, Upendra, ‘The Place of the Human Right to Health and Contemporary Approaches to Global Justice’, in Harrington, John and Stuttaford, Maria (eds), Global Health and Human Rights: Legal and Philosophical Perspectives (London and New York: Routledge, 2010), p. 14.

58 See, for example, Turiano, Laura and Smith, Lanny, ‘The Catalytic Synergy of Health and Human Rights: The People's Health Movement and the Right to Health and Health Care Campaign’, Health and Human Rights, 10:1 (2008), pp. 137–47.

59 Hunt, Paul, ‘Right to the Highest Attainable Standard of Health’, Lancet, 370 (2007), p. 369.

60 Mann, Jonathan M., ‘Human Rights and AIDS: The Future of a Pandemic’, in Mann, Jonathan M., Gruskin, Sofia, Grodin, Michael A., and Annas, George J. (eds), Health and Human Rights: A Reader (New York: Routledge, 1999), p. 222.

61 Mann, Jonathan M., ‘Afterword’, in Lawrence O. Gostin and Zita Lazzarini, Human Rights and Public Health in the AIDS Pandemic (New York and Oxford: Oxford University Press, 1997), pp. 168–9.

62 Honneth, Disrespect, p. 136.

63 Constitution of the Republic of South Africa (1996), {http://www.constitutionalcourt.org.za/site/theconstitution/thetext.htm} accessed 18 September 2010.

64 Interim Constitution of South Africa, 1993, Schedule IV(II), {http://www.constitutionalcourt.org.za/site/constitution/english-web/interim/schedules.html#sched4} accessed 18 September 2010.

65 For a detailed account of the intersection of racial discrimination, poverty, and ‘medical apartheid’ in South Africa from 1948-94, and their lingering legacy for the post-apartheid population, see Chapman, Audrey R. and Rubenstein, Leonard S. (eds), Human Rights and Health: The Legacy of Apartheid (Washington, DC: American Association for the Advancement of Science, 1998).

66 See Fraser, Nancy, Justice Interruptus: Critical Reflections on the ‘Postsocialist’ Condition (New York and London: Routledge, 1997), p. 22.

67 Ibid., p. 24.

68 Fraser, Scales of Justice, p. 22.

69 It is worth noting there is some ambiguity in the text of the Constitution regarding its application to non-citizens. While the Constitution's language in the Preamble and Chapter 1 explicitly refers to the legal equality and equal rights of all South African citizens, the Bill of Rights set out in Chapter 2 expressly ‘enshrines the rights of all people in our country’. This phrasing raises the prospect of extending rights, including the right to health care services, to non-citizens who happen to reside in South African territory. Yet such a claim is always susceptible to political contestation and debates about how to frame ‘national membership’. See, for instance, the Constitutional Court's ruling in Khosa and Others v Minister of Social Development and Others, Mahlaule and Another v Minister of Social Development (CCT 13/03, CCT 12/03) [2004] ZACC 11; 2004 (6) SA 505 (CC); 2004 (6) BCLR 569 (CC) (4 March 2004), {http://www.saflii.org/za/cases/ZACC/2004/11.html} accessed 20 March 2011.

70 Ibid.

71 Butler, Judith, Gender Trouble: Feminism and the Subversion of Identity (New York and London: Routledge, 1999), p. xix.

72 Fraser, Scales of Justice, p. 23.

73 Agreement on Trade-Related Aspects of Intellectual Property Rights, Annex 1C of the Marrakesh Agreement Establishing the World Trade Organization, Marrakesh (15 April 1994), {http://www.wto.org/english/docs_e/legal_e/27-trips_01_e.htm} accessed 14 September 2010.

74 Davies, Sara E., Global Politics of Health (Cambridge: Polity Press, 2009), p. 162; and Pogge, Politics as Usual, p. 20.

75 Cullet, Philippe, ‘Human Rights and Intellectual Property Protection in the TRIPS Era’, Human Rights Quarterly, 29:2 (2009), pp. 403–30.

76 Cullet, Philippe, ‘Patents and Medicines: The Relationship between TRIPS and the Human Right to Health’, in Gruskin, Sofia, Grodin, Michael A., Marks, Stephen P. and Annas, George J. (eds), Perspectives on Health and Human Rights (New York and London: Routledge, 2005), pp. 179202.

77 On the conflict between TRIPS and international human rights law see Sub-Commission on the Promotion and Protection of Human Rights, ‘Intellectual Property Rights and Human Rights’, UN Doc. E/CN.4/Sub.2/Res/2000/7 (2000).

78 Some flexibilities in TRIPS were acknowledged by the 2001 Doha Declaration, which led to adoption of a 2005 Annex attached to TRIPS concerning limited exemptions from patent regulations, and the use of parallel importing and compulsory licensing; the Annex has yet to be approved by the required two-thirds of WTO member states. World Trade Organization, Declaration on the TRIPS Agreement and Public Health, Doha, Qatar (14 November 2001), paras 4 and 2, {http://www.wto.org/english/thewto_e/minist_e/min01_e/mindecl_trips_e.htm} accessed 14 September 2010.

79 Fraser, Scales of Justice, p. 44. See also Fraser, Nancy, ‘Recognition, Redistribution and Representation in Capitalist Global Society: An Interview with Nancy Fraser’, Acta Sociologica, 47:4 (2004), pp. 374–82.

80 Fraser, Scales of Justice, pp. 23–4.

81 UNAIDS, AIDS Epidemic Update: December 2009 (Geneva: UNAIDS and WHO, 2009), pp. 21, 27.

82 UNAIDS, AIDS Epidemic Update, p. 7. See also WHO, United Nations Children's Fund, UNAIDS, Towards Universal Access: Scaling up Priority HIV/AIDS Interventions in the Health Sector (Geneva: WHO, 2009).

83 Davies, Global Politics of Health, p. 167. See also Joseph, Sarah, ‘Pharmaceutical Corporations and Access to Drugs: The “Fourth Wave” of Corporate Human Rights Scrutiny’, Human Rights Quarterly, 25:2 (2003), pp. 425–52.

84 For more information on this and other TAC campaigns, consult the group's web site at: {http://www.tac.org.za/community/}

85 van der Vliet, Virginia, ‘South Africa Divided against AIDS: A Crisis of Leadership’, in Kauffman, Kyle D. and Lindauer, David L. (eds), AIDS and South Africa: The Social Expression of a Pandemic (Basingstoke: Palgrave Macmillan, 2004), pp. 4896.

86 Sarah Boseley, ‘AIDS Groups Condemn South Africa's “Dr Garlic”’, The Guardian (6 May 2005), {http://www.guardian.co.uk/world/2005/may/06/internationalaidanddevelopment.southafrica} accessed 17 September 2010.

87 Even after the Constitutional Court ruling, the government restricted the use of donated nevirapine and blocked funds for more than a year from the Global Fund to Fight AIDS. The first drug treatments were not made available until 2005 and, ironically, used more expensive brand-name rather than generic drugs. See Nattrass, Nicoli, Mortal Combat: AIDS Denialism and the Struggle for Antiretrovirals in South Africa (Pietermaritzburg: University of KwaZulu-Natal Press, 2007). The situation is further complicated by the fact that the Constitution's principles (see sections 8(2) and 239) apply not only ‘vertically’ but also ‘horizontally’ to ‘natural and juristic persons’, including private bodies such as corporations. See Ellmann, Stephen J., ‘A Constitutional Confluence: American “State Action” Law and the Application of South Africa's Socioeconomic Rights Guarantees to Private Actors’, in Andrews, Penelope and Ellmann, Stephen J. (eds), The Post-Apartheid Constitutions: Perspectives on South Africa's Basic Law (Johannesburg: Witwatersrand University Press, 2001), pp. 444–80.

88 Chigwedere, Pride, et al. , ‘Estimating the Lost Benefits of Antiretroviral Drug Use in South Africa’, Journal of Acquired Immune Deficiency Syndromes, 49:4 (2008), pp. 410–15. See also Nattrass, Nicoli, ‘AIDS and the Scientific Governance of Medicine in Post-Apartheid South Africa’, African Affairs, 107:427 (2008), pp. 157–76.

89 Heywood, Mark, ‘South Africa's Treatment Action Campaign: Combining Law and Social Mobilization to Realize the Right to Health’, Journal of Human Rights Practice, 1:1 (2009), p. 17.

90 The situational specificity of PMTCT continues into related issues. For instance, in many countries young people under the age of 18 require parental consent in order to obtain HIV/AIDS diagnostic testing. Consent may be withheld for various social, cultural or religious reasons, and diagnosis of HIV status may then serve as grounds for discrimination or denial rather than meaningful treatment.

91 Turner, Vulnerability and Human Rights, p. 27.

92 Heywood, ‘South Africa's Treatment Action Campaign’, p. 18.

93 Ibid., pp. 17–18.

* I wish to thank Richard Beardsworth, Tony Lang, Paul Voice, and the journal's anonymous reviewers for their helpful comments on an earlier version of this article. Research for this article was funded by the Carnegie Trust for the Universities of Scotland.

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