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International obligations through collective rights: Moving from foreign health assistance to global health governance

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This article analyzes the growing chasm between international power and state responsibility in health rights, proposing an international legal framework for collective rights - rights that can reform international institutions and empower developing states to realize the determinants of health structured by global forces. With longstanding recognition that many developing state governments cannot realize the health of their peoples without international cooperation, scholars have increasingly sought to codify international obligations under the purview of an evolving human right to health, applying this rights-based approach as a foundational framework for reducing global health inequalities through foreign assistance. Yet the inherent limitations of the individual human rights framework stymie the right to health in impacting the global institutions that are most crucial for realizing underlying determinants of health through the strengthening of primary health care systems. Whereas the right to health has been advanced as an individual right to be realized by a state duty-bearer, the authors find that this limited, atomized right has proven insufficient to create accountability for international obligations in global health policy, enabling the deterioration of primary health care systems that lack the ability to address an expanding set of public health claims. For rights scholars to advance disease protection and health promotion through national primary health care systems - creating the international legal obligations necessary to spur development supportive of the public's health - the authors conclude that scholars must look beyond the individual right to health to create collective international legal obligations commensurate with a public health-centered approach to primary health care. Through the development and implementation of these collective health rights, states can address interconnected determinants of health within and across countries, obligating the international community to scale-up primary health care systems in the developing world and thereby reduce public health inequities through global health governance.
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volume 12, no. 1 health and human rights • 61
critical concepts
www.hhrjournal.org
international obligations through
collective rights: moving from
foreign health assistance to global
health governance
Benjamin Mason Meier and Ashley M. Fox
abstract
This article analyzes the growing chasm between international power and state respon-
sibility in health rights, proposing an international legal framework for collective rights
— rights that can reform international institutions and empower developing states
to realize the determinants of health structured by global forces. With longstand-
ing recognition that many developing state governments cannot realize the health of
their peoples without international cooperation, scholars have increasingly sought to
codify international obligations under the purview of an evolving human right to
health, applying this rights-based approach as a foundational framework for reduc-
ing global health inequalities through foreign assistance. Yet the inherent limitations
of the individual human rights framework stymie the right to health in impacting
the global institutions that are most crucial for realizing underlying determinants of
health through the strengthening of primary health care systems. Whereas the right to
health has been advanced as an individual right to be realized by a state duty-bearer,
the authors nd that this limited, atomized right has proven insufcient to create
accountability for international obligations in global health policy, enabling the deterio-
ration of primary health care systems that lack the ability to address an expanding
set of public health claims. For rights scholars to advance disease protection and health
promotion through national primary health care systems — creating the international
legal obligations necessary to spur development supportive of the public’s health — the
authors conclude that scholars must look beyond the individual right to health to create
collective international legal obligations commensurate with a public health-centered
approach to primary health care. Through the development and implementation of
these collective health rights, states can address interconnected determinants of health
within and across countries, obligating the international community to scale-up pri-
mary health care systems in the developing world and thereby reduce public health
inequities through global health governance.
introduction
The human right to health is thought to have evolved from an individual
right of persons against a single governmental duty-bearer to a collective
right of peoples against myriad duty-bearers throughout the world. Yet
in spite of this rights-based recognition of globalized determinants of
health, these evolving human rights claims remain imprecise in creat-
ing international legal obligations to meet global health priorities. With
advocates challenging all manner of powerful actors — public and pri-
vate, domestic and foreign, institutional and individual — these inchoate
claims have been unable to achieve the global health policies necessary
to realize public health improvements in developing countries through
primary health care systems.
To the extent that the developed world has assumed any responsibility
for global health, this responsibility has been asserted through political
Benjamin Mason Meier,
JD, LLM, PhD, is Assistant
Professor of Global Health
Policy at the University of
North Carolina at Chapel Hill.
Ashley M. Fox, MA, PhD, is
a post-doctoral fellow in the
Department of Global Health
and Population at the Harvard
School of Public Health.
Please address correspon-
dence to the authors c/o
Benjamin Mason Meier,
Department of Public Policy,
University of North Carolina,
Chapel Hill, NC, 27599–3435,
email: bmeier@unc.edu.
Competing interests: None
declared.
Copyright © 2010 Meier and
Fox. This is an open access
article distributed under
the terms of the Creative
Commons Attribution Non-
Commercial License (http://
creativecommons.org/
licenses/by-nc/3.0/), which
permits unrestricted non-com-
mercial use, distribution, and
reproduction in any medium,
provided the original author
and source are credited.
meier/fox
62 • health and human rights volume 12, no. 1
commitments that lack enforceability and sustainabil-
ity. With these eeting political initiatives funneled
largely through foreign assistance programs, such
policies have been crafted through rhetorical pleas
for charity rather than binding obligations of law.
As a result, developing states have faced inconsistent
commitments that have impeded the functioning of
national primary health care systems — commit-
ments that have become increasingly precarious as
the global economic crisis has deepened.
With ethicists positing moral obligations between
developed and developing countries — conceptual-
izing international development aid not as a volun-
tary, altruistic gesture, but rather as a form of redis-
tributive justice to rectify past and ongoing structural
harms — an imperative has arisen to ground these
non-binding ethical frameworks in international
law. To reassert the authoritative legal frameworks
of human rights in global health governance, it is
necessary that these frameworks incorporate col-
lective rights, complementing an individual right to
health with collective international obligations for
public health.
foreign assistance for global health
Given the persistence of entrenched poverty, devel-
oping countries continue to experience high rates of
infectious disease, shortened lifespan, and diminished
quality of life for large portions of their populations,
generating wide epidemiologic rifts between rich and
poor countries. At the end of the 20th century, 14%
of the world remained undernourished, 16% lacked
access to safe drinking water, and 40% lacked basic
sanitation — with these wanting masses overwhelm-
ingly congregated in the developing world.1 While
health trends have continuously improved at the
global level, health gains in many regions have stag-
nated in step with the increasing immiseration occa-
sioned by international development policy during
the 1980s and 1990s, an era of structural adjustment
that was characterized by health policy prescriptions
for privatization and deregulation.2
Recent attention to these global health inequalities,
precipitated by a worldwide movement for HIV
treatment access, has resulted in unprecedented
increases in health-related foreign assistance to devel-
oping countries. To this end, Ofcial Development
Assistance (ODA) government nancing for the
economic development and welfare of developing
countries — nearly doubled between 2001 and 2007,
with health-related foreign aid growing by US$14.9
billion.3 In addition, so-called megaphilanthropists
and their foundations have begun investing unprece-
dented billions into global health programs and novel
governance systems (for example, public-private
partnerships) to develop health technologies for the
neglected diseases of the developing world.4 Turning
from what many view as their tarnished past, inter-
national nancial institutions have taken a renewed
interest in health-related development nancing
through such programs as the World Bank’s Health,
Nutrition, and Population initiative and its Multi-
Country HIV/AIDS Program.5
However, current global health policy, while a vast
improvement over the tradition of neglect that has
long plagued the world’s poor, has tended to take
programmatic form in vertical interventions directed
at select diseases — often to the detriment of hori-
zontal primary health care systems directed at under-
lying determinants of the public’s health (such as
potable water, improved sanitation, and basic health
infrastructures).6 Given that funding priorities are
driven by the strategic interests of donors, the con-
ditionalities attached to these inherently unsustain-
able foreign assistance programs have proven to be
barriers to the effective implementation of global
health policy through the strengthening of primary
health care systems.7 Further, a substantial portion of
this new global health funding has gone toward the
development of expensive and technically sophisti-
cated biomedical interventions for a fortunate few,
overshadowing the obtainable public health strategies
needed to meet basic survival needs for the common
good.8
As research has uncovered the harms of these vertical
and biomedical approaches to health policy, advocate
attention has shifted back to horizontal systems to
strengthen primary health care, addressing underly-
ing determinants of health through the provision of
public goods, such as water and sanitation systems.9
However, despite growing calls for sector-wide health
support under the mantle of “new” or “smart” aid,
foreign assistance and international lending continue
to bypass the state, with aid given directly to NGOs
or channeled through the privatized provision of
public goods.10 This uncoordinated response has the
potential to undermine the developing state, disad-
vantaging the national primary health care systems
necessary for disease prevention and health promo-
volume 12, no. 1 health and human rights • 63
critical concepts
tion.11 As a result, there are growing concerns about
how best to “improve the coordination necessary to
avoid waste, inefciency and turf wars” while main-
taining the enthusiasm for global health generated by
disease-specic political mobilization.12 While foreign
assistance remains an important source of needed
revenue for health, the current framework cannot
realize the public health needs of developing coun-
tries without increasing international cooperation and
support for national primary health care systems.
limited evolution of the right to
health in codifying international
obligations
In reducing global health inequalities through this
foreign assistance framework, scholars and advo-
cates have looked increasingly to the authoritative
obligations of international human rights law.13
Recognizing that many developing state governments
cannot realize the health of their peoples without
foreign resources, advocates have increasingly sought
to codify international obligations under the purview
of the human right to health, using this rights-based
approach as a foundation for foreign health assis-
tance. As this right to health has evolved to encom-
pass international obligations, however, it has faced
scholarly criticism for exceeding the bounds of inter-
national law and has encountered policy limitations
in inuencing foreign assistance.
This trend toward international obligations began as
early as the 1948 Universal Declaration of Human
Rights (UDHR), which established, through the
United Nations (UN), “a common standard of
achievement for all peoples and all nations.14 The
UDHR elaborated a right to health drawn from
negotiations for the 1948 Constitution of the World
Health Organization (WHO) by which the state
would seek to realize for each person “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.” To
achieve this end through global action, a promise set
forth in the 1945 UN Charter, the UDHR acknowl-
edged the need for international cooperation in
realizing human rights, holding that “[e]veryone is
entitled to a social and international order in which the
rights and freedoms set forth in this Declaration can
be fully realized.”15
Drawing on this international order, the UN’s 1966
International Covenant on Economic, Social and
Cultural Rights (ICESCR) extended these interna-
tional legal obligations for achieving health rights.
To realize the ICESCR’s right to health, dened as
a “right of everyone to the enjoyment of the highest
attainable standard of physical and mental health,”
the ICESCR committed states “to take steps individ-
ually and through international assistance and cooperation,
especially economic and technical, to the maximum
of its available resources.”16 With an understanding
that such international obligations were necessary for
the full realization of human rights, the UN’s special-
ized agencies took the lead in directing this economic
and technical cooperation within their respective
areas of competence.17
In moving forward from the ICESCR under this
UN mandate, WHO’s “Health for All” strategy pro-
vided an institutional framework for global efforts
to expand the normative development of the right
to health, accommodating international health obli-
gations through the 1978 Declaration of Alma-Ata.
In order to realize human rights to health and devel-
opment through international health assistance and
cooperation, WHO and UNICEF brought together
representatives from 134 state governments for an
international conference on primary health care.
Under the Declaration’s rights-based goal of “health
for all by the year 2000,” representatives sought
international cooperation to reduce inequalities in
health status between developed and developing
countries, encouraging governments to work toward
establishing a “New International Economic Order”
that would prioritize disadvantaged groups through
national primary health care systems.18
With the advent of economic structural adjustment
policy in the 1980s, however, the Declaration of
Alma-Ata failed to achieve its goals for primary health
care, leading WHO to postpone its “Health for All”
mission, remove the language of “by the Year 2000”
from its “Health for All” campaign, and rename its
delayed vision of health justice “Health for All in the
21st Century.19 Despite efforts to reach consensus on
international cooperation in the 1986 UN Declaration
on the Right to Development and the 1993 Vienna
Declaration and Programme of Action, these procla-
mations of a new world order did not translate into
international health obligations.20 At this nadir in global
health governance, WHO’s leadership under the right
to health was displaced by the expanding inuence of
international nancial institutions, with WHO’s author-
ity for global health policy dispersed among other
meier/fox
64 • health and human rights volume 12, no. 1
international organizations.21 Rather than addressing
global health threats through the world’s premier pub-
lic health organization, states sidelined WHO through
the creation of The Joint United Nations Programme
on HIV/AIDS (UNAIDS) and The Global Fund to
Fight AIDS, Tuberculosis and Malaria (The Global
Fund) as parallel programs to coordinate vertical inter-
ventions for high-prole diseases. Even as the harmful
ramications of the structural adjustment paradigm
compelled a return to WHO’s “Health for All” strat-
egy, weaknesses in the international legal framework
for health enabled the dismantling of national health
systems through economic austerity programs, exacer-
bating health inequalities within and between countries
with little regard for the human rights consequences.22
In response to these weaknesses in the rights-based
approach to health, public health advocates ral-
lied around non-obligatory political commitments
through the 2000 Millennium Development Goals
(MDGs), which were designed to serve as a moral
framework for a large-scale global campaign to
advance human development through eight goals to
be achieved by 2015. Introducing the MDGs, states
recognized that “in addition to our separate responsi-
bilities to our individual societies, we have a collective
responsibility to uphold the principles of human dig-
nity, equality and equity at the global level.”23 Given
this proclaimed “duty to all the world’s people, espe-
cially the most vulnerable,” four of the eight MDGs
invoke commitments to global health — including
the reduction of maternal and infant mortality, pre-
vention of HIV infection, and eradication of hunger
with the nal goal calling for the creation of “a
global partnership for development.” Yet, although
the MDGs provide hortatory indicators in global
health — delineating aspects of international partner-
ships necessary for development — they do so in a
way that is focused on foreign assistance, untethered
to human rights, and wanting for legal obligations.24
As a result, the MDGs have failed to develop legal
accountability for health obligations on international
duty-bearers.25 Without unprecedented coordination
in health investments from developed states — a
commitment not even broached by the international
community — it is highly unlikely that any substantial
number of developing states will meet their public
health goals.
A belated attempt to revitalize the rights-based
approach to primary health care was made in 2000,
when the UN Committee on Economic, Social and
Cultural Rights (CESCR) took up the evolving deni-
tion of a right to health in its 14th General Comment
on the ICESCR. Drawing on previously elaborated
obligations of “international assistance and coopera-
tion,” General Comment 14 reinterpreted these obli-
gations for application to the right to health, further-
ing the consensus of the Declaration of Alma-Ata to
highlight the international obligations of developed
countries to “facilitate access to essential health
facilities, goods, and services in other countries, when-
ever possible, and provide the necessary aid when
required.”26 In reiterating the international obliga-
tions of the ICESCR, the CESCR stated that:
For the avoidance of any doubt, the
Committee wishes to emphasize that
it is particularly incumbent on States
parties and other actors in a posi-
tion to assist, to provide ‘international
assistance and cooperation, especially
economic and technical’ which enable
developing countries to fulll their core
and other obligations.27
Extending this reasoning to international nancial
institutions, the CESCR advised that “[s]tates par-
ties which are members of international nancial
institutions, notably the International Monetary
Fund, the World Bank, and regional development
banks, should pay greater attention to the protec-
tion of the right to health in inuencing the lend-
ing policies, credit agreements and international
measures of these institutions.”28 Advocates have
pushed forward in advancing these international
health obligations despite criticisms that 1) extrater-
ritorial obligations do not exist under the ICESCR,
2) the CESCR has limited “international assistance
and cooperation” in health to “facilities, goods,
and services” rather than underlying determinants
of health, and 3) General Comment 14 “go[es] far
beyond what the treaty [ICESCR] itself provides
and what the states parties believe to be the obliga-
tion they have accepted.”29 The advocacy to advance
these obligations has accelerated even as developed
states have neglected rights-based approaches to
foreign assistance and developing states have faced
hobbling budgetary uncertainties in their progres-
sive realization of health goals.
With growing recognition of the rights-based impact
of globalized forces on primary health care systems
in the developing world, there has been increasing
volume 12, no. 1 health and human rights • 65
critical concepts
analysis of international health obligations follow-
ing the 2002 appointment of the rst UN Special
Rapporteur on the right to the highest attainable
standard of health, who sought to “give practical
guidance about the application of the human rights
responsibility of international assistance and cooper-
ation in health.”30 Under his mandate to recommend
measures to promote and protect the right to health,
the Special Rapporteur found that:
[s]tates are obliged to respect the enjoy-
ment of the right to health in other
jurisdictions, to ensure that no inter-
national agreement or policy adversely
impacts upon the right to health, and
that their representatives in internation-
al organizations take due account of the
right to health, as well as the obligation
of international assistance and coopera-
tion, in all policy-making matters.31
Although the rst Special Rapporteur enumerated
general principles to guide states in the nancial
allocations and global policies necessary to realize
international health assistance and cooperation, both
he and the second Special Rapporteur have faced
difculties in applying these expansive international
obligations to developed states and international
organizations.32
collective rights as a means to
international obligations
Despite this normative evolution of the right to
health, the inherent limitations of the individual
human rights framework stymie the right to health
in impacting the development processes that are
most crucial for realizing underlying determinants
of health through primary health care.33 Because the
right to health has been advanced as an individual
right, one to be realized by a state duty-bearer, this
limited, atomized right has proven insufcient to
create accountability for international obligations in
global health policy, leaving in its wake deteriorat-
ing national health systems that lack the capacity to
address an expanding set of public health claims.34
Although individuals have found success against
their own governments in select claims for a right of
access to essential medicines, this national litigation
model has little salience to underlying determinants
of health, many of which are structured by actors
and forces beyond the sovereignty of the state.35 As
recognized by legal analysts:
International human rights law, caught
within its framework of state respon-
sibility for human rights violations, is
unable to deal fully with the changes to
state sovereignty accelerated by the pro-
cess of globalization. Where the viola-
tor of human rights law is not a state
or its agent but a globalized economic
institution or a transnational corpora-
tion, international human rights law
nds it difcult to provide any redress
to the victim.36
As such, national enforcement of the right to health
has been limited in challenging the global institution-
al arrangements that structure the ability of states
to realize public health through primary health care
systems.37 With large proportions of health-related
funding owing through foreign assistance programs,
a growing chasm is evident between international
power and domestic responsibility in health rights.
This chasm highlights the utility of collective health
rights — rights of states and peoples that can reform
international institutions to account for international
obligations to realize underlying determinants of
health through primary health care.
Collective rights to realize global public goods
Collective rights can give meaning to underlying
determinants of health in the human rights system,
and through the scaling up of primary health care
systems, provide for the realization of public health.
It has long been recognized by public health scholars
that “public health and safety are not simply the aggre-
gate of each private individual’s interest in health and
safety … . Public health and safety are community or
group interests.”38 As a result, public health — based
upon its non-rivalrous and non-excludable properties
— is a public good that, by its very nature, has mean-
ing only at a collective level.39 Working as a shared
public good, a collective whole that is greater than
the sum of its parts, primary health care systems can
lead to positive externalities — in this case, health for
all. Where this public good “benets all of mankind,”
its realization becomes the “collective responsibility
of all nations.”40 With global health determinants
implicating such international responsibility for pri-
mary health care, collective rights become necessary
meier/fox
66 • health and human rights volume 12, no. 1
to address these international obligations for global
public goods.
The rise of collective rights to challenge global
institutions
Although human rights were initially conceived fol-
lowing the Second World War solely as individual
rights — with an individual rights-bearer left to
make claims against a national duty-bearer (and pro-
vide external restraint against a presumably tyranni-
cal sovereign) — the rise of developing states and
development debates has forced a re-examination
of this individualistic conception of human rights.41
Viewing traditional human rights frameworks as an
extension of imperialist domination, developing
states advanced collective rights as a means of freeing
their peoples from the neocolonial binds of interna-
tional relations and establishing a “New International
Economic Order.”42 Following the supremacy of
individual rights in early UN treaties, collective
rights received their rst explicit recognition in
regional human rights systems, wherein developing
states advanced economic development rights in the
1972 UN Conference for Trade and Development
(UNCTAD III) and African states memorialized
communal rights in the 1976 Universal Declaration
of the Rights of Peoples.43 Since that time, scholars
and advocates have put forward arguments for collec-
tive rights to, inter alia, development, environmental
protection, humanitarian assistance, peace, common
heritage, and public health.44
Often referred to as “third-generation” rights, a rhetor-
ical remnant of Cold War typologies, collective rights
operate at an international level to assure public goods
that can only be enjoyed in common with similarly-sit-
uated individuals and thus cannot be realized through
individual rights claims against the state.45 Rather than
restraining the state — a woefully inadequate obliga-
tion for states struggling to provide for their peoples
in a globalizing world — these collective rights seek
to empower the state to realize rights outside of its
control. Despite the inherent conceptual weaknesses
attendant to such nascent rights frameworks, collec-
tive rights claims have shown themselves effective in
responding to national changes brought about by insa-
lubrious development, shifting the balance of power in
international relations and creating widely recognized,
if not always realized, entitlements within the interna-
tional community.46
employing collective rights for global
health governance
Collective rights offer an extant legal framework
by which to restructure international institutions
to meet global justice imperatives for public health.
Through a vector of rights and duties, collective
rights can address interconnected determinants of
health within and between countries, obligating states
and the international community to scale up primary
health care systems in the developing world and
thereby reduce inequities in global health. Reecting
sovereign inequalities, international dependencies,
and cooperation imperatives, the developing state can
be reconceptualized as both duty-bearer and rights-
holder.47 While developing states would still bear a
duty to realize individual health rights, they would
also hold collective health rights — where they are
unable to realize public health alone — to call on the
international community for cooperation and assis-
tance. By providing a framework for a national rights-
holder in a globalized world, collective rights can be
invoked to alter the global forces that structure the
developmental and distributive policies underlying
the public’s health.48 As such, collective rights in
public health can complement the individual right to
health, examining systemic problems engendered by
global development processes and working alongside
the right to health to mobilize national and interna-
tional resources for primary health care.
In framing these international obligations, the duty-
bearer for such collective rights would be the inter-
national community — including individual states,
international organizations, and public-private part-
nerships. It was once thought that such obligations on
the international community could not exist because
state sovereignty obviated transnational rights viola-
tions. As Louis Henkin noted in The Age of Rights,
The failure of the international human
rights movement to address the respon-
sibility of a state for human rights of
persons in other states may reect only
the realities of the state system. States
are not ordinarily in a position either to
violate or to support the rights of per-
sons in other states.49
Globalization has laid bare such hermetic concep-
tions of sovereignty. While such international obliga-
tions undeniably impinge upon both the developing
and developed state’s sovereignty, these tensions pose
volume 12, no. 1 health and human rights • 67
critical concepts
little conict where developing nations are incapable
of realizing the health rights of their peoples alone,
and developed nations need not shoulder these trans-
national obligations individually.
At the international level, developing states could
operationalize these collective rights to enforce glob-
al health commitments, channel foreign assistance
toward primary health care, and ensure cooperation
in global health policy. Since the ability of states to
realize their human rights obligations at the domestic
level is constrained by the actions and institutional
arrangements of the international community, the
realization of collective rights will require a restruc-
turing of international institutions and national for-
eign assistance programs, allowing developing states
to enter public health debates not merely with a plea
for charity, but with a right to assistance and coopera-
tion.
Developing human rights claims against the
international community: Respect, protect, and fulll
Based upon General Comment 14’s delineation
of state obligations pursuant to the right to health
— drawn from the CESCR’s approach to “respect,
protect, and fulll” all economic, social and cultural
rights — it is possible to extend these dimensions of
health obligation from the domestic to the interna-
tional sphere.50
Under this analogous tripartite framework, the inter-
national community has an obligation to respect the
rights of developing states by not infringing upon
these states’ autonomy to develop functioning pri-
mary health care systems. This would place legal
responsibility on developed states and international
nancial institutions to refrain from such actions as
enforcing trade regimes with inequitable subsidies,
preventing parallel importation of essential medi-
cines, and privatizing services in ways detrimental
to sustainable health systems.51 In this sense, col-
lective rights can be viewed as restoring sovereignty
to developing states to meet the basic public health
needs of their peoples without interference, thereby
creating an enabling environment for states to realize
their domestic obligations for economic, social, and
cultural rights, including the right to health.
Similarly, the international community has an obliga-
tion to protect developing states through the regulation
of transnational private actors that undermine state
governance in public health. In particular, transnational
corporations (TNCs) — whose pursuit of increasingly
exible labor markets and deregulated policy environ-
ments has resulted in a “race to the bottom” in national
regulations — have limited states’ ability to govern in
the absence of global coordination.52 Further imped-
ing national health care administration, pharmaceutical
TNCs have prevented developing states from direct-
ing nite resources to the procurement of affordable
essential medicines and health services.53 To protect
states from these deregulatory and monopolistic prac-
tices that harm the public’s health, the international
community can promulgate international public health
standards, creating global public health frameworks to
prevent TNCs from seeking safe haven for harm in
any country.54
Finally, as the realization of collective rights in a
globalized world requires cooperation across the
international community, WHO can be viewed as a
natural institutional mechanism to fulll the obliga-
tions of the international community for global pub-
lic health. WHO, as the leading authority in global
health policy and “the only organization with the
political credibility to compel cooperative thinking”
on public health, can serve a dual role in fullling
international obligations pursuant to collective rights
— promoting international cooperation to support
global public goods (such as preventing the transna-
tional spread of infectious disease) and coordinating
funding efforts to strengthen national primary health
care systems (such as developing research agendas
for the chronic and neglected diseases of developing
countries).55 Where such leadership necessitates the
incorporation of collective public health obligations
in treaty law, WHO — drawing on its constitutional
mandate for health and human rights — can reestab-
lish its rights-based legitimacy in global health policy
by codifying such obligations through the recently-
proposed Framework Convention on Global Health
— galvanizing engagement across the global health
architecture to overcome collective threats to global
health, heralding global consensus on primary health
care, and creating a lasting legacy of public health in
international law.56
Implementing human rights claims through
international organizations: International and
intranational institutional reforms
Yet even among those who advocate international
human rights obligations for health, there remain
meier/fox
68 • health and human rights volume 12, no. 1
doubts as to the implementation mechanisms that
would be necessary to operationalize these obliga-
tions under international law.57 Where individual
human rights have long relied on goodwill and
shaming to effectuate national policy change, collec-
tive health rights provide a set of legal claims and
accountability mechanisms that can be institutional-
ized through international organizations. In imple-
menting this collective rights framework through the
international community, collective health rights may
be implemented through both international and intra-
national means.
Internationally, collective rights can be implemented
to restructure existing international institutions by
incorporating human rights clauses into the inter-
national legal structure of these institutions and by
developing multilateral governance institutions to
ensure reciprocal conditionalities as obligations of
the international community.58 Rather than allow-
ing states to hide behind the veil of international
institutions to absolve themselves of human rights
obligations, states would bear duties through their
membership in these organizations. For example,
within the WTO — a forum for state negotiation
and adjudication of free-trade principles, often to
the detriment of public health — collective rights
could be asserted by developing states to incorpo-
rate health rights into trade negotiations or dispute
resolution mechanisms; thus, collective rights could
harmonize regulations to protect the public’s health
and reverse the burden of proof to show that trade
agreements are not violating health standards.59 In
addition, given an obligation of states to provide
foreign assistance through international organiza-
tions, collective health rights could be invoked 1)
against idle members to meet their unfullled com-
mitments to global health and 2) on behalf of devel-
oping state members to heighten their participation
in these organizations. To ensure that such health
assistance is channeled into projects that strengthen
primary health care, international assistance could
be coordinated through a central body such as
WHO — as discussed above, under obligations
of the international community to fulll collective
rights thereby reducing inefciency and redun-
dancy in contribution efforts in a manner similar to
that of The Global Fund but cutting more broadly
across health conditions and their determinants.60
Intranationally, to address developing country sources
of global health inequalities — that is, inequalities in
structural capacity that reinforce the dependence of
developing states on ODA for vertical health pro-
grams — collective rights can be implemented to
ensure that both bilateral and multilateral assistance
is channeled through general budgetary support and
sector-wide approaches to national primary health
care systems.61 Whereas current health assistance
tends to “crowd out” the public sector while creat-
ing funding distortions in national health policy,
general budgetary support would overcome these
bottlenecks in donor-driven priority setting by pro-
viding developing states with greater autonomy to
address national public health priorities through
ofcial needs assessments. Realizing the collective
health rights of states in such country-led develop-
ment assistance, sector-wide approaches (SWAps)
could overcome the tendency toward verticalization
of health programs and create integration across sec-
tors that underlie health.62 Through this channeling
of assistance via general budget support, SWAps may
be reformulated to cut across determinants of health
(for example, education, infrastructure, environment,
water and sanitation systems, and social insurance),
strengthening state capacity for providing public
goods by way of primary health care. As a result, pri-
mary health care could then be assured domestically,
through individual rights claims against the state, and
internationally, through human rights assessments of
foreign assistance.
Thus, collective rights would provide a legal frame-
work for states to seek or provide international
assistance and cooperation in accordance with their
respective capabilities.63 With the massive inux of
funds invested in health and health-related develop-
ment projects, it is critical that global health partner-
ships — including intergovernmental, governmental,
and nongovernmental organizations — coordinate
this health assistance to meet international public
health goals and strengthen national primary health
care systems. As interpretations of global social jus-
tice increasingly recognize imperatives to address
power imbalances that give rise to an unjust social
order, rather than merely increase assistance to offset
the harms generated by global institutional arrange-
ments, collective rights can be leveraged to bolster
global institutions at the international level and chan-
nel development aid at the national level.64 By assur-
ing that health assistance is directed toward efcient
cross-sectoral channels through primary health care
systems, collective rights could appreciate the path-
ways and synergies between development commit-
volume 12, no. 1 health and human rights • 69
critical concepts
ments and underlying determinants of health. To
that end, states could employ collective health rights
to institute a “development compact” in global health
as a mechanism for “ensuring the recognition among
all stakeholders of the ‘mutuality of the obligations’
so that the obligations of developing countries to
carry out these rights-based programs are matched
with reciprocal obligations of the international com-
munity to cooperate in order to enable the implemen-
tation of those programs.”65 Such a compact would
offer a means for developing states to reshape the
international community for health promotion, to
raise public health obligations in economic develop-
ment planning, and to increase national resources to
realize primary health care for all.
conclusion
So long as states can argue that their foreign assistance
is elective, “health for all” will remain an elusive goal
— one more regret upon the altar of failed political
commitments. Realizing the rights-based promise of
international obligations for global health will require
sustainable international structures for facilitating
coordination and cooperation across the interna-
tional community. These structures can be created
through the frameworks of collective human rights,
developed and implemented through the structures
outlined above and illustrated in Figure 1.
Figure 1: A collective rights-based approach to
global health governance
In this way, collective rights offer a framework for
developing structures of global health governance.
With human rights providing normative resonance to
social mobilization and legal standards in global pol-
icy, the language and obligations of collective rights
can prove instrumental in achieving the public health
goals that have been incompletely realized under the
aegis of the individual right to health. Through the
complementary advancement of individual and col-
lective health rights, states can create the optimum
synergy of global efforts — at the national and inter-
national level — and give meaning to human rights as
they address collective vulnerabilities to the realiza-
tion of the public’s health.
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... 9,10 The themes, which recur in the GH literature as areas of growing study and debate, include: justification of GH, medical education, economics, research prospects, law/ethics, and work-life balance. 1,2,5,[11][12][13][14][15][16][17] This study adds to the existing literature by providing a systematic, hermeneutic analysis of the verbatim accounts of GH experts regarding these themes as they pertain to careers in GH. ...
... (RX. [12][13][14] Addressing sustainability was deemed key to justifying GH endeavors. Five respondents insisted that sustainable interventions ideally obviate the need for future intervention, although 3 respondents cautioned against overprioritizing sustainability. ...
... [S]ome individuals from almost every specialty are doing global health." (RX.12) ...
Article
Background Despite expansion of interest among American medical students in global health (GH), academic medical centers face multiple obstacles to the development of structured GH curricula and career guidance. To meet these demands we sought to provide a systematic analysis of the accounts of GH experts. Methods We developed a collaborative, interview-based, qualitative analysis of GH experiences across six career-related themes that are relevant to medical students interested in GH: justification, medical education, economics, research prospects, law and ethics, and work-life balance. Seven GH faculty members were interviewed for 30-90 minutes using sample questions as guidelines. We applied a grounded theory approach to analyze the interview transcripts to discover an emerging theory pertinent to GH trainees. Findings Regarding justification, 4 respondents defined GH as work with the underserved irrespective of geographic location; 5 respondents found sustainability imperative; and all respondents believe GH creates better physicians. Respondents identified many physician competencies developed through GH medical education, with 5 respondents agreeing that work with underserved populations has transformative potential. Concerning economics, 3 respondents acknowledged GH's popularity among trainees, resulting in increased training opportunities, and 2 respondents emphasized an associated deficiency in program quality. All respondents described career models across specialties. Four respondents noted funding challenges when discussing research prospects. Within the theme of laws and ethics, 4 respondents perceived inadequate accountability, and 6 respondents identified ways to create accountability. Finally, 6 respondents recognized family demands can compromise one's GH career and thus work-life balance. Conclusion Despite diverse perspectives on the meaning and sustainability of GH work, this analysis provides a nascent framework that may inform curricular development for GH trainees. Suggestions are offered for elaborating this framework to fully exploit the transformative potential of GH training in medical education.
... A variety of policy responses have been proposed with a foundation in global solidarity. Among the more ambitious of these is a suggestion of transforming development assistance for health as part of a global re-distribution regime (33)(34)(35), analogous to the way in which wealth, and the opportunities associated with it, are transferred through taxation and government support for social programs at the domestic level. This implies that all countries contribute according to their ability to pay, and this common pool of resources finances sectors supporting basic needs (e.g., education, health care, biomedical R&D). ...
Technical Report
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This report examines key aspects of the global governance system and its relationship with public health. It concludes with the argument that the ability of global governance for health to shape interests, weigh competing interests and influence thinking in broader global governance and policy could be strengthened by incorporating a philosophical foundation–the capability approach articulated by Amartya Sen and Martha Nussbaum–as its basis.
... These models also form the implied backdrop to scholarly discussions in the fields of international human rights and Science and Technology Studies (STS). By focusing on the rights of indigenous peoples in the context of genetic research, this essay further diversifies existing literature on human rights and global health, which has been dominated by the individualist framework expounded in the Universal Declaration of Human Rights (1948) (Mann 1997;Meier and Fox 2010). In addition, the essay's emphasis on indigenous peoples enriches STS literature by discussing the impact of advanced health technologies on societies whose structures do not fit the conceptual categories typically applied in sociological and critical analyses of modern political life. ...
... The problem with this, as Meier and Fox have pointed out, is that when priority is given to vertical interventions directed at particular diseases, Public health sans frontières: human rights NGOs and "stewardship" primary health-care systems focused on the underlying determinants of public health tend to be neglected. 46 Moreover, NGOs play a very real part in this form of prioritisation, both because they champion particular diseases and because donors, looking for the best way to spend their money, may prefer to fund NGO provision rather than pursue the riskier strategy of giving to individual states in support of a considerably looser goal such as sector-wide health investment. 47 The LIMITs Of huMaN rIGhTs NGOs MSF, as noted earlier, is a past winner of the Nobel Peace Prize. ...
Article
Part of a special issue: 'A symposium with Professor Roger Brownsword: super-stewardship in the context of public health', guest edited by Dr Mark Flear, and featuring papers by both Flear and Brownsword, as well as Dr John Coggon, Professor Soren Holm, Professor Tamara Hervey and myself
Article
Background Health is a basic human right, yet surgery remains a neglected stepchild of global health. Worldwide, five billion people lack access to safe, timely, and affordable surgical and anesthesia care when needed. This disparity results in over 18 million preventable deaths each year and is responsible for one-third of the global burden of disease. Here, we evaluate the role of surgical care in protecting human rights and attempt to make a human rights argument for universal access to safe surgical care. Material and Methods A scoping review was done using the PubMed/MEDLINE, Embase, and Scopus databases to identify articles evaluating human rights and disparities in accessing surgical care globally. A conceptual framework is proposed to implement global surgical interventions with a human rights-based approach. Results Disparities in accessing surgical care remain prevalent around the world, including but not limited to gender inequality, socioeconomic differentiation, sexual stigmatization, racial and religious disparities, and cultural beliefs. Lack of access to surgery impedes lives in full health and economic prosperity, and thus violates human rights. Our normative framework proposes human rights principles to make surgical policy interventions more inclusive and effective. Conclusion Acknowledging human rights in the provision of surgical care around the world is critical to attain and sustain the Sustainable Development Goals and universal health coverage. National Surgical, Obstetric, and Anesthesia Planning and wider health systems strengthening require the integration of human rights principles in developing and implementing policy interventions to ensure equal and universal access to comprehensive health care services.
Thesis
Full-text available
تناول هذا البحث بالدراسة أحد مجالات الحوكمة العالمية، وهو حوكمة الصحة العالمية، وركز في البداية على وصف هذه المنظومة، وتشكلها تاريخيا، وتحديد إطارها المفاهيمي والمقاربات السائدة في تحليلها، ثم ينتقل في جزئه الثاني إلى تحليل الفواعل المتدخلة في حوكمة الصحة العالمية من حيث حجمها وموقعها وأدوارها، والآليات التي تتبعها في نشاطاتها، ليوجه أخيرا بؤرة تركيزه إلى تحديد معالم النزاع بين الأسس المعيارية للعمل الصحي العالمي - المتمثلة في منظومة حقوق الإنسان، والحق في الصحة تحديدا، والأمن الإنساني كأساس وكإطار موجه أيضا للتعاون العالمي اليوم في مجالي الأمن والتنمية- وبين والمصالح التجارية الربحية التي تتبعها الدول والشركات العبرقومية بالخصوص. إن هذا البحث يحاول أن يجيب عن إشكالية أساسية تتمثل في التساؤل التالي: ما مدى تحديد كل من الأسس المعيارية والمصالح التجارية لمعالم حوكمة الصحة العالمية؟ وقد استخدم الباحث فيه إطارا تحليليا مشكلا من مقاربة قانونية، والمقاربة الشبكية، مقاربة تحليل النظم ومقاربة الإقتصاد السياسي الدولي، محاولا تحليل كيف أن الاعتبارات التجارية – الربحية للقطاع الخاص والدول لا تزال تضع الحدود والعوائق أمام الترجمة العملية لكل من الحق الإنساني في الصحة والأمن الصحي الإنساني العالميين. فعملية تحرير التجارة الدولية المتواصلة منذ قرابة قرن من الآن، والتي ترعاها منظمة التجارة العالمية، والاتفاقيات المتعلقة بها، لا تزال تعيق التوجه نحو أمن صحي إنساني من خلال الحد من محاولات وضع قيود أمام التجارة في الكثير من المواد المضرة سيما منها التبغ، أو غير معروفة المخاطر مثل الأغذية المعدلة جينيا، كما لا تزال مطالب الشركات الصيدلانية الرائدة في مجال البحث والتطوير في حماية الملكية الفكرية المبتكرة لمنتجاتها تحد من إتاحة الأدوية وطرق العلاج الضرورية لإنقاذ حياة الملايين من الناس سنويا، والذين يعوزن القدرة المالية خصوصا للحصول على الدواء المحمي ببراءات الاختراع. كما عالج البحث ظاهرة الأمراض المهملة والتي تترك أيضا قطاعا عريضا من سكان العالم عرضة للموت والتهميش الاجتماعي بسبب غياب سوق مربحة تحفز أصحاب المعرفة العلمية اللازمة لتطوير أدوية ولقاحات مضادة لها، وهو ما يتناقض بشكل واضح مع مضامين الحق الإنساني في الصحة والأمن الإنساني. Abstract: This study deals with the analysis of Global Health Governance )GHG) as a special global governance area. It focuses initially on the description of (GHG) system, its historical formation, the main conceptual framework and prevailing approaches in this field. Then the study moves to analyze the main roles of various actors intervening in the governance of the global Health considering their size, location, roles, and mechanisms by which they lead their activities. to draw finally focus to determine the parameters of the conflict between, on one hand, the normative foundations of global health mainly, the human rights system, and specifically the right to health and human health security , a framework that forms the guidline of today's global cooperation in the areas of security and development. On the other hand, the commercial interests of multinational corporations and states. This study attempts to answer the following question: To what extent the normative foundations and business interests identify the contours of the global health governance? The researcher used an analytical framework composed of multiple approaches: legal approach, Network analysis, system analysis ,and international political economy In order to analyze how that commercial considerations - the profitability of the private sector and the states still set the limits and barriers to the translation process for each of the human right to health and health security. It also argues that The ongoing process of liberalization of international trade continued for nearly a century, supervised by the World Trade Organization and agreements relating thereto, still impede the trend towards human health security through the reduction of trade barriers to a lot of harmful commodities notably the tobacco, or substances with unknown risks such as genetically modified food. Moreover, the constant demands by the leading research and development based pharmaceutical companies to more rigorous intellectual property protection for its innovative products; as one of the most important reasons for their survival in the market; stands as major restrict in the face of millions of people who lack the financial resources to affoard patented drugs and access to medicines and treatment methods necessary to save their lives. Finally, The study addresses the phenomenon of neglected diseases, and shows how a large segment of the world's population are left at risk of death and social exclusion. This case is usually justified by the absence of a stimulating market to those with scientific knowledge necessary for the development of drugs and vaccines namely pharmaceutical companies. Unfortunately this state of the affairs contrasts sharply with the very humanitarian content of the human right to health and human security. تناول هذا البحث بالدراسة أحد مجالات الحوكمة العالمية، وهو حوكمة الصحة العالمية، وركز في البداية على وصف هذه المنظومة، وتشكلها تاريخيا، وتحديد إطارها المفاهيمي والمقاربات السائدة في تحليلها، ثم ينتقل في جزئه الثاني إلى تحليل الفواعل المتدخلة في حوكمة الصحة العالمية من حيث حجمها وموقعها وأدوارها، والآليات التي تتبعها في نشاطاتها، ليوجه أخيرا بؤرة تركيزه إلى تحديد معالم النزاع بين الأسس المعيارية للعمل الصحي العالمي - المتمثلة في منظومة حقوق الإنسان، والحق في الصحة تحديدا، والأمن الإنساني كأساس وكإطار موجه أيضا للتعاون العالمي اليوم في مجالي الأمن والتنمية- وبين والمصالح التجارية الربحية التي تتبعها الدول والشركات العبرقومية بالخصوص. إن هذا البحث يحاول أن يجيب عن إشكالية أساسية تتمثل في التساؤل التالي: ما مدى تحديد كل من الأسس المعيارية والمصالح التجارية لمعالم حوكمة الصحة العالمية؟ وقد استخدم الباحث فيه إطارا تحليليا مشكلا من مقاربة قانونية، والمقاربة الشبكية، مقاربة تحليل النظم ومقاربة الإقتصاد السياسي الدولي، محاولا تحليل كيف أن الاعتبارات التجارية – الربحية للقطاع الخاص والدول لا تزال تضع الحدود والعوائق أمام الترجمة العملية لكل من الحق الإنساني في الصحة والأمن الصحي الإنساني العالميين. فعملية تحرير التجارة الدولية المتواصلة منذ قرابة قرن من الآن، والتي ترعاها منظمة التجارة العالمية، والاتفاقيات المتعلقة بها، لا تزال تعيق التوجه نحو أمن صحي إنساني من خلال الحد من محاولات وضع قيود أمام التجارة في الكثير من المواد المضرة سيما منها التبغ، أو غير معروفة المخاطر مثل الأغذية المعدلة جينيا، كما لا تزال مطالب الشركات الصيدلانية الرائدة في مجال البحث والتطوير في حماية الملكية الفكرية المبتكرة لمنتجاتها تحد من إتاحة الأدوية وطرق العلاج الضرورية لإنقاذ حياة الملايين من الناس سنويا، والذين يعوزن القدرة المالية خصوصا للحصول على الدواء المحمي ببراءات الاختراع. كما عالج البحث ظاهرة الأمراض المهملة والتي تترك أيضا قطاعا عريضا من سكان العالم عرضة للموت والتهميش الاجتماعي بسبب غياب سوق مربحة تحفز أصحاب المعرفة العلمية اللازمة لتطوير أدوية ولقاحات مضادة لها، وهو ما يتناقض بشكل واضح مع مضامين الحق الإنساني في الصحة والأمن الإنساني.
Article
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This chapter presents an assessment of the realization of the right to health for refugees in Jordan. A host to Palestinian, Iraqi, and Syrian refugees, Jordan has one of the highest densities of refugees per capita of any country in the world. The central aim of this contribution is to assess where primary responsibility for the realization of the right to health for these acutely vulnerable subgroups lies, both in theory and in practice. This is done through an analysis of the health status, core obligations, and the accessibility, availability, acceptability, and quality of care framework. It is found that while in theory primary responsibility lies with the Government of Jordan, in practice the international community has assumed a greater role in realizing the right to health across each of the main refugee communities. In particular, the United Nations Relief and Work Agency and the United Nations High Commission for Refugees have assumed a central role in realizing the right to health for refugees in Jordan. We posit that this Government of Jordan to United Nations responsibility-shift has resulted in the entrenchment of parallel social protection structures that has led to the creation of multiple UN surrogate states. While providing access to key services, these parallel structures exacerbate fragmentation in the Jordanian health system, compromising the realization of the right to health for both refugees and non-refugees alike. Integration of these parallel service structures into the Jordanian health system is proposed as a potential avenue for advancing the realization of the right to health for all residents in Jordan, including refugees.
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A public good is a good or service that the ‘free market’ will underproduce because it is nonexcludable and nonrival. A global public good is such a good or service that crosses a number of national borders/populations. Although health perse is not a public good, and nor are the goods and services necessary to provide and sustain health, there are important global public good aspects to health issues. This article defines and outlines how this global public good concept applies to health and the implications of it for collective action to address health issues on the globallevel.
Chapter
This chapter starts by defining what poverty means. It sketches the situation of global poverty and some of the factors that have exacerbated it. It also discusses recent progress made by the international community in bringing human rights into the discussion of development. It then describes in a little more detail some of the reasons why many development and economics specialists still remain critical of the human rights approach. Three principal criticisms of the human rights approach are cited by those who work in the field of development. In general, there is gathering evidence of mutual need. The evaluation of progress on the Millennium Development Goals (MDGs) to be carried out in 2005, and the debate in the General Assembly in September 2005, offers an ideal context for the further convergence for those working in the fields of human rights and development.
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Economic globalisation and universal human rights both have the aspiration and power to improve and enrich individuals and communities. However, their respective institutions, methods, practices and goals differ, leading to both detrimental clashes and beneficial synergies. In this book, David Kinley analyses how human rights intersect with the trade, aid and commercial dimensions of global economic relations, taking the view that, while the global economy is a vitally important civilising instrument, it itself requires civilising according to human rights standards. Combining meticulous research with highly informed views and experiences, he outlines the intellectual, policy and practical frameworks for ensuring that the global economy advances the ends of human rights, argues for better exploitation of the global economy's capacity to distribute as well as create wealth, and proposes mechanisms by which to minimise and manage the socially debilitating effects of its market failures and financial meltdowns.
Chapter
Within the human rights community, expectations about the potential of human rights law to contribute substantially to human development2 are high. The development community tends to be sceptical, and some human rights scholars too ? among which Philip Alston, the Special Adviser to the High Commissioner for Human Rights on the Millennium Development Goals and Human Rights3 ? have started to express some cautionary remarks (section 2). It is submitted that human rights law, notwithstanding its potential to meaningfully contribute to human development, faces severe limits indeed. These limits relate partly to some of the characteristics of (human rights) law, such as its focus on the individual and on State sovereignty. Others go to the ideological heart of the liberal State (section 3). Perhaps paradoxically, as important as the limits themselves, human rights lawyers' awareness and acknowledgement of these limits may determine and circumscribe the developmental potential of human rights law. For the more these limits are ignored, the less likely it becomes that human rights law plays a meaningful role in bringing about human development (section 4). There is a long'standing ? albeit rather marginal ? debate on the potential of law in general to contribute to development. After its demise in the mid 1970s, the belief in developmental legal engineering reemerged to a certain extent in the early 1990s, following the collapse of the Berlin Wall.4 Lessons that have been drawn from this general debate may also be applied to human rights law more particularly. One is the need to avoid na?ve legal instrumentalism. It seems imperative and widely recognised that sufficient attention be paid to principles like the rule of law and the independence of the judiciary. It has been pointed out however that these principles are not only legal principles, but that they are part of an ideological package which is commonly denoted as the ?liberal State?.5 While this does not need to be problematic in itself, any absence of awareness thereof might well be, such as, when legal reform is attempted in a society in which these ideological underpinnings are not widely shared or present. It is submitted that human rights law and litigation is confronted with at least three fundamental limits when deployed for the sake of human development: conceptual limits, limits of legitimacy and ideological limits (section 3). Two conceptual limits are discussed in more detail: the concern with individual rights and the premise of sovereign equality. Traditional human rights law litigation is ill'suited to address satisfactorily issues of human development for two major reasons. First, it takes an individualised approach to fundamentally structural problems. Secondly and at a more fundamental level, both national and international efforts to mobilise human rights law for human development seem to be frustrated and inhibited by the obstacle of presumed equality. Lifting the veil of formal equality between individuals and States appears to be a common challenge at national and international level respectively in order to increase the relevance of human rights law for human development. While such an undertaking threatens one of the longstanding principles of law, it may even have a more profound implication, in that it touches upon one of the underpinning ideological values of human rights law and liberalism. Issues of legitimacy too pose limits to human rights law. Considerations of legitimacy arise with regard to judicial activism and the legal conceptualisation of the right to development and third'state human rights obligations. The crucial question with the latter two conceptions is how far the human rights concept can be stretched without become self?defeating. A major ideological limit of human rights law is that it can only meaningfully contribute to human development in a certain legal context, namely that of the rule of law. In light of the fragility, subversion or absence of the rule of law in a high number of third world countries, this is probably the most serious limit the human rights community has to acknowledge. Moreover, at a minimum, social justice must be accepted as a fundamental value in society. The limits of human rights law and litigation in contributing to human development in countries in the South require first and foremost critical awareness about their existence (section 4). Some limits may be partly remedied through a critical rethinking of certain aspects of human rights law. However, the more it is tried to reconceptualise human rights law to increase its developmental relevance, the more likely this results in a loss of legitimacy and reduced legal recognition (see for the latter our discussion on the right to development and third'state obligations). Human development requires collective and structural approaches, and the commitment of many actors. While human rights law may be amenable to partial transformation over time in order to become better equipped to confront these challenges, in the end the exigencies of a structural and multi?actor approach may expose the insurmountable limits to human rights law. A final word of caution. The attempt undertaken in this chapter, that is to identify the multiple limits of human rights law, is not a plea for legal conservatism. It is rather intended as an awareness'raising exercise for human rights lawyers who engage in human development. While it may be possible, and should certainly be tried, to overcome to the maximum extent possible the limits exposed, human rights lawyers should keep in mind at all times that every attempt at conceptual innovation may be confronted with more fundamental limits, and will be challenged by them. A conditio qua non for success in innovative human rights lawyering is that the rule of law and social justice are to be referred to as basic principles of the State's set?up, inter alia to legitimise political power.
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Thanks to a recent extraordinary rise in public and private giving, today more money is being directed toward the world's poor and sick than ever before. But unless these efforts start tackling public health in general instead of narrow, disease-specific problems-and unless the brain drain from the developing world can be stopped-poor countries could be pushed even further into trouble, in yet another tale of well-intended foreign meddling gone awry.
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Asbjorn Eide has been a pioneer in the field of research and analysis of international human rights laws and economic, social, and cultural rights. His contributions have had a lasting impact on the human rights discourse in most international forums and in the conduct and monitoring of human rights practice of the different states and treaty bodies. As a newcomer in this field, I have benefited immensely from his writings and from the many discussions I have had with him. It is a privilege to be associated with a publication in his honor, and I dedicate this paper as a mark of my respect for his wisdom, his understanding of the details of the legal and practical issues, and his commitment to the cause of human rights. This paper presents a brief overview of the nature and content of the right to development as elaborated in my reports to the UN Human Rights Commission as the Independent Expert on the Right to Development. The acceptance of the right to development (RTD) as a human right involves the recognition of international cooperation as an obligation of the international community consisting of bilateral authorities and international agencies. In the reports of the independent expert, a model of such international cooperation built on the principle of reciprocal obligation was developed in the name of "Development Compact." This paper describes that model in some detail and then compares that with some of the existing frameworks of development cooperation such as the Comprehensive Development Frameworks (CDF) and the Poverty Reduction Strategy (PRSP) of the World Bank and the International Monetary Fund (IMF), the Common Country Assessments (CCA), and the United Nations Development Assistance Framework (UNDAF) of the UNDP. It then discusses the proposed new initiative of the African countries, known as NEPAD or New Partnership for Africa's Development, and how that can be made to conform to the right to development–development compact model (RTD–DC). It elaborates on an illustrative burden sharing framework for development assistance based on a "callable contribution" contingent on the full implementation of a right to development program by a developing country. This is not the only possible method Copyright © 2003 Arjun Sengupta.
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