Health Care Anal DOI 10.1007/s10728-015-0298-7 ORIGINAL ARTICLE
A Progressively Realizable Right to Health and Global Governance Norman Daniels1
Ó Springer Science+Business Media New York (outside the USA) 2015
Abstract A moral right to health or health care is a special instance of a right to fair equality of opportunity. Nation-states generally have the capabilities to specify the entitlements of such a right and to raise the resources needed to satisfy those entitlements. Can these functions be replicated globally, as a global right to health or health care requires? The suggestion that ‘‘better global governance’’ is needed if such a global right is to be claimed requires that these two central capabilities be present. It is unlikely that nation-states would concede these two functions to a form of global governance, for doing so would seriously compromise the authority that is generally included in sovereignty. This claim is a specification of what is often recognized as the ‘‘sovereignty problem.’’ The argument of this paper is not an ‘‘impossibility’’ claim, but a best guess about whether the necessary conditions for better global governance that supports a global right to health or health care can be achieved. Keywords Progressive realization Right to health Sovereignty problem Entitlements to health or health care Global governance
Overview I address three main questions in this essay. What is a progressively realizable moral right to health within a society and how should its entitlements be determined? What is the relationship between global governance and the progressive realization of such a right to health if that right is claimed globally? If adequate global governance is a necessary condition for progressively realizing a right to health & Norman Daniels
[email protected] 1
Department of Global Health and Population, Chan School of Public Health, Harvard University, Rm 1210 D, Bldg 1, 665 Huntington Ave, Boston, MA 02115, USA
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globally, but such governance is not obviously feasible, what are the implications for claiming that there is such a right to health globally? By ‘‘progressive realization,’’ I mean the increasing satisfaction of a right to health as increases in resources and investment in health permit, where assistance from better-off societies to worse-off ones contributes to a reasonable increase in resources use for health and improved institutions to promote and protect that health in worse-off societies. In the ‘‘What is a Progressively Realizable Moral Right to Health and What are Its Entitlements?’’ section, I begin with the notion of a moral right to health (or more narrowly, health care) within a society. Such a moral right, I argue, carries with it entitlements for its population to a reasonable array of services, as determined by a fair deliberative process, given reasonable resource constraints. Countries that do not progressively realize such a moral right to health (or health care) can be charged with violating a right that it is feasible to support since other countries with similar resource levels do progressively realize such a right. One implication of this view of a moral right to health or health care is that we cannot derive an entitlement to a specific treatment from such a right just knowing that the intervention has some positive effect in preventing or treating a condition that an individual bearer of that right is at risk of having or already has. When we move beyond a given nation-state and talk about progressively realizing a moral right to health (or more narrowly, health care) globally, we encounter problems that arise from the difficulty of finding analogs to assumptions about the capabilities that states generally have when they act on a moral right to health or health care. Specifically, it is plausible to assume two things about state capabilities. First, a state has the capability to implement a fair, deliberative process that facilitates agreement on the specific entitlements that follow from its residents having a moral right to health or health care, given a level of resources it can reasonably allocate to deliver on such obligations. Second, a state can marshal the resources necessary to meet the entitlements that such a process identifies. I am not, in the case of the first capability, assuming that states actually delegate decisionmaking authority to such agencies, for they seldom do; nor am I assuming that a given state actually raises and spends the resources necessary to meet the entitlements that people in it have. States usually can do so, however, and we have direct evidence that some states can do so over considerable periods of time, enough to conclude that they can sustain these capabilities. Even if states assign final decision-making power to certain authorities and charge the fair, deliberative process only with making recommendations to those authorities, these recommendations become a focus for further challenge to the states’ delegated authorities whenever their final decisions differ from the recommendations. Because there are problems finding the analogues of these capabilities of nation-states when we ask about progressively realizing a right to health globally, it is plausible to turn to better global governance in health to supply what these state capabilities can provide. In the ‘‘What Kind of Global Governance is Presupposed by Claiming the Progressive Realization of a Right to Health (or Health Care) Globally (as Opposed to Nationally)?’’ section, I consider how the progressive realization of a global (moral) right to health is affected by the kinds of global governance that now exist
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or might reasonably come to exist. I discuss the feasibility of establishing an agency that works across national borders to make recommendations, or even binding decisions, about including specific interventions in a benefit package that nations are responsible for delivering. I also discuss the feasibility of an agency that works across national borders and is capable of requiring nations to carry out any obligations they have to assist other nations in progressively realizing a right to health. If sovereign nations will only surrender minor authority to such agencies, then a serious coordination problem results for achieving the progressive realization of a right to health globally. This is the ‘‘sovereignty problem’’ that various commentators have noted in discussing global governance [15]. Consequently, prospects for better global governance are quite problematic unless better governance of health is part of a broader interest countries have in coordinated solutions to other problems. This is not an ‘‘impossibility’’ argument, only one that points to a serious obstacle to feasibility. Of course, we often do not know what is feasible, and yet we try to accomplish difficult tasks and often achieve surprising results. This argument only shows that we face a well-recognized obstacle to progressively realizing a right to health (or health care) globally. Without the prospects of better global governance (or at least better regional governance that can serve as a model for better global governance), progressive realization of a global right to health will remain the prerogative of nation-states, as it is now, with little assurance that international efforts to assist some nations can be coordinated enough to progressively realize a global right to health or health care. In the ‘‘If Global Governance Adequate to Progressively Realizing a Right to Health Globally is (Arguably) not Feasible, Can Such a Right be a Claim of Justice?’’ section, I consider the implications of what we know about the feasibility of adequate global governance in light of the significant coordination problems we now face. Specifically, I consider what we can say about the justice of requirements to progressively realize a right to health on a global scale. My suggestion is that we should try to improve global governance for health since such improvements can improve population health. But, we should be aware that we lack direct evidence that justice requires the progressive realization of a right to health globally.
What is a Progressively Realizable Moral Right to Health and What are Its Entitlements? I have argued that a moral right to health or health care is a special case of a right to fair equality of opportunity [4, 7, 19]. A principle of justice assuring fair equality of opportunity requires society to introduce institutions that promote the equity of talent and skill development in a context of other allowable inequalities. Providing fair equality of opportunity to a population thus goes beyond the avoidance of discrimination, which is the goal of formal equality of opportunity. I borrow the justification for a right to fair equality of opportunity, which includes this broad right to health as a special case, from work in the general theory of justice, especially from Rawls [19, 20], but also from others [7]. The social protection of our
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health makes a significant, but limited, contribution to preserving those opportunities. Since society must therefore provide goods and services through institutions that are aimed at equity in the development of talents and skills, a right to fair equality of opportunity has the structure of a positive right to assistance rather than a right of non-interference, as that is usually conceived [11, 14]. It is thus similar in structure to a right to health or health care. Both rights require society to marshal resources in their service to meet the entitlements of their bearers. A moral right to health includes health care and various other determinants of health, some of which may not fall within the traditional health sector [8]. Health care, as I understand it, includes not just medical care but also traditional public health measures aimed at reducing risks to population health, such as those providing clean and safe working and living environments. But some of the social determinants of health, such as education and road safety, are not in the health sector. Accordingly, a right to health is broader than a right to health care. Nevertheless, to anticipate a common objection to talk about a right to health, I stipulate (and understand) there is no violation of an individual’s right to health if society has done what it is obliged to do but the individual’s health fails anyway. A right to health does not thus assure individuals of health itself, but only that society has done all it is obliged to do to keep them healthy. Both a right to fair equality of opportunity and a right to health treat individuals as part of a population. Consequently, it matters greatly how a society invests resources in meeting its obligations to protect population health and to distribute that health fairly. These two goals sometimes converge but also sometimes conflict. Generally there will be reasonable disagreement about how to allocate resources to those tasks [9]. Each resource allocation to an intervention has ‘‘opportunity costs,’’ namely, the alternative uses and their relevant consequences to which those resources could be put [12]. This is a general truth. It is the case when we aim to make the system maximally efficient, say by selecting the most cost-effective services. It is also true when we use resources in ways that reduce objectionable health inequalities at the cost of some aggregated effects. We have to make sure that what we provide does not displace more important interventions that we ought to provide. The value of the ‘‘opportunity costs’’ must not exceed the value of what we decide to do or we are not using the resources appropriately given our goals. Specifically, the ‘‘more important interventions’’ are more important in light of the stated objectives of improving population health or distributing that health equitably. When people clearly agree how to use their resources to meet important goals, they do not need a fair, deliberative process. Suppose all people agree that a flu vaccine should be used to save the most lives at risk. Then, they can agree to use a scarce supply of the vaccine to protect those at greatest risk of death from flu, say children and the elderly. Unfortunately, such a specific agreement on a relevant principle is not the general case. Instead, people often disagree about which uses of health care resources meet more important needs. The disagreement about allocation is rooted in disagreement about which principles apply or about how to apply them to the problem.
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Despite the fact that there may be no prior agreement on substantive principles, people may nevertheless agree on what they view as a fair process to use to settle their disagreement. Specifically, if people lack substantive agreement on principles that are fine-grained enough to apply to health care resource allocation decisions, they can resolve their disputes about such issues (or at least narrow them) through an appeal to procedural justice. James Sabin and I have argued that in this kind of problem they should resolve their disagreements through a fair, deliberative process commonly known as ‘‘accountability for reasonableness’’ [10]. Consider an important implication of this view. Suppose that some intervention would cure an individual (say Sally) of a condition or prevent her from getting it. Still, her right to health or health care does not by itself imply that that treatment is owed to her as an entitlement. The opportunity cost of providing it may be too great. Perhaps other claimants with the same right to health care should be treated instead. For example, their claims may be stronger because their conditions are more serious. In short, given reasonable resource constraints, a health system cannot provide every benefit that is possible. Hard choices must be made about what is delivered and what is not delivered. Limited resources require such choices, including decisions not to provide certain services and to provide others instead. Though doctors have different obligations towards different individuals (some are their patients) [5, 6], arguably a moral right to health means that a health system (and the government responsible for it) has equal obligations to all individuals covered by that right. Accordingly, an individual is entitled to a treatment if, given its constraints on resources, the health system fairly decides, through such a deliberative process, to include it in the array of services it offers to all in need. (Unfair decisions may determine legal rights but they do not determine moral rights or entitlements; we are talking only about such moral rights and entitlements.) Fair decisions to not include some services means that some claims that individuals make, who have a right to health care, are nevertheless not claims to entitlements they have. Reasonable resource limits mean that not everything can be done for everyone in need. The progressive realization of a right to health means that we cannot deduce that a specific intervention is an entitlement of that right unless the intervention is part of an array of services to which all must have access, according to a fair process. A critical question is who decides what constitutes a fair process, and how. This question becomes one about appropriate global governance when we shift from decision-making within a state to the global arena. A moral right that is progressively realized carries with it only those entitlements that are fairly decided upon, or so I am claiming (see also [7, 9, 10]). If we embody a moral right in a constitution, the constitutional right to health or health care embodying that moral right should have the same entitlements that the moral right to health or health care has, under reasonable resource constraints. What kinds of entitlements are included in the agreement that is embodied in the covenants and treaties saying there is a human right to health or health care? According to the Committee on Economic, Social, and Cultural Rights (CESCR) [22, 23], the body that the United Nations has authorized to comment on the meaning of social rights such as the right to health care, these entitlements must reflect the level of resources
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available in different countries. Thus, the progressive realization of a human right to health or health care must take those different limits into account. Obviously, a poorer society may not be able to do all that a better-off one can do to realize a right to health. For example, it may not be able to treat or prevent all the conditions that a better-off one can. It, however, can develop targets that progressively realize the right to health or health care, and these targets may shift over time [25, 26]. In 2004 in Mexico, for example, introducing the Seguro Popular (SP) with a thinner benefit package than the social security scheme (IMSS) may have been justifiable because it meant more people had some health care coverage, just as it may have been justifiable in Colombia in 1995 to introduce a subsidized scheme with a smaller benefit package than the contributory (social security) scheme had. The highly visible inequality in health care that resulted in both cases, however, becomes a reasonable target for elimination later [3]. After all, the large part of the population covered by the less robust benefit package arguably should not have less protection from a constitutional right to health care than the part of the population covered by the contributory scheme, even if the part of the population that has the more robust benefit package contributes more. A similar principle is present in a universal coverage scheme financed by a progressive general tax: those who earn more and can presumably pay more in taxes do, but they get the same benefits as those who can afford to pay less get. In this case, their paying more for health care is not by itself a justification for receiving more health care.
What Kind of Global Governance is Presupposed by Claiming the Progressive Realization of a Right to Health (or Health Care) Globally (as Opposed to Nationally)? Adequate global governance of health is a necessary condition for the progressive realization of a moral right to health (or health care) globally. The argument for this claim is that there are (at least) two conditions that are necessary, at least practically, for the progressive realization of such a right globally. (My argument turns on the right applying across national borders, so a ‘‘global’’ application, though commonly appealed to, is not the core of the issue. Since the same issue of crossing national borders applies at the global level, I refer to a progressively realizable global right in this paper.) These conditions are analogues in the global context of the capabilities earlier identified that nation-states have. Specifically, (1) there must be clarity about the entitlements that must be assured to the populations protected by such a right, and (2) there must be adequate assistance by better-off states to worse-off ones if all societies are to protect their populations with such a right. I do not mean that adequate global governance is a conceptually necessary condition; all I mean is that adequate global governance is a practical requirement— what the condition requires has to be provided. Perhaps functional or causal necessity is all that is involved. To show that I am not stating a conceptual necessity, we can construct alternatives that do not involve such agencies. For example, we can imagine that people happen to agree on what entitlements are involved, for each level of resources. Such agreement is the intended endpoint of the activities of the
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global agency that I think we must have [posited in (1)]. Similarly, we can imagine that all parties raise the appropriate resources without anyone enforcing their compliance with what they are obliged to raise and that this voluntary compliance matches the function I have said is carried out by a global agency that enforces such compliance. Since we do not have such fortunate agreement and voluntary compliance globally, then we must require adequate global governance in the form of agencies that function to define those entitlements and produce compliance with obligations of assistance. Accordingly, there must be an agency globally that can agree to the content of the entitlements that a right to health (or health care) involves as it is being progressively realized (call this agency a global entitlement definer). There must also be a global mechanism that can enforce the obligations of better-off societies to assist worse-off ones (call this agency a global assistance enforcer). Without a global entitlement definer (or its equivalent), then societies that insist that the entitlements they actually provide are all that their populations may claim can only be challenged by unauthorized critics of the adequacy of the entitlements that they provide (or agree to provide). A properly authorized agency can assess a given society’s (government’s) claims about its resources and the entitlements those resources allow to its own view of the resources that are available to that society and the entitlements they permit. Such an agency can effectively expose any fig-leaf a given country is hiding behind in the name of progressive realization [16]. An even stronger agency could require a given society to marshal available resources to deliver a set of appropriate entitlements to its population. An agency of either strength goes beyond what is now available and thus constitutes a form of adequate global governance. There is an important presupposition built into the description of the global assistance-enforcing agency involved in the second necessary condition for the progressive realization of a right to health globally. This agency has the power to enforce international obligations by better-off societies to assist worse-off societies in establishing the health system that can support an appropriate set of entitlements to its population. Specifically, having this agency presupposes that we can establish what are the actual obligations of better-off societies to worse-off ones, an issue I leave aside here. A possible further necessary condition is the existence of an agency capable of raising the resources needed to support the appropriate set of entitlements—perhaps an agency with tax powers (call it the global taxer). Could the voluntary compliance of better-off states to assist worse-off ones rise to that task, obviating the need for an agency that enforces such assistance? Similarly, could all nation-states agree on the specific entitlements to the care owed their residents under different resource constraints? Is there another option short of the appeal I have made to the practical ‘‘necessity’’ of global agencies that would compel such compliance and agreement? Unfortunately, there is an unsolved coordination problem that would have to be solved in either case [17, 18, 21]. For there to be voluntary compliance with the entitlements that reasonably come with progressive realization of a right to health, those in power in the governments that are obliged to deliver those entitlements would have to see that it is in their interest to do so (I am assuming that rulers (even democratically elected officials or rulers) generally, if not always, act in their own
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interests). Whether they are democratically elected or not, they may see delivering on those entitlements as conflicting with their interests. That problem can arise because their interests may be served better by not spending what is required on health care or health, perhaps because they have the opportunity to divert those resources to other purposes that better advantage them. Unless the societies they rule can compel them to have interests that are aligned with meeting those entitlements, the governments they rule will not voluntarily comply. Similarly, neither will better-off states comply with obligations they have to assist worse-off states if the rulers of those states (which may be democratically controlled) see their interests differently and meeting the obligations of those nation-states to assist others does not lead to best satisfying those interests. My point is the simple one that ruler interests and national interests may not coincide and thus there is likely to be no voluntary compliance with either obligation. That is, these interests may well determine policy, not the obligations that are not being carried out voluntarily. The standard way to solve this problem is to alter the payoffs and so to modify the interests of rulers. Such alteration would better incentivize compliance and reduce the incentives for non-compliance, perhaps through punishment. The ability to alter the incentives in the current situation is lacking, however, absent adequate global agencies. Consequently, rulers will pursue their own interests to the disadvantage of providing the entitlements that their populations have to health or health care. The argument presented so far assumes what we have now, nation-states as the agents making global decisions. The coordination problems just noted arise because the nation-states (in the form of their ruling bodies or agents) fail to see their interests as coinciding with what is assumed to be their obligations. Avoiding this assumption that the world consists of nation-states is difficult. In much of the literature, this problem is referred to as the ‘‘sovereignty problem’’ [15]. To avoid the assumption, these existing states would have to agree to form a federation of states in which each surrenders some ability to make certain decisions to a global government, but retains the ability to make others. We have no working models of such an arrangement—with the possible exception of the European Union, which is only regional, not global, and very short-lived so far. Treaties that include all or nearly all nations as signers and ratifiers are the closest we get, but such treaties still posit sovereign nations as parties to them, as do treaties by some states (but not others). My claim can be put quite simply—nation-states are unlikely to agree to the establishment of agencies of the sort that are necessary for global governance that is adequate to progressively realize a global right to health or health care. An agency that can specify the entitlements of a progressively realized global right to health care would take away from nation-states their authority to make decisions about what those entitlements are. Even a weaker form of such an agency (e.g., one that could only make recommendations about what those entitlements should be) would pose a major challenge to the decisions such a state might still be willing to make. Similarly, states are unlikely to surrender the authority over resources involved in assisting other states that they have obligations to assist. The possible gains from surrendering authority in these cases do not seem to be equivalent to the losses, from the perspective of a sovereign state.
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Evidence for this view comes out of the behavior of generous donor states in the context of major natural disasters, such as the earthquake in Haiti [1, 2], or the Ebola outbreak in West Africa [13]. The lack of coordination of assistance in these settings undermines these efforts. In the case of Haiti, donations flooded in, but there was highly inadequate coordination of these resources because each state wanted to retain authority over what it contributed, perhaps to gain what advantage could be gained from being seen as a donor. This argument is not intended to show that better global governance is not possible in a world populated by nation-states or that some improvements in global governance have no bearing on what would be required by the progressive realization of a right to health globally. Better global governance can have a positive effect globally on the improvement of population health and its fairer distribution. Better global governance clearly is both needed and possible. For example, better surveillance arrangements were introduced globally when it became clearer that such measures could benefit all after the SARS epidemic [24]. Similarly, the better global governance globally that led to the Millenium Development Goals, including the agreement to pursue a reduction in maternal mortality rates—does have an important impact on population health. My argument does not deny that there is that impact, nor does it deny that improvements in global governance for health are important in improving population health in many countries. My argument does suggest that there is a major obstacle to producing the kind of global governance that forms a necessary condition for progressively realizing a right to health or health care globally. The central problem with the kinds of global governance needed to progressively realize a right to health or health care is that the progressive realization of such a right does not in the same way benefit all. The benefits to better-off countries from improving population health in worse-off countries and reducing inequities in the distribution of that health globally are much less apparent than the global (arguably universal) benefits that result from better surveillance, e.g., of pandemics. The difficulty of characterizing how the progressive realization of a right to health globally benefits those who are already doing what progressively realizes the right to health in their own society means that less can be done to incentivize all countries to accept what global governance requires in protecting and promoting the health of all.
If Global Governance Adequate to Progressively Realizing a Right to Health Globally is (Arguably) not Feasible, Can Such a Right be a Claim of Justice? If we accept the conclusion that some rights are unachievable under the conditions that we probably shall face, then we might say that the progressive realization of a global right to health or health care is still a requirement of justice—albeit probably an unachievable one. Some would then be satisfied to call it ‘‘aspirational.’’ But there is a problem with this claim about the requirements of justice. It is widely held and (I believe) true, that justice cannot require people to do what they cannot do, including establishing adequate global governance if that proves
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infeasible. If this constraint on views about justice holds, and having such a right is a requirement of global justice, then it must be possible to progressively realize a right to health globally. But that is not possible if adequate global governance is needed to progressively realize that right globally, and such governance cannot be achieved. If I am right in my argument that adequate global governance of health is probably infeasible, then there is a problem with the claim that there is a global right to health or health care. What shall we say, then, about the claim that there is a global right to health if we cannot progressively realize it in a world of nation-states? We might insist that the problem I posed at the beginning of this section is not as serious as I suggested and go on to affirm that there is a right to health globally even if it cannot be progressively realized in a world comprised of nation-states. After all, saying that we cannot achieve global governance adequate to progressively realize a global right to health or health care does not make the claim that there is such a right different from many other claims of justice. We assert many other claims to rights that are not possible to satisfy under some conditions, but they are nevertheless feasible to satisfy under others, and we do not therefore conclude that they are not requirements of justice. For example, I may know that I cannot eliminate a given racist practice in certain circumstances, say because the racist rulers in power cannot be replaced with those supporting a nonracist institution. If I know from evidence in other conditions that people can sustain a non-racist practice, then I may know that the non-racist practice is something people generally are capable of implementing even if they cannot achieve it under the conditions in question. In the current case, however, we lack any direct evidence that the global right to health is feasible under other conditions. Once we set aside the counterfactual condition of a global government (which might be possible under some extreme circumstances, such as a threat to all nations from a comet or aliens, as in various science fiction movies), there is no other condition under which it is likely that adequate global governance arises. (I personally hope I am wrong on this matter, but that is only a hope.) My claim is that some may hope adequate global governance is feasible, but they and we lack direct evidence that it is. Unlike the case of knowing that some other societies can sustain institutions that make a just arrangement we cannot achieve in the conditions we face, there is no evidence from other contexts that adequate global governance is feasible. It may still be true that believing there is such a right that motivates some people to improve population health in ways (say, by reducing maternal mortality rates where they are high) that are coextensive with what the existence of such a right would require. We may all welcome such interventions for the improvements in health they bring. Their efforts may eventually produce evidence that adequate global governance is feasible, and that too would be welcome. But, currently no one actually has evidence it is feasible. Consequently, if an unachievable right is not a requirement of justice at all, I am suggesting that we do not yet know if justice requires a global right to health.
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