- Defining Questions: Situating Issues of Power in the Formulation of a Right to Health under International Law
The value of employing a rhetoric of rights in the campaign for public health lies in the disaggregation of anonymous suffering. Looking at society through a prism of rights forces one to see individual faces among the ubiquitous pools of misery that flood much of the developing world; among that block of human beings defined as “the homeless mentally ill” who languish on the grates and benches of the so-called developed world; and among the grazing herds of despair who congregate in the corridors of state-run nursing homes around the globe. The idiom of rights individualizes the misery of maimed children from the pediatric wards of Sarajevo to the orphanages of Zaire, just as it turns the statistics of the global AIDS pandemic into individuals, each of whom has his or her own narrative with multiple plots and themes. Moreover, unlike reactions grounded in shallow sentimentality, which generally result in no more than fleeting agitation, the rhetoric of rights claims our sustained attention even in the face of societal aversion. Indeed, the language of rights appears to be the demiurge that creates the reality of entitlements.
Nevertheless, the significance of using a rights discourse in discussions about health status, as well as what the meaning of a right to health would imply, remains unclear and confused. Notwithstanding references to a universal human right to enjoy “the highest attainable standard of health” in [End Page 398] international human rights treaties, as well as in the Constitution of the World Health Organization (WHO), 2 the debate about a right to health 3 often centers around whether the rhetoric of rights advances the cause of public health at all. 4 Conversely, the inclusion of health in the panoply of universal human rights has been questioned as potentially doing a disservice to the cause of rights. 5
At a time when UN agencies and committees, together with nongovernmental organizations (NGOs), are increasingly linking human rights norms with health promotion, this article takes up the question of what the relationships between health status and human rights are, and what they might be, from both a theoretical and a strategic perspective. Part II explores the meanings of power issues in human rights and public health. In setting forth empowerment 6 as an underlying theme of human rights, this article proposes that the difficulty in elaborating the connections between health and human rights might be ameliorated by redefining the questions asked concerning the meaning of empowerment for both areas. It argues that by [End Page 399] examining the perceptions of power that human rights notions implicitly embody and by making explicit the power issues involved in health status, one is forced to focus beyond simply overcoming or containing biophysiological disease. This examination requires both human rights and public health activists to discern the societal relations, combinations, and alignments of power that both produce and distribute disease and define the social state of illness, as well as on the side-effects, oppositions, and resistances to those power structures that are implicated in a “right to health.”
Part III argues that by framing a right to health in terms of control over one’s own health—thereby tracking the WHO’s definition of health promotion—both the fields of human rights and public health are able to transcend paralyzing debates which have left the development of a right to health stunted. 7 In the spirit of cross-fertilization between the two fields, this article further suggests that the Declaration of Alma-Ata, which stressed a comprehensive, “Primary Health Care” approach and was adopted as public health policy by over 150 countries, but implemented in only a handful, could constitute a starting point for the authoritative interpretation of an empowering right to health. 8
Part IV revisits long-standing questions about the intersections between health and human rights from the perspective of a right to health based on control over health and personal empowerment. Thus, issues surrounding the health consequences of human rights violations and the human rights considerations of health policies...