The Pin Factory Blog

The “right to health" is enshrined in several major international treaties, many national constitutions and forms the basis of policy for nearly every major aid agency and humanitarian NGO.

Unfortunately, treating health as an enforceable human right does not work.

Traditional human rights like free speech and the right to peacefully enjoy property have helped restrain the actions of authoritarian governments all over the world.

Since the Second World War, however, international human rights treaties have added positive rights such as health. These require government action, not just restraint.

Positive rights were intended as political aspirations. However, revisions by the UN’s International Covenant on Economic Social and Cultural Rights have made signatory governments legally obliged to “respect, protect and fulfil" the right to health for all individuals.

This new interpretation of the right to health is used as a political tool. The UN’s ideological commissars insist that human rights risk being infringed whenever healthcare is provided through the insurance market or other private means.

Canada’s 2005 Supreme Court decision to overturn Quebec’s ban on private health insurance was criticised by UN experts on the grounds that it interfered with the right to health. The health systems of Korea and Switzerland have similarly been criticised for having too much private involvement, despite delivering high quality services.

Meanwhile Brazil’s constitution recognises the right to health, but shortages are common in state pharmacies. Patients therefore sue the government, creating an intolerable burden on the judicial system. More than 1200 cases of judicial review are sought in the Rio Grande do Sul region alone each month.

The right to health is a blind alley. Traditional rights let people lift themselves out of poverty, giving them the resources to afford clean drinking water, good nutrition and the decent healthcare systems necessary to achieve good health.

Jacob Mchangama is head of legal affairs at the independent Danish thinktank CEPOS. He has written a paper that challenges the widespread acceptance of the existence of a human right to healthcare for IPN. It can be accessed through their website here.

According to mainstream human rights thinking all human rights are “indivisible". Therefore, this mantra insists, economic, social and cultural rights such as the right to an adequate living and the right to social security should not be treated differently from classic freedom rights such as free speech and habeas corpus. This conflation of very different rights is a fallacy. No Western state has built its wealth on constitutional rights to social goods. However, Western freedom has in large part been built on individual freedom rights protecting against arbitrary and authoritarian state action.  The so called indivisibility also reveals a marked political bias. Much literature and jurisprudence on social rights emphasize the importance of state involvement in the economy, increased public spending and the limitation or even abolishment of free market initiatives.

But claiming that a certain way of addressing poverty is a human rights obligation simply serves to elevate such political views to moral and legal imperatives that trump competing views. On the other hand, in a liberal democracy political opponents from left and right will generally agree that is incompatible with basic human rights to censor the media or use torture.

Social rights institutionalize a vision of society based on a specific political agenda, which excludes political pluralism and undermines the rule of law and separation of powers. Moreover, rather than restraining government action, social rights require governments to take prime responsibility for large parts of human life that would otherwise be left to the individual. Ultimately, therefore, social rights endanger the freedom secured by freedom rights. Such a development represents a huge step backwards from hard-won liberties.  It is therefore high time that advocates of human rights resist their politicization and focus on fighting for the right of everyone to live in freedom. To that end, freedom rights should be embraced and social rights rejected.

Jacob Mchangama is head of legal affairs at the Danish think tank CEPOS and external lecturer of international human rights law at the University of Copenhagen. His briefing paper – The War on Capitalism: Human rights, political bias – is published by the ASI today. Click here to download a PDF. You can also watch Jacob making his case to Amnesty International here.