Justifying the burden

If the right to health is a positive right to those aspects of health that are socially controllable, it could still be reasonably argued that the costs to secure the right for each and every individual would bear excessively on duty-bearers, particularly within their capacity to meet other human rights obligations and other important human interests. This view is one expressed, notably, by James Griffin. Griffin argues that the right to health cannot be a right, literally, to health, and that neither can it be a right to health care. He agrees that the right to health must be “a right to the sorts of welfare provision that supports health.” However, it is precisely this 57 formulation of the right, which he finds problematic. For Griffin, such a

Ibid, p. 92

55

Nickel, J.W. Supra n. 7, pp. 10, 38-41; Beitz, C.R. Supra n. 17, p. 128; Griffin, J. Supra n. 7, pp.

56

101-104; and Raz, J. “Human Rights without Foundations.” In The Philosophy of International Law,

Besson, S. and J. Tasioulas (eds.)2010, p. 336. Also, UN International Covenant on Economic, Social and Cultural Rights (UN ICESCR from here on), Article 2

Griffin, J. Supra n. 7, p. 99

formulation gives rise to obligations that are “ridiculously lavish” since they do not 58 appear to set limits to what is required by the duty-bearer, particularly given necessary expenditure on other important, worthy social goods. If justification of the burdens is to be an existence criterion of human rights, then the right to health, according to Griffin, would fail as such.

The critique that the right to health cannot be a true human right because it is overly burdensome is by now very familiar. But whilst it is accepted in the idea of human rights so far presented that a burdensomeness constraint must be satisfied as a condition to endorsing a human right, is Griffin’s assertion that the burdens generated by the right to health are ridiculously lavish still convincing when applied to the right to health in a minimal sense? There are several bases upon which this kind of critique can be challenged.

Firstly, the notion that the prevailing human, social and economic constraints faced in the world today render the grim fact that there are simply not sufficient resources to satisfy even minimal health for all is, in the words of Sen, “an empirical 59 observation of some interest on its own.” Thomas Pogge, for instance, is just one 60 critic of such a notion and claims that this kind of pessimism about the resources available to satisfy economic and social needs is unjustified. In justifying a right to be free from poverty, Pogge has suggested that “[i]t would not cost us much to eradicate the deprivations [such as malnutrition, lack of access to health services,

Ibid, p. 100

58

“Richard Rorty in his UNESCO lecture entertained the prospect that the rich parts of the world

59

may be in the position of somebody proposing to share her one loaf of bread with a hundred starving people. Even if she does share, everybody, including herself, will starve anyway. So she may easily be guilty ... either of self-deception or hypocrisy.” Rorty, R. “Who Are We? Moral Universalism and Economic Triage.”(1996) quoted in Tasioulas, J. Supra n. 1, p. 81

Sen, A.K. Supra n. 13, p. 383

adequate shelter, safe drinking water and basic sanitation] — perhaps around 1 percent of the disposable incomes of the most affluent tenth of humankind.” 61 Central to Pogge’s argument then is that the needs-deficit is an issue of global justice. But the kind of global redistribution Pogge has in mind may still violate 62 the principle of burdensomeness as it has been presented so far. Inasmuch as all individuals are both right holders and duty-bearers, as holders it may be in our interests that the right be as extensive as possible, but as duty-bearers (or as contributors to whichever system fulfils the right) it may be more desirable to limit the burdens, at least to the extent that they do not become, as Nickel puts it, “economically destructive.” Whether the question of burdensomeness is framed 63 with respect to the economic and social status quo or with respect to a situation where resources are [more] equally distributed therefore leaves open the answer. Nevertheless, even if we assume, at least at this point in time, that the kind of redistribution required would generate burdens that the majority of individuals would find unacceptable, the test of burdensomeness does not auto-fail at this point.

Because what is being tested is whether the right to health can exist without generating onerous burdens on the duty-bearer, it is useful to compare the right to health to other human rights that are standardly accepted to ‘exist.’ How persuasive is the argument that the burdens generated by the right to health are so much more

Pogge, T. “Human Rights and Human Responsibilities.” In Global Justice and Transnational Politics:

61

Essays on the Moral and Political Challenges of Globalisation, de Greiff, P. and C. Cronin (eds.) 2002,pp. 151-152

Pogge, T. “Recognized and Violated by International Law: The Human Rights of the Global

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Poor.” (2005a) Peter Singer makes a similar argument when commenting on his book: “We need to commit ourselves to justice and to righting inequities, whether you’re talking about hunger, climate, or global health.” Daar, A. and P. Singer. The Grandest Challenge: Taking Life-Saving Science from Lab to Village. 2011

Nickel, J.W. Supra n. 7, p. 78

lavish and excessively burdensome on the duty-bearer than those generated from, say the right to liberty (or other civil and political rights), so that the former cannot be cogently conceived as a human right whilst the latter absolutely can? Again, this argument rests on an assumption about the positivity and negativity of the primary obligations underlying each set of rights; an assumption made famous by Maurice Cranston. Cranston proceeds from the argument that for human rights to be coherent they must be accomplishable for all, and even with the best of efforts, it would not be feasible to realise many economic and social rights for all, particularly for developing societies, which violates the ‘ought’ implies ‘can’ maxim. This, according to Cranston, is not the case with respect to civil and political rights, which are “not difficult to institute” since “[f]or the most part, they require governments, and other people generally, to leave a man alone.” For Cranston therefore, it does 64 not make sense to regard economic and social provisions as a matter of universal human entitlement.

Whilst it is not necessary to relay the accounts which convincingly reject Cranston’s claims, of which there are many, the important point to draw out of these 65 accounts is that full realisability need not be what a recognised human right must demand. Indeed if full realisability were a necessary condition for any rights, “then not just social and economic rights, but all rights — even the right to liberty — would be nonsensical, given the infeasibility of ensuring the life and liberty of all against transgression.” Leaving ‘a man alone’ has never been particularly easy or 66 inexpensive. But the retort on behalf of Cranston may be that, on its own, an assertion that “non-realisation does not, in itself, make a claimed right a non-

Cranston, M. “Are There Any Human Rights?”(1983) p. 13

64

See, e.g., Shue, H. Supra n. 33; and Gewirth, A. Supra n. 45

65

Sen, A.K. Supra n. 13, p. 384

right” reveals very little about where along the scale between zero realisation and 67 full realisation an obligation to fulfil the right to health should lie. It has been argued that the right is a positive right and should provide access to some standard of health; the “highest attainable” standard of health in its international legal sense. 68 If the right to health is interpreted as guaranteeing a standard of health that although is not full realisation but something close to it, (which is the connotation the ‘highest attainable’ term often acquires) the assertion that full realisation need not be what a bona fide human right demands is not a very successful rebuttal to the lavishness critique. Admittedly, on this interpretation, Cranston’s argument does seem rather credible. However, the right to health does set limits, as all rights do. And it is in its interpretation alongside limit-setting that provides the final and most persuasive argument as to why the right to health can pass the burdensome test.

Whilst the right to health entails a responsibility upon the duty-bearer to act in some way so that threats to fundamental interests are protected against — health services be provided for those who need and lack them — in order for those obligations to be justified, the acts of the duty-bearer must be conditioned on “additional practical and normative considerations:” considerations, which may serve to alter the 69 obligations of the duty-bearer. Fundamental interests therefore shape the content

Ibid, p. 385

67

The International Covenant on Economic, Social and Cultural Rights, widely considered as the

68

central instrument of protection for the right to health, recognises “the right of everyone to the enjoyment of the highest attainablestandard of physical and mental health.” UN ICESCR, Supra n. 56, Article 12; The Convention on the Rights of the Child recognises “the right of the child to the enjoyment of the highest attainablestandard of health and to facilities for the treatment of illness and rehabilitation of health. States Parties shall strive to ensure that no child is deprived of his or her right of access to such health care services.” Article 24; The Convention on the Rights of Persons with Disabilities: recognises “that persons with disabilities have the right to the enjoyment of the

highest attainable standard of health without discrimination on the basis of disability.” Article 25; and the Constitution of the WHO affirms that “the enjoyment of the highest attainable standard of health is one of the fundamental rights of every human being without distinction of race, religion, political belief, economic or social condition.”

Bilchitz, D. Supra n. 48, p. 78

of the right to health, which is subject to further relevant considerations. These further relevant considerations then shape the content of the obligations, which are now unconditional. They are unconditional because other relevant conditions have been accounted for in their determination.

This scheme obviously has consequences. It could be argued that making an account of these relevant considerations part of the determining-obligations task leaves open the possibility that for some duty-bearers the unconditional obligation would be to realise the right to an extent of zero. Whilst this is theoretically true (these further considerations could render any level of realisation of the right overly burdensome) it is extremely unlikely within the idea of human rights thus presented, specifically, with respect to the importance and minimalist nature of the interests they protect. Nevertheless, these relevant considerations could, and would most probably, require that health be realised to a qualified extent. Precisely, they set limits.

So what are the relevant considerations that may set limits to the right to health? One of the main considerations, if not the main consideration, is the scarcity of resources. Whilst resource scarcity would limit the right most acutely in less developed societies, health needs will most likely outstrip the resources required for meeting them in every society, developed societies included. In determining unconditional obligations, it is therefore necessary to have some understanding of the resources that are available to duty-bearers for fulfilling the right to health. Where along the scale of zero to full realisability the right to health sits will, therefore, be “system relative” and will be subject to the reasonable resource 70 constraints faced by each duty-bearer. The right to health on this interpretation now

Daniels, N. Supra n. 31, p. 145

begins to look something similar to its legal form. The International Covenant on Economic, Social and Cultural Rights (ICESCR) commits its state parties in Article 2(1) to “take steps … to the maximum of its available resources, with a view to achieving progressively the full realisation of the rights recognised in the present Covenant.” The level of health to which the right guarantees is then limited by the 71 maximum resources the duty-bearer has at its disposal. The ‘highest attainable’ standard isn’t then an absolute standard of health to which the right guarantees, it is instead the highest attainable standard of health, given available resources. The highest attainable standard can and will vary. In response to Griffin’s concerns of lavishness, a defender of the minimalist account of the right to health can therefore demonstrate that the obligations generated by it need not bear excessively on the duty-bearer when formulated and constrained appropriately and when framed in terms of the actual, or maximum, resources available. Indeed, this is similar to the minimalist conception Griffin proposes himself. 72