What do human rights bring to discussions of power and politics in health policy and systems?

ABSTRACT

Scholarly interrogations of power and politics are not endemic to the disciplines primarily tasked with exploring health policy and planning in the domestic or global domains. Scholars in these domains have come late to investigating power, prompted in part by the growing focus in domestic and global health research on the intersections between governance, globalization and health inequities. Recent prominent reports in this area increasingly point to human rights as important norms capable of responding in part to power differentials that sustain and exacerbate health inequities. Yet human rights law is not traditionally incorporated into health policy scholarship or education, despite offering important normative and strategic frameworks for public and global health, with distinctive contributions in relation to identifying and challenging certain forms of power disparity. This paper overviews two of these reports and how they see power functioning to sustain health inequities. It then turns to investigate what human rights and the right to health in particular may offer in addressing and challenging power in the health policy context.

KEYWORDS:

• Human rights
• right to health
• power
• global health
• health policy

Introduction

Scholarly interrogations of power and politics are not endemic to the disciplines primarily tasked with exploring health policy and planning in the domestic or global domains. Traditional scholarships associated with these areas tend to focus on the ostensibly less normative domains of health economics, health policy, health management and innovation, and health services.¹ Scholars in these latter fields have come late to investigating power, prompted in part by the growing focus in domestic and global health research on the intersections between governance, globalization and health inequities. This focus has been prompted in part by prominent global health reports which explicitly target the role of power and politics operating at various levels to sustain health inequities (The Lancet-University of Oslo Commission on Global Governance for Health [CGGH], 2014; World Health Organization Commission on Social Determinants of Health [CSDH], 2008). Fascinating scholarly debates have ensued, including within journals dedicated explicitly to health policy and management. From 2014 to 2016, the International Journal of Health Policy and Management published a series of commentaries exploring power in global health. Authors suggested that global health is shot through with power relationships (Lee, 2015), that ‘power is exercised everywhere in global health’ (Shiffman, 2014, p. 297), and indeed, that if the ‘academic arm of global health is to survive’, it is vital to ‘address the role of norms, politics and power in global health head on’ (Ooms, 2015, p. 641). The latter commentary suggested further that the notion that global (and implicitly public) health research lacks normative dimensions is a fallacy, and that ‘a purely empirical evidence-based approach is a fiction’ (Ooms, 2015, p. 643).

The relative dearth of explorations of power in these domains certainly has disciplinary roots in a strongly biomedical perspective in health-care-related domains of research, which tends to focus on ‘the immediate biological, and sometimes behavioural, causes of illness and death’ (CSDH, 2008), rather than on structural causes rooted in politics or power. I have argued previously that the dearth of scholarly investigations of power in global health is not only rooted in a lack of interdisciplinarity in these domains but is also a fundamental part of the social processes within which researchers operate that might render ‘unconscious’ the operation of power in their own scholarly disciplines. Indeed, I argued that delving into these areas requires more than broadening the disciplinary base of global health research to those social sciences with deep traditions of thought in the domains of power, politics and norms, albeit that doing so is a fundamental first step. I argue that it also requires individual and institutional commitments to adopt reflexive, humble and above all else, equitable practices within global health research (Forman, 2016).

In this article, instead of exploring the more personal reflexive work required to identify and address power in health research, I adopt a more disciplinary perspective on what social science traditions in law and human rights in particular might offer to understanding and addressing power in this domain. I suggest that notwithstanding its limitations, the right to health offers important tools to challenge and reconfigure health policy rooted in competing norms that are not conducive to health equity. I first overview key discussions of power in the global health domain that have identified and begun to analyse how power functions to sustain health inequities. I then turn to investigate the extent to which human rights and the right to health in particular offer to both address and challenge power in the health policy context. I close with some thoughts about the way forward for researchers in this area.

Power and politics in global health

Discussions of power in relation to health inequity have come into prominence in the last decade or so as global health policy efforts turn increasingly to address the impact of global governance on health equity and the social determinants of health more broadly. The 2008 World Health Organization Commission on the Social Determinants of Health (CSDH) is explicit in this regard, emphasizing that improving population health depends fundamentally on improving the social determinants of health – ‘the immediate, visible circumstances of people’s lives – their access to health care, schools, and education, their conditions of work and leisure, their homes, communities, towns, or cities’ and the distributions ‘of power, income, goods, and services, globally and nationally’ that affect their chances of leading a flourishing life (CSDH, 2008, p. 1). The CSDH Report views tackling inequitable distributions of power, money and resources as one of three key domains requiring action, alongside improving the conditions of daily life, measuring the problem, evaluating action and raising public awareness about the social determinants of health (2008, p. 2). Responding to power and power differentials are thus central to the Commission’s recommendations:

Any serious effort to reduce health inequities will involve changing the distribution of power within society and global regions, empowering individuals and groups to represent strongly and effectively their needs and interests and, in so doing, to challenge and change the unfair and steeply graded distribution of social resources (the conditions for health) to which all, as citizens, have claims and rights. (CSDH, 2008, p. 18)

In the Commission’s view, resolving these power differentials requires a range of actions including institutionalizing considerations of health equity in policies and programs; ensuring fairer financing of health; guarding against market forces in the provision of education and health care; advancing gender equity and political empowerment; and ensuring good global governance (CSDH, 2008, pp. 10–23).

The 2014 Lancet-University of Oslo Commission on Global Governance for Health (Lancet-Oslo Commission) picks up this focus on power in its exploration of the political origins of health inequity (CGGH, 2014). The Lancet-Oslo Commission identifies what it calls the ‘global political determinants of health’: those ‘norms, policies, and practices that arise from global political interaction across all sectors that affect health’ (CGGH, 2014, p. 630). Power and its asymmetries are central to these determinants, with health equity deemed to increasingly result from ‘transnational activities that involve actors with different interests and degrees of power: states, transnational corporations, civil society, and others. The decisions, policies, and actions of such actors are, in turn, founded on global social norms’ (CGGH, 2014, p. 630). These power differentials play out in a range of policy areas affecting health and requiring improved governance, including ‘economic crises and austerity measures, knowledge and intellectual property, foreign investment treaties, food security, transnational corporate activity, irregular migration, and violent conflict’ (CGGH, 2014, p. 630). Thus, achieving global governance for health requires ‘a fair and equitable global governance system, based on a more democratic distribution of political and economic power that is socially and environmentally sustainable’ (CGGH, 2014, p. 633).

While considerations of power are threaded through the CSDH and Lancet-Oslo reports, both are nonetheless criticised for falling short of recommendations capable of making systemic and radical change (McCoy, 2014; Muntaner, Sridharan, Solar, & Benach, 2009), and for avoiding defining actions capable of rooting out health inequities (de Vos et al., 2014, p. 1379). In the case of the Lancet-Oslo report, while some put this reticence down to an unwillingness to speak ‘truth to power’ (McCoy, 2014),² others consider a lack of interdisciplinary engagement to have impoverished its discussions of power. For example, Marten, Hanefeld, and Smith (2014) suggest that the Lancet-Oslo Commission could have benefitted from perspectives from international relations, sociology and philosophy, which ‘apply power as a conceptual lens for understanding how actors behave’. They argue:

A greater and more explicit focus on power as a tool for analysis of global political determinants of health can help to illuminate how actors create and exploit disparities to serve their interests. Crucially, a better understanding of power, which is especially important with the rise of non-health and non-state bodies’ influence over the global policy environment within which health systems must navigate, will allow for the design of policies and processes to redress disparities. (Marten et al., 2014, p. 2207)

Yet the increasingly explicit fingering of the normative dimensions of power and politics in health surely require recourse to more normative scholarly traditions. Ooms (2015, p. 643) makes this argument forcefully, suggesting that the insights of ‘the humanities and social sciences, like international law, ethics, philosophy, and political science are probably better equipped to study, analyse and discuss normative premises than biomedical sciences’. Indeed, in both the CSDH and Lancet-Oslo reports, the normative component of power is viewed as necessitating a corresponding focus on human rights as competing norms potentially capable of remediating consequent inequities. In the CSDH Report, the framing is explicit and upfront:

Putting these inequities right is a matter of social justice. Reducing health inequities is, for the Commission on Social Determinants of Health … an ethical imperative. The right to the highest attainable standard of health is enshrined in the Constitution of the World Health Organization (WHO) and numerous international treaties … But the degree to which these rights are met from one place to another around the world is glaringly unequal. Social injustice is killing people on a grand scale. (CSDH, 2008, p. 26)

In this regard, the CSDH Commission emphasises the role of ‘deeper social structures and processes’ in shaping health inequity, and in particular the role of ‘social norms, policies, and practices that tolerate or actually promote unfair distribution of and access to power, wealth, and other necessary social resources’ (2008, p. 10). The CSDH Commission notes that the right to health is ‘principally concerned with disadvantaged groups, participation, and accountability’ and that explicit rights agendas have been applied with success to global governance in the case of AIDS medicines (2008, p. 158). It sees ‘clear links between a “rights” approach to health and the social determinants of health approach to health equity’, as evidenced by the interdependence of civil, cultural, economic, political, and social rights within the Universal Declaration of Human Rights – which the report suggests reflects ‘dimensions of social exclusion highlighted in the social determinants of health framework’ (CSDH, 2008, p. 173). Citing Paul Hunt, then the UN Special Rapporteur on the right to health, the report suggests that the right to health presents ‘a compelling case for action on the social determinants of health’ given its focus on social determinants of health such as sanitation, healthy conditions at work and access to health-related information, its inclusion of freedoms and entitlements, and its particular preoccupation with the disadvantaged, vulnerable, and those living in poverty (CSDH, 2008, pp. 173–174).

A similar appeal to rights appears in the Lancet-Oslo report, which sees human rights law as an instance of global norms that, despite clear limitations, could ‘limit the range of choice and constrain action, but also sometimes provide opportunities’ (CGGH, 2014).³ Yet perhaps reflecting the composition of its authors, the Lancet-Oslo report goes further than the CSDH report by integrating specific recommendations in this regard, including calling for strengthened use of human rights instruments for health, such as the United Nations human rights specific Special Rapporteurs, stronger sanctions through the international judicial system against human rights violations by non-state actors, and a global governance for health rooted in commitments to global solidarity and shared responsibility through rights-based approaches (CGGH, 2014, p. 631).⁴

Power, human rights and health policy

Despite these calls, human rights law is seldom incorporated into health policy scholarship or education, despite growing recognition that human rights form part of equity and ethics, which are considered core attitudes and values of public health professionals (Public Health Agency of Canada, 2008), and despite the growing recognition within health-practitioner and research domains from medicine, nursing to public health that human rights constitute a critical component of health-related education in these disciplines (Consortium for Health and Human Rights, 1998; The International Council of Nurses, 1998; Rodriguez-Garcia & Akhter, 2000; The World Medical Association, 1999; ). Certainly, there has been a tremendous expansion in health and human rights education at some schools in these domains (USC Global Health, n.d.; Forman, 2011), and promising developments such as the creation of a Human Rights Forum at the American Public Health Organization (APHA, 2017). Yet beyond exceptional outliers,⁵ human rights education largely remains marginal in the health professions, seldom elevated beyond an elective course that negligible numbers of graduates engage.⁶ This dearth is surprising because public health is inherently interdisciplinary, integrating scholarship from sociology, political science, anthropology and medicine. Nonetheless, the commonalities between the social science and health-related disciplines seem to be erased when it comes to law, which seems to be perceived as occupying distinctive disciplinary training and methods even within the social sciences.

Yet human rights law and the right to health in particular offer important normative and strategic frameworks for public and global health, with the capacity to make considerable contributions to identifying and challenging power disparities. This capacity holds in spite of the legal and political weaknesses of the right to health, which like other economic, social and cultural rights has been subject to considerable albeit diminishing contestation as an inappropriately legal right and ‘empty aspirational slogan’ (Tobin, 2012). Indeed, the legal, political and social force of the right to health has experienced a considerable transformation over the past 20 years, fuelled in no small part by an emerging field of scholarship on health and human rights (Beyrer & Pizer, 2007; Farmer, 2008; Gruskin, Mills, & Tarantola, 2007; Hunt, 2006), motivated by widespread human rights violations experienced within the global HIV/AIDS pandemic (Gruskin & Tarantola, 2001; Mann, 1996; Youde, 2008). These factors in turn prompted the seminal work of Jonathan Mann who argued that human rights and health are in the inextricable relationship (Mann, Gruskin, Grodin, & Annas, 1999). An additional developmental prompt came from AIDS treatment campaigns during the 2000s which achieved broad acceptance of access to antiretroviral drugs as a fundamental human right, and ‘sharpened awareness of the importance of health equity, gender equality and human rights – in their own right and for public health’ (World Health Organization, 2014). These gains have built upon a growing recognition of the contribution of human rights-based approaches to health-related policy and programming (Beyrer & Pizer, 2007; Gruskin et al., 2007; Mann et al., 1999). These developments have seen the language of the right to health taken up widely in global health policy documents (UN System Task Team on the Post-2015 UN Development Agenda, 2012; United Nations, 2011), moving public discourse on this right far beyond contestation of its legal meaning and force (Cranston, 1973; Easterly, 2009).

Expanded uptake of the right to health has been significantly aided by the growing legal specificity and force of the right to health in international human rights law, which entrenches a strong normative proposition regarding every person’s entitlements to affordable and good quality health-care and health-related services and to correlative state duties in these respects. This idea has obvious value for domestic and health policy endeavours aiming to improve the quality and sufficiency of healthcare and social services related to health. Certainly, right to health scholars argue this point, suggesting that the right to health is capable of guiding a more equitable form of global health policy (Backman et al., 2008; Forman et al., 2013; Gostin, 2014; Gostin & Sridhar, 2014), and conversely, that global health policy objectives like universal health coverage or healthy lives for all are ‘practical expressions’ of the right to health (Ooms et al., 2014).

While not necessarily widely known outside the legal field, the legal specificity of the normative contribution of the right to health has been significantly enhanced by an important interpretation of the ICESCR article 12 issued in a 2000 General Comment by the United Nations Committee on Economic, Social and Cultural Rights. The Comment provides considerably greater interpretive specificity to the right to the highest attainable standard of health, defining its normative scope, identifying its essential elements, and demarcating the entitlements and correlative obligations that comprise its essence. While not a binding document, General Comment 14 is widely considered to be an authoritative interpretation of the right to health (Backman et al., 2008; Miller, Kismödi, Cottingham, & Gruskin, 2015; Tobin, 2012). It has made progress towards resolving the long-standing vagueness of the right to health that has muddied its legal enforcement and policy implementation, and acts as a guide to courts, policy-makers, social movements and scholars who wish to realise, enforce or advance interpretation of this right (Forman, 2013). For example, General Comment 14 is referenced by the South African Constitutional Court in interpreting that nation’s constitutional right to health in a seminal decision (Minister of Health and Others v. Treatment Action Campaign and Others, 2002), its analytical framework is incorporated into health legislation by the Colombian government (Lamprea, Forman, & Chapman, 2016), and its interpretations have been the subject of numerous scholarly analyses of the right to health (Freedman, 2001; Hunt, 2007; Kinney, 2001). Additional interpretive specificity has emerged from the general comments and decisions of other human rights treaties including the Children’s Rights Committee and the Committee on the Elimination of Discrimination Against Women (Alyne da Silva Pimentel Teixeira v. Brazil, 2011; United Nations Committee on the Rights of the Child, 2013). These decisions add increasingly specific content to the right to health in various contexts, and counter older critiques of this right as vacuous and vague.

Perhaps the primary value of the right to health in international human rights law lies in the extent to which this normativity is linked to its codification within multiple international and regional legal instruments. The right to health has been entrenched in international legal instruments since the 1946 Constitution of the World Health Organization recognised that ‘the enjoyment of the highest attainable standard of health is a fundamental right of every human being without distinction of race, religion, political belief, economic or social condition’, and that governments have a responsibility ‘for the health of their peoples which can be fulfilled only by the provision of adequate health and social measures’ (Constitution of the World Health Organization, 1946, p. 1). The iconic 1948 Universal Declaration of Human Rights (UDHR), through article 25.1, recognises that ‘everyone has the right to a standard of living adequate for the health and well-being of himself and of his family, including food, clothing, housing and medical care and necessary social services’ (Universal Declaration of Human Rights, 1948). The most authoritative iteration of this rights appears in the 1976 International Covenant on Economic, Social and Cultural Rights where states recognise the right of everyone to the enjoyment of the highest attainable standard of physical and mental health, and agree to take steps to realise this standard, including reducing the stillbirth rate and infant mortality; improving all aspects of environmental and industrial hygiene; preventing, treating, and controlling epidemic, endemic, occupational, and other diseases; and creating conditions that assure medical services and attention to all in the event of sickness (International Covenant on Economic, Social and Cultural Rights, 1976). Subsequent human rights treaties entrench rights relevant to health for vulnerable groups including racial minorities, women, children and people with disabilities.⁷ Each of the regional human rights systems in Africa, the Americas and Europe, includes rights to health.⁸

The binding legal nature of these treaties is exemplified by growing ratification rates – the process whereby states sign treaties and ensure legislative assent to such signatures. The majority of global states have ratified one or more human rights treaties containing the right to health: for instance, 165 states have ratified the ICESCR, 189 the Convention on the Elimination of Discrimination Against Women, 196 the Children Rights Covenant, and 172 the Convention on the Protection of People with Disabilities (United Nations Office of the High Commissioner of Human Rights, n.d.). The United States remains a notable outlier in this regard, as the sole non-ratifying UN member state of the Children’s Rights Covenant, in part because that nation continues to contest the right to health (as other economic, social and cultural rights) as inappropriately legal. Yet as these ratification rates indicate, the US position on the right to health is not reflective of global trends. This insight is buttressed by similarly expansive domestic constitutionalisation of health-related rights, with over 100 national constitutions now codifying some form of health rights, often in identical form to the international instruments (Heymann, Cassola, Raub, & Mishra, 2013).

The growing legalisation of these rights has enabled increasing numbers of individuals and civil society organisations globally to use the courts to challenge health policy-related decisions by governments and private actors (Gloppen, 2008; Hogerzeil, Samson, Casanovas, & Rahmani-Ocora, 2006; Yamin & Gloppen, 2011). There are therefore important downstream legal consequences from ratification which ensue less from benevolent state action than from active social movements able to access independent judiciaries willing to enforce these rights, and whose orders are respected and implemented by the government (Forman, 2013). In these circumstances, international human rights law offers powerful remedial tools such as litigation and rights-based advocacy to vulnerable populations claiming equitable access to healthcare services (Forman, 2013). These mechanisms permit social actors to access the immense potential of the normative and operational framework of the right to health (Tobin, 2012).

Moreover, to the extent that the right to health is itself a normative enterprise, it offers important tools to challenge and reconfigure health policy domain rooted in competing norms not conducive to health equity. The right to health is, in this perspective, a critical tool for challenging power. Yamin makes this point forcefully: ‘Human rights are conceived of as rights precisely because they are entitlements that belong to humankind simply by virtue of being human. This fact carries extraordinary implications for the distribution of power in this world’ (Yamin, 1996, p. 403). For Yamin, this power vests in the extent to which rights ‘suggest, if not encode, certain definite conceptions of power, agency, causality and responsibility’ (1996, p. 403). Indeed, the overarching focus of the right to health (as in other human rights) is upon realizing the primary human rights principles of participation, non-discrimination and accountability (World Health Organization, 2002). If taken seriously, implementation of these principles would significantly enhance the voice of marginalised people in shaping the content of health and health-related policy including through mechanisms such as citizen monitoring, advocacy, litigation and social mobilization (London, 2008; Potts & Hunt, 2008; Samuel & Frisancho, 2015).

While the potential force of the right to health is clearly allied to its practical realization, social constructivist theorists suggest that human rights have an important rhetorical function which is intimately connected to power to the extent that ideational power is viewed as more constitutive of power than material facts (Shiffman, 2009). Thus, language choices ‘frame’ issues and connect with deeper paradigms that may influence how actors consider global health problems (Rushton & Williams, 2012). In this view, language ‘frames’ offer ‘linguistic, cognitive and symbolic devices … to identify, label, describe and interpret problems and to suggest particular ways of responding to them’ (Rushton & Williams, 2012). Thus, the use of human rights frames would operate to

identify the bearers of entitlements and duties, specify the range of actions and outcomes required accordingly, and to locate those entitlements and duties within legally binding international law. Actors using the rhetoric of the right to health would implicitly evoke this normative paradigm’ (Forman, Ooms, and Brolan, 2015). This perspective echoes the Foucauldian notion that discourses ‘act as the meeting place for power and knowledge. (Evans, 2005, p. 1050; citing Foucault, 1977)

This perspective contrasts somewhat with rational choice theories such as realism and institutionalism which dispute the direct causal effect of international norms, and argue instead that states only comply with such norms out of self-interested goals such as enhanced power or potential reputational harm (Guzman, 2002, p. 1823; Hathaway, 2002, p. 1944). Rationalist approaches do not therefore disprove the normative influence of rights and law on state action, but rather externalise this impact by focusing on the public, economic or political censure that may indirectly result from changing collective norms (Forman, 2008). This in turn underscores the important role of civil society actors in achieving such legal, political and/or social censure, including though rights-based mechanisms such as protest, litigation and mobilization.

Indeed, scholars recognise that the instrumental and normative influence of rights and law are complementary rather than mutually exclusive (Koh, 1997, p. 2649). States may act both out of self-interest and because they have, to some extent, internalised human rights norms (Checkel, 1997, p. 475; March & Olsen, 1989). This interaction is indicated by process-oriented explanations of how norms emerge, influence actors, and become internalised through mixtures of persuasion and coercion employed by social actors (Finnemore & Sikkink, 1998, p. 887; Koh, 1997; Risse, Ropp, & Sikkink, 1999). In these models, norm entrepreneurs and transnational networks play key roles in ensuring the emergence of new norms, either through persuasion or public pressure (Forman, 2008).

The potential function of rights frames becomes apparent in how it challenges the predominance of economic rationales and neoliberal limitations in global health policy. It is argued that the function of neoliberal logics in the policy domain is totalizing, acting as a ‘deep normative core’ that overwhelmingly influences the nature and extent of policy preferences and solutions deemed useful for solving global health problems (Rushton & Williams, 2012). The impact of neoliberalism on health policy is viewed as extensive, from prioritizing technical and financial approaches to global health, commodifying essential health and social services, entrenching opposition to social spending, and amplifying the framing of health spending as an investment with ‘impressive returns’ (Forman et al., 2015; Jamison et al., 2013). Health as a human right challenges many of these outcomes and logics, framing individual health as a value in and of itself that demands appropriate resource allocations and which cannot be automatically trumped by competing private and public interests. Perhaps the most successful use of human rights logics (and strategies) has been in challenging the opposition to ensuring affordable AIDS treatment in low- and middle-income countries, resulting in transformative outcomes in global health policy and programs (Forman, 2008). In the aftermath of the AIDS treatment campaigns, the rhetoric of the right to health has become increasingly prevalent in global health policy statements from the social determinants of health to non-communicable disease to development, providing an important complement and challenge to purely economic and/or investment rationales.⁹

Yet, despite ample rhetoric, the extent to which the right to health is adopted beyond preambular language in such reports is limited, exemplified in the Sustainable Development Goal (SDG) Agenda policy processes that unfolded between 2010 and 2015.¹⁰ In the run-up to the finalization of the goals, then UN Secretary-General Ban Ki-Moon proposed that a ‘global development agenda based on human rights and the rule of law is the surest pathway to balancing the needs of people and the planet, while eradicating extreme poverty and closing socio-economic gaps’ (UN News Centre, 2014). The UN System Task Team on the Post-2015 Agenda called for new global goals to realize and be guided by the human right to health (UN System Task Team on the Post-2015 UN Development Agenda, 2012). And key reports through this process used the right to health to frame potential health goals (United Nations, 2013), suggesting that health’s centrality to sustainable development drew from the fact that ‘health is a right and a goal in its own right’ (United Nations Open Working Group Technical Support Team, 2013).

Yet this rhetoric did not translate into the final documents of the SDGS themselves. The final resolution adopted by the United Nations General Assembly (2015, p. 1) explicitly grounds the SDG agenda in the realization of human rights for all, including the Universal Declaration of Human Rights and international human rights treaties (United Nations General Assembly, 2015, p. 4). Yet the language of the right to health is conspicuously absent from the SDGs themselves, with only faint traces of the right’s normative propositions apparent in the document, most explicitly when states propose that ‘[t]o promote physical and mental health and well-being, and to extend life expectancy for all, we must achieve universal health coverage and access to quality health care’ (Brolan, Te, Floden, Hill, & Forman, 2017; United Nations General Assembly, 2015 p. 7). There is no explicit human rights or right to health language in goal 3 on ensuring health lives and promoting well-being for all at all ages, despite considerable advocacy efforts to achieve this outcome (Brolan et al., 2017; Go4Health Consortium). This conspicuous absence suggests, on the one hand, that the right to health continues to operate outside the domains of power that dictate the content and framing of global health policy, perhaps reflecting continued contestation of the right to health by powerful states like the U.S. in international fora.

Yet, it is to be noted that not all contested rights were treated this way in the SDG process: for example, earlier SDG reports were far more reflective of sexual and reproductive health rights, rights arguably more capable of provoking ideological and/or religious opposition than even a general right to health (Forman et al., 2015). The more explicit inclusion of sexual and reproductive health rights in the SDGs

may reflect the success of a longer-standing advocacy campaign to mobilise support in first the MDGS and then SDGs  … foreshadow[ing] how important social advocacy will be in fomenting political support for the right to health in global health policy arenas, an insight bolstered by the comparably greater inclusion of this right in reports with more civil society and academic participation. (Forman et al., 2015, p. 802)

The relationship between the right to health and the exercise of power is therefore a complicated one, exemplified in Brazil for example, where use of the right to health in courts has tended to favour relatively privileged litigants (Ferraz, 2009), giving generous concessions to individual claims without consideration of their population impacts if generalised (Yamin & Gloppen, 2011). The Colombian experience is also troubling, with the highest per capita rate of right to health litigation in the world (3289 claims for each 1 million individuals, versus 206, 109, 29, 0.3, and 0.2 respectively for Brazil, Costa Rica, Argentina, South Africa, and India) (Moestad, Rakner, & Motta Ferraz, 2011, p. 282; Moestad et al., 2011). On the one hand, these cases are viewed as having detrimental impacts on existing inequities, giving generous concessions to individual claims without consideration of their impacts if generalised (Yamin, Parra-Vera, & Gianella, 2011). On the other hand, it is argued that high rates of right to health litigation in Colombia have not created these problems as much as responded to deeper institutional dysfunction and inequity arising out of a 1991 health sector reform process (Yamin et al., 2011).

These experiences contrast with domestic cases where the right to health has collectively benefitted the vulnerable and poor: In 2002, the South African Constitutional Court upheld civil society claims under constitutional and international protections of rights to health and life for the government to provide medicines to prevent mother-to-child transmission (MTCT) of HIV (Minister of Health and Others v. Treatment Action Campaign and Others, 2002). As a result of the case, by 2010 a national MTCT program was providing these medicines in over 96% of government clinics (Statistics South Africa, 2010). In 1998, an Argentinian court found government liable to provide adequate access to preventative vaccines to 3.5 million people living in an area affected by hemorrhagic fever. As a result of the case, Argentina’s government developed a plan to deliver basic medicines to those in need within five years of the ruling (Singh, Govender, & Mills, 2007). In Uganda, an NGO sued a district local administration for the deaths of two mothers during childbirth, with a court finding that the deceased mother’s health and related rights had been violated and awarding a monetary settlement (Center for Health, Human Rights and Development [CEHURD] and others vs. Nakaseke District Local Administration). The impact of the Uganda case has been argued to extend beyond the court room, ‘mobiliz[ing] public opinion around maternal health’ (Yamin, 2013, p. 2).

These and other national experiences suggest that in contrast to the Brazilian experience, ‘individual and group claims can benefit collective health interests and potentially assist in reducing systematic disparities in healthcare access’ (Forman, 2015, p. 904), including within low- and middle-income countries where the weakness of courts has been buttressed by sustained pressure applied by domestic allies and international organizations and networks in implementing significant judgments (Yamin, 2013). This point is acknowledged in recent studies of right to health litigation, which suggest that despite the challenges, ‘wherever possible, courts should both protect and assist the democratic process of establishing universality, equal access, and reasonable coverage for health care’ (Flood & Gross, 2014, p. 70). These outcomes suggest that like global health, the right to health is also ‘shot through with power’, and that lawyers, scholars and policy-makers alike need to be more attentive to how this right can both challenge power dynamics as well as sustain them. This imperative is all the more vital given reduced health spending in the wake of the 2008 financial crisis, which has seen broad adoption of austerity measures, and given competing claims for resources from humanitarian emergencies including the global refugee crisis. These contemporary contexts amplify rather than reduce the important role that human rights and the right to health may play in reinforcing the imperative for adequate and appropriate health funding at domestic and international levels, and in highlighting the individual and collective health and human rights needs that underscore such claims.

Conclusion

Notwithstanding the limitations of the precision and enforceability of this right, its normative, empowering and challenging functions offer important tools to civil society, policy-makers, and researchers alike. Indeed, the participation of civil society and human rights actors in global health policy initiatives appears to be a crucial factor in creating persuasive and coercive pressures capable of fomenting political support for the right to health in such contexts and ensuring its inclusion in such policies. Yet, for the legal framework of the right to health to make these contributions to health policy, it is equally important that the disciplinary silos that keep law and human rights hermetically sealed from other social science traditions be lowered and truly interdisciplinary approaches to health policy embraced and entrenched. The challenge in this regard is double-fold: on the one hand, graduate programs in the health professions should include human rights training in their programs; on the other, legal and public health scholarship should more closely consider the way that power may function or distort outcomes in the human rights and health domain.

Acknowledgements

I am grateful for excellent research assistance from Carolyne Rui Wang and Iradele Plante.

Disclosure statement

No potential conflict of interest was reported by the authors.

Additional information

Funding

This work was supported by the Canada Research Chairs Tier Two Program [grant 950-230556].

Notes

1. For example, the University of Toronto’s Institute for Health Policy, Management and Evaluation describes its most significant research contributions to be to the fields of ‘system design, performance management, comparative health systems, health policy and health economics, health services research, quality improvement, patient safety, observational and decision sciences research, and knowledge transfer’ (Institute of Health Policy, Management and Evaluation, 2017).

2. McCoy is cutting in his critique:

The gap between ‘analysis’ and ‘recommendations’ is startling. The identified need for transformative change is abandoned in favour of a set of marginal changes. It is as though having ‘spoken truth about power’, the Commission wasn’t prepared to ‘speak truth to power’ when it came to making recommendations. (McCoy, 2014)

3. The Lancet-Oslo report (2014) at p. 654 states

But we have seen that the power of the market often supersedes the power of human rights norms, including the right to health. Also, governments in stable, resource-rich countries can prioritise other objectives over adherence to internationally agreed-upon human rights norms, as in the case of vulnerable irregular migrants. The Universal Declaration of Human Rights needs to be reinvigorated, and as a norm it could find mutual re-enforcement if combined with the surging public call for a more fair distribution of money, power, and resources than exists at present.

4. For example, the Lancet-Oslo Commission included Professor Gorik Ooms, a right to health scholar who likely strongly motivated for such inclusions.

5. For example, the Mailman School of Public Health at Columbia University includes a module on human rights in a core course on the foundations of public health in its Masters in Public Health degree. See https://www.mailman.columbia.edu/become-student/degrees/masters-programs/masters-public-health/core-curriculum Few other schools of public health in North America include human rights offerings that are mandatory.

6. This insight draws in no small part from experiences teaching the right to health in international human rights law at a school of public health: over seven years, less than an estimated 1% of any graduating masters or Ph.D. class have taken this course.

7. See, for example: International Convention on the Elimination of All Forms of Racial Discrimination (1969, article 5.e.iv), Convention on the Elimination of All Forms of Discrimination Against Women (1979, article 12.1–2), Convention on the Rights of the Child (1989, article 24.1), and Convention on the Rights of Persons with Disabilities (2008, articles 9, 25 and 26).

8. See, for example: Organization of African Unity (1981, article 16), Organization of African Unity (1999, article 14), Council of Europe (1965, articles 11 and 13), and Organization of American States (1999, article 10).

9. See, for example: United Nations (2011, p. 5), where states pledge to ‘adopt coherent policy approaches that are based on the right to the enjoyment of the highest attainable standard of health’; United Nations General Assembly (2012, p. 2), where states reaffirm the right to health and recognise the need for greater measures to prevent and control non-communicable diseases in order to contribute to the realization of the right to health.

10. In contrast, see Hawkes and Buse (2016).