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Min 250 words, Max 500 words The place of human rights and the common good
in global health policy

John Tasioulas1 • Effy Vayena2

Published online: 1 August 2016

� The Author(s) 2016. This article is published with open access at Springerlink.com

Abstract This article offers an integrated account of two strands of global health
justice: health-related human rights and health-related common goods. After

sketching a general understanding of the nature of human rights, it proceeds to

explain both how individual human rights are to be individuated and the content of

their associated obligations specified. With respect to both issues, the human right to

health is taken as the primary illustration. It is argued that (1) the individuation of

the right to health is fixed by reference to the subject matter of its corresponding

obligations, and not by the interests it serves, and (2) the specification of the content

of that right must be properly responsive to thresholds of possibility and burden. The

article concludes by insisting that human rights cannot constitute the whole of

global health justice and that, in addition, other considerations—including the

promotion of health-related global public goods—should also shape such policy.

Moreover, the relationship between human rights and common goods should not be

conceived as mutually exclusive. On the contrary, there sometimes exists an indi-

vidual right to some aspect of a common good, including a right to benefit from

health-related common goods such as programmes for securing herd immunity from

diphtheria.

Keywords Global health � Justice � Human rights � Right to health � Common
goods � Public health

& John Tasioulas
john.tasioulas@kcl.ac.uk

Effy Vayena

effy.vayena@uzh.ch

1
Dickson Poon School of Law, King’s College London, Somerset House East Wing,

London WC2R 2LS, UK

2
Epidemiology, Biostatistics and Prevention Institute, University of Zurich, Hirschengraben 84,

8001 Zurich, Switzerland

123

Theor Med Bioeth (2016) 37:365–382

DOI 10.1007/s11017-016-9372-x

Content courtesy of Springer Nature, terms of use apply. Rights reserved.

What are the demands of justice applicable to global health policy? By global health

policy we mean those practical measures, whether adopted and implemented by

international organizations, states, corporations, or agents of some other kind, that

have as their ultimate goal, in the words of the World Health Organization’s

evocative motto, ‘‘health for all.’’ They are legal and other measures aimed at

protecting and promoting the interest in health of every human being around the

globe. In keeping with a long philosophical tradition, we deploy two distinct senses

of the idea of justice. According to the first, justice concerns moral duties that are

owed to and claimable by others as a matter of individual rights. In another, broader

sense, justice concerns moral duties governing our conduct towards others,

especially insofar as they fall within the proper remit of public decision-making.
1

The second sense of justice, the domain of other-regarding moral duties, includes

the first sense, the domain of justice as rights, as a component. But it also includes

other moral duties, notably duties to preserve and promote the common good that

may not be linked to rights.

Transposed to the global context, justice, to a significant degree, consists in the

morality of individual human rights and global common goods. To this extent, a

justice perspective on global health policy must be bifocal in character. However,

we contend that it is a profound error, if also a common one, to construe the two

strands of justice as being in an inherently dichotomous and generally antagonistic

relationship. Not only do we need to draw on both human rights and common goods,

but the ‘individualism’ of human rights is not to be starkly juxtaposed against the

‘collectivism’ of the common good. On the contrary, human rights are an integral

component of some global common goods. This article seeks to make a start on

elaborating the meaning and implications of such an integrated, bifocal perspective

in relation to global health policy.
2

We begin, in the first section, by outlining the distinctive character of human

rights: they are moral rights possessed by all human beings simply in virtue of their

humanity. Then, in light of the prominent role of human rights in global health

policy debates, the next two sections focus on the human right to health. One

important question is how that right is to be individuated within the overall set of

human rights. Contrary to a popular, radically ‘inclusive’ interpretation, we suggest

characterizing the human right to health’s scope of concern primarily by reference

to obligations regarding health care services and public health measures. This way

of understanding the human right to health makes it clear that it is only one among a

number of human rights that serve our interest in health and to which global health

policy needs to be responsive. We then offer an account of how to specify the

content of the human right to health, i.e., the content of the duties regarding health

care services and public health measures associated with the right. The process of

content specification, we argue, involves the application of a threshold criterion that

incorporates considerations of possibility and burden. In the fourth section, we

1
For these two senses of justice, see Finnis’s discussion [1].

2
An important thrust of the human rights campaign in relation to the AIDS pandemic pioneered by

Jonathan Mann was to reject ‘the prevailing view … that individual-centered human rights conflicted with
community-oriented public health’ [2, p. 245]. This article aims to contribute to this attractive

integrationist view by deepening its philosophical basis.

366 J. Tasioulas, E. Vayena

123

Content courtesy of Springer Nature, terms of use apply. Rights reserved.

explain why human rights cannot do all the work in shaping a just global health

policy, giving special attention to the crucial role of health-related global common

goods. We also respond to the converse hypothesis that global policy must be

predominantly concerned with common goods as opposed to human rights. This

response turns on showing how common goods may include, as a component,

arrangements that secure human rights.

Introducing human rights

Global health policy advocates have repeatedly called for a post-2015 development

agenda that gives a prominent place to policy objectives couched in the language of

human rights. These calls echo the chorus of agreement among a wide variety of

international actors—including the United Nations, NGOs, governments, and

ordinary citizens—on the vital importance of a human rights basis for the new

development goals more generally [3–5]. Charitably interpreted, as more than just a

rhetorical ploy intended to convey a sense of urgent commitment, this emphasis on

human rights embodies a vital insight. The adoption of goals simply concerned with

the promotion of human welfare—such as our interests in health, prosperity,

education, etc.—is not enough. Human rights inject a distinctive moral dimension

into policy objectives, one that is especially responsive to the plight of victims of

injustice throughout the globe.

The distinctive character of human rights consists in the fact that they are

universal moral rights: moral rights possessed by all human beings simply in virtue

of their humanity.
3
They mark the threshold at which each individual human being’s

interests generate duties or obligations (we use these terms interchangeably) on the

part of others to respect, protect, and promote those interests in various ways. The

violation of an obligation is a moral wrong, whereas no wrong is committed simply

by thwarting another’s interests or leaving those interests unpromoted. For example,

neither beating a rival for a coveted job nor failing to donate your spare healthy

kidney for a transplant need be wrongful. Human rights are a distinctive moral

register of critical assessment, beyond assessments tracking rises and falls in

individual or collective welfare. The foregoing does not mean that wellbeing as

such, or elements of it such as the global burden of disease, lacks normative

significance. It is just to say that it cannot displace the distinctive kind of moral

assessment introduced by human rights: the idea of moral duties owed to each and

every human being, the violation of which specifically victimizes the right-holder.

Indeed, the discourse of human rights is at the core of a ‘global justice’ approach to

health: justice, on one historically influential interpretation, consists in the rights-

involving part of morality, and the sub-category of human rights are those moral

rights that are held globally because they are possessed by people simply in virtue of

their humanity.

3
For a general account of the nature of human rights relied on here, see [6]. This article offers a critique

of rival, ‘political’, interpretations of the concept of a human right offered by John Rawls, Charles Beitz,

and Joseph Raz.

The place of human rights and the common good in global… 367

123

Content courtesy of Springer Nature, terms of use apply. Rights reserved.

So far, we have spoken of human rights as a certain kind of moral norm. Of

course, there is now a firmly established doctrine of international human rights law

in which various health-related human rights form an integral part.
4
Moreover, in

excess of two-thirds of national constitutions explicitly include health rights, often

by incorporating provisions in international human rights treaties [2, p. 263]. But the

morality of human rights is independent of its recognition by domestic or

international law. A right does not need to be actually legally enshrined, let alone

enforceable, to exist as a human right. On the contrary, human rights law is best

understood as deriving its distinct identity from the attempt to give legal effect to

background human rights morality, insofar as it is appropriate to do so. It is the

background morality of human rights that is the main focus of this chapter. Three

further preliminary observations are worth making in this connection.

First, the duties associated with human rights include positive duties to engage in

certain forms of conduct, such as the provision of health care services, as well as

negative duties to refrain from certain conduct, such as administering medical

treatment without consent. Moreover, the positive duties associated with a right may

be primary duties. In other words, they are duties that are not parasitic on other

duties associated with the right, such as positive duties to compensate or make

reparation triggered by a violation of some prior duty. Instead, human rights also

impose primary positive duties to make certain goods and services available to their

holders. Of course, there are special problems in the allocation of positive primary

duties to duty-bearers, and in the specification of their content, which do not arise in

the case of negative primary duties [8]. But these differences between the two kinds

of rights, which are largely matters of degree, do not warrant the wholesale

expulsion of so-called ‘socio-economic rights’, with positive primary duties, from

the category of bona fide human rights [9].

Second, there is no compelling a priori reason why the duties associated with

human rights should be thought to fall exclusively on states, at least as primary

duty-bearers. This idea is a distortion that a misplaced focus on legal instruments—

constitutions and treaties—has introduced into thinking about human rights. Instead,

we should maintain an open-minded and flexible attitude to the question of who the

relevant duty-bearers are in any given time and place [6, 10]. Multinational

corporations, international organizations, and even individuals can be directly

subject to human rights-related duties. Pharmaceutical companies, for example, may

be directly subject to human rights obligations to make antiretrovirals and other

drugs available to developing countries at a significantly lower cost than market

price [11]. In an environment of accelerating globalization, with a concomitant

decline of state power relative to various other global actors, the importance of not

conceptually restricting human rights obligations to states is all the more

pronounced. Indeed, precisely this insight is at the heart of the innovative UN

Guiding Principles on Business and Human Rights, which seek to provide an

authoritative specification of the human rights responsibilities directly applicable to

corporations [12].

4
For a fine study of the human right to health, see [7].

368 J. Tasioulas, E. Vayena

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Finally, another a priori commitment to be resisted is the idea that a pro tanto

case always exists for enshrining human rights as legal entitlements, let alone for

taking the further step of making them enforceable legal entitlements [6, 13]. Law is

a vitally important mechanism of implementation, but it remains one mechanism

alongside others, including social conventions, public opinion, and the inculcation

of a rights-respecting ethos through fostering the internalization of human rights

norms by individual and collective agents. As Sen has stressed, whether and to what

extent individual human rights should be enshrined in counterpart legal rights are a

matter of what is inherently appropriate and works in all the circumstances, which is

subject to considerable variation in time and place. Experience shows that making

human rights legally claimable is sometimes counter-productive. For example, in

Brazil the constitutionalization of the right to health appears to have facilitated a

transfer of health resources to wealthier members of society who can afford the cost

of litigation [14]. The overall health budget remained fixed, but the better-off

engaged in litigation against the government to siphon off a larger share of it for

themselves, often in order to treat less serious ailments.
5
To take another example,

the economist Jeffrey Sachs, one of the chief architects of the Millennium

Development Goals (MDSs), has ascribed the success in meeting those goals partly

to the fact that states are not legally bound by them. This lowered the cost of states

publicly signing up to the goals in the first place, enhancing the likelihood that they

would do so [16]. In short, the difficult and multi-faceted question of legalization is

one that deserves extensive consideration on a case-by-case basis. No presumptive

answer to it is already inscribed in the very nature of human rights.

Individuation and inclusivity

Human rights exist insofar as universal human interests generate obligations on

others to respect, protect, and promote those interests in various ways. Interests are

here understood as the elements of wellbeing, the realization of which in a person’s

life make it a better life for them. We favour an objectivist and pluralistic account of

the interests that ground human rights [17]. They are interests human beings possess

independently of whether they actually desire their realization, and they are not

limited to one kind of interest—autonomy, for example—or to one category of

interests, such as those interests that qualify as basic needs [18]. Instead, a plurality

of genuinely universal human interests are capable of generating duties on the part

of others in the case of all human beings, simply in virtue of their humanity.

Moreover, essential to the rights-generative role of human interests is that they

belong to distinct individuals with equal moral status in virtue of their humanity: the

5
This need not be an inevitable consequence of legalization; cf. the South African Constitutional Court’s

decision in Soobramoney v. Minister of Health (Kwazulu-Natal) (1997), where it was held that provision

of dialysis for a patient with chronic renal failure was not required by the constitutional right to health,

partly because this would prejudice the satisfaction of other health needs that have to be met out of the

state’s budget [15].

The place of human rights and the common good in global… 369

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Content courtesy of Springer Nature, terms of use apply. Rights reserved.

status of human dignity. This is central to explaining the resistance of human rights

to trade-offs both against other rights and against non-rights based considerations.
6

The pluralistic theory of human rights claims not only that a plurality of interests

is relevant to the justification of human rights generally but also that any given

individual human right is typically grounded in a plurality of interests, such as

autonomy, health, knowledge, friendship, accomplishment, play, etc. [17]. The right

not to be tortured, for example, is grounded not only in one’s interest in autonomy

but also in one’s interest in being free from pain and in being able to form intimate

and trusting relationships. This is also true of the human right to health: it serves not

only one’s interest in health but also various other interests that enjoying good

health can enable one to realize, such as making friends, acquiring understanding, or

accomplishing something with one’s life. Indeed, the right to health may even

include entitlements to medical services, such as non-therapeutic abortions or

cosmetic surgery, that are not primarily intended to serve the health interests of the

right-holder. Hence, a diversity of interests helps to justify the existence of a human

right to health and to shape its associated obligations.

One way to fall into the trap of assuming that the human right to health is

grounded exclusively in our interest in health is to adopt an unduly expansive

interpretation of health. This is precisely what the WHO did in the preamble to its

constitution, which notoriously states that ‘health is a state of complete physical,

mental and social well-being and not merely the absence of disease and infirmity’

[20]. But, as has been repeatedly shown, this definition is far too broad. Health, on

any remotely useful understanding, is one element of wellbeing among others, not

the whole of it. And this remains the case even though health bears pervasive

constitutive and instrumental relations to the other elements of wellbeing. For the

purposes of this article, we take health to be centrally concerned with the effective

functioning of standard human physical and mental capacities [21]. A person can

enjoy such functioning even when they are deficient in other elements of wellbeing,

such as accomplishment and enjoyment. Moreover, they may even reasonably put

their health at risk in order better to achieve some other aspect of wellbeing.

There is a further crucial point worth making about the individuation of the

human right to health. Although many familiar human rights serve our interest in

health in all sorts of important ways, this does not automatically render them

components of the general human right to health. Yet, such an overly inclusive

interpretation of the right to health has been advocated by the Committee on

Economic, Social, and Cultural Rights, in its influential General Comment 14, as

well as by other UN organs and leading global health scholars [22]. So, for example,

Gostin notes that General Comment 14 treats as ‘integral components of the right to

health’ entitlements to food, housing, life, education, privacy, and access to

information. Gostin himself suggests that this specification is probably too

‘constrained’ and should be widened to include ‘gender equality, employment,

and social inclusion’ [2, p. 257]. This inclusive approach is echoed, and perhaps

taken even further, in a ‘Fact Sheet’ on the right to health jointly produced by the

WHO and the Office of the UN High Commissioner for Human Rights. According

6
For agency and needs-based accounts of human rights, see [11, 19].

370 J. Tasioulas, E. Vayena

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to this document, the human right to health incorporates a slew of other rights,

including gender equality and freedom from torture and other cruel, inhuman, or

degrading treatment or punishment [23, p. 3]. By a process parallel to the WHO’s

inflation of the notion of health to embrace all of human well-being, such

interpretations appear to absorb within the human right to health all the rights that

bear positively on our interest in health. Indeed, on this radically ‘inclusive’

approach, it is an open question, whether there is any right in the Universal

Declaration of Human Rights, or in any of the two leading Conventions on Human

Rights, which cannot be subsumed within the right to health, at least insofar as they

involve duties that serve the right-holder’s interest in health. After all, a colourable

story can be told of how denial of the rights to citizenship, political participation, a

fair trial, freedom of speech, religion, movement, and association, among others,

can have a seriously detrimental impact on health.

Now, something is clearly awry if the human right to health is lumbered with

such a bloated interpretation.
7
The mistake is to individuate the scope of the right

simply by reference to whether a putative rights-based duty is justified, in part, by

whether it serves a person’s interest in health. Many, if not most, human rights serve

a person’s interest in health, and this is because they serve a multiplicity of interests,

including health. Consider, for example, the fact that improvements in adult

women’s education accounted for 40 % of the reduction in mortality between 1960

and 1990, although the steps taken to enhance educational provision are not

obviously ‘health care’ measures [24, p. 94]. However, a human right is not picked

out straightforwardly by the profile of interests it serves but, we claim, by reference

to the subject matter of the obligations it generates.

More specifically, our suggestion is that the right to health should be construed as

principally ranging over obligations concerned with the provision of health care

services by medical professionals and public health measures, such as sanitation,

potable water, clean air, alcohol, tobacco control, and so on. On this view, there is a

moderate sense in which the human right to health is an ‘inclusive’ right. It

‘includes’, as justified components, various more specific rights to health care or

public health measures, such as a right to health insurance or measles vaccination.

By contrast, however, many so-called ‘social determinants of health’, which are

crucial in promoting the health of individuals, do not come under the right to health.

Instead, determinants such as education, housing, employment, and a social

environment free of gender and racial discrimination—insofar as there is a right to

them—more plausibly fall under other rights. The rationale for excluding these

social determinants is partly a holistic one, turning on avoiding excessive overlaps

with other rights there is good reason to recognise as distinct rights. But there is also

a deeper rationale, which brings back the role of the interests served by the right in a

more sophisticated manner. This is whether or not the object to which one has a

right serves one’s interest in health as its primary and direct objective, as in the case

7
The upshot is so peculiar that one might wonder why radical inclusivism is so popular. Mindy Roseman

has suggested (in conversation) that it is sometimes viewed as a way of upholding the credentials of the

human right to health against those who are sceptical of ‘socio-economic’ human rights, by showing that

it incorporates traditional civil and political rights. Whatever its efficacy at the level of rhetoric, however,

this strategy offers no real defence of the positive primary duties associated with the right to health.

The place of human rights and the common good in global… 371

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of clean air and water, or whether it does so indirectly, via the serving of other

interests which are its primary goal, as in the case of education and employment.

Health care services and public health measures satisfy this criterion, but the social

determinants of health typically do not.

One cannot, therefore, infer that the right not to be tortured or the right against

degrading treatment are incorporated in the right to health, since these rights are not

properly understood as having some specific connection with the provision of health

care or public health measures.
8
However, it is not always straightforward to draw

clear lines between different human rights. Sometimes the boundaries will be

blurred, and there will occasionally be tolerable overlaps in the scopes of rights. For

example, the provision of training in first aid, or of health education more generally,

might plausibly come under both the rights to health and to education. In

consequence, it may sometimes be that the identical course of conduct constitutes a

violation, or a fulfilment, of more than one human right. Often, laws will need to

draw sharp lines between human rights so that overlaps can be avoided, where this

would be beneficial in some way. We offer no general prescription for resolving

these difficulties of line-drawing in a principled way, beyond the remarks about

holism and primary and direct goals. What we have suggested, instead, is that the

starting-point in delineating the human right to health has to be different from that

adopted by the radical ‘inclusive’ view. That right, like all others, needs to be

individuated by reference to the subject matter of the obligations associated with it.

It might be objected that the rejection of the radical inclusivity thesis expresses

little more than a preference for tidy normative housekeeping. But this is not so: it

also underwrites the idea that there are a number of fairly specific and irreducibly

distinct human rights, so that enumerating a list of rights such as that in the

Universal Declaration is a meaningful endeavour. It further caters to the idea that

separating out various human rights is the best way of highlighting distinct

normative concerns that might otherwise be obscured. It is worth underlining a

significant practical pay-off of the approach we advocate. If one follows the

radically ‘inclusive’ account to the right to health, then one faces a needlessly

Herculean task when assessing the extent to which the right to health is being

fulfilled globally. This is because the extent to which all health-enhancing rights are

fulfilled will then need to be tracked. Progress towards such a massively sprawling

goal is hard to monitor, and extremely difficult to achieve. This inevitably breeds

uncertainty, frustration and despair. If one wishes to set a more determinate and

manageable but still demanding task, then one should adopt the more constrained

interpretation of the right to health.

It is clear, on the view we have developed above, that global health policy cannot

be exclusively responsive to the right to health. This is so even if attention is

confined to human rights that further the interest in health, as opposed to merely

placing constraints on how it may be furthered. Other human rights are also

extremely relevant, such as the rights to life, physical security, religious freedom,

8
For a similar interpretation of ‘the human right to health care’, see [25, pp. 205–206]. However, the

authors erroneously suppose that the human right to health exclusively reflects our interest in health [25,

p. 206].

372 J. Tasioulas, E. Vayena

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privacy, education, work, and so on. Indeed, as noted earlier, if one’s main concern

is with the promotion of health overall, securing a right such as that of the right to

education may be more important than other health-care related rights, such as the

right to a minimum level of health insurance. Adopting an overly ‘inclusive’

interpretation of the right to health threatens to obscure the vital independent role

these other rights must play in shaping global health policy.

Content specification

The preceding discussion of the fallacy of radical inclusivity concerned mainly the

individuation of the human right to health at an abstract level: the question of how it

is to be distinguished from other human rights. But a deeper problem concerns the

specification of its content, i.e., the content of the obligations associated with that

right, even after their general subject matter has been identified. This is a difficult

and many-sided topic, and here it is only possible to offer a few comments. Recall

that a human right exists when, in the case of each human being, universal …

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