Wendy Wong is celebrating the normalcy and universality of human rights, arguing that the mainstreaming of human rights rhetoric is a giant step in the right direction. She acknowledges that many outside human rights circles have embraced—and even misused—human rights language, but in her view this isn’t a problem. “Human rights are ‘no longer revolutionary’,” she writes. “But this is a good thing, not a weakness.”
Yet, does draping all causes in rights-based rhetoric always work?
I worry there are diminishing returns if all causes are framed as human rights, as rights increasingly come into conflict with each other. Historically, there has been less global consensus around social and economic rights than civil and political rights. Moreover, despite the appeal of human rights framing, I worry there are diminishing returns if all causes are framed as human rights, as rights increasingly come into conflict with each other. The experience of framing health as a human right is particularly instructive.
Global health advocates have had a long effort asserting a right to health. In the late 1970s, health advocates tried and failed to frame health as a human right as part of the Health for All initiative intended to support more access to health in developing countries. Scholar Jeremy Youde argues that failure occurred because it happened “at a time when the right to health was highly contested.”
In the 1990s, Jonathan Mann reinvigorated interest in framing health as a human right as he led the World Health Organization’s early attempts to address the AIDS pandemic. He launched a new journal, Health and Human Rights, in 1994 on the premise that human rights have special power: “states are increasingly monitored for their compliance with human rights norms by other states, nongovernmental organizations, the media and private individuals.”
After Mann’s tragic death in a plane crash in 1998, Lawrence Gostin wrote a tribute to his former collaborator, capturing the attractiveness of rights-based framing. “‘Human rights’ when it is invoked in reasoning or argument, commands reverence and respect,” Gostin said. However, he warned that a right to health potentially lacked analytical clarity: “Considerable disagreement exists, however, as to whether ‘health’ is a meaningful, identifiable, operational, and enforceable right, or whether it is merely aspirational or rhetorical.”
Gostin wrote these words in 2001 just as AIDS campaigners were mobilizing an access to medicines campaign for the developing world based on moral principles as well as rights-based appeals. In particular countries such as Brazil and South Africa, where the right to health is embedded in those countries’ constitutions, framing access to medicines as a human right had power, as activists could leverage the legal basis of their claims in domestic courts. However, at the global level, it is unclear whether AIDS activists benefited from a perception of health as a human right or helped crystallize that perception through their advocacy.
Flickr/United Workers (Some rights reserved)
A march for the human right to healthcare in Maryland, USA.
Moreover, in the realm of medicines, even if we accept health as a human right, we have competing sets of “rights”. When the World Trade Organization was created in 1995, the so-called Trade-Related aspects of Intellectual Property Rights (TRIPs) were negotiated at the same time. Though developing countries had a lengthy extension period to implement these provisions, these rights extended 20 years of patent protection to makers of branded pharmaceuticals.
Against this new and highly contested set of rights, we have competing claims for access to medicines. While the TRIPS agreement included exceptions for health emergencies, these privileges had to be reaffirmed in the 2001 Doha health exception and clarified further in 2003. This terrain still remains highly contested, as pharmaceutical companies are seeking to enshrine extended restrictions on data sharing through new regional trade agreements such as the Trans-Pacific Partnership.
With intellectual property rights and rights to health and medicines in conflict, the notion of rights as trumps that should take priority over competing claims becomes harder to sustain. While philosophers may have nuanced understandings of how to deal with competing rights claims, the challenge in the real world is how to balance competing political priorities. Whether or not elevating health and access to medicines as human rights helps that cause without undermining wider human rights claims remains an open question.