that system is entitled to ask: ‘There are other more regulatory and redistributive sets of laws that would put me in a better position. How can government claim that this system shows equal concern for me?’”42 Moreover, as Cass Sunstein points out: “Those who denounce state intervention are the ones who most frequently and successfully invoke it. The cry of laissez faire mainly goes up from those who, if really ‘let alone,’ would instantly lose their wealth-absorbing power.”43 All politics are coercive, and it is most often the powerful who benefit from the way in which a given state is choosing to exert its regulatory power.
This need not be our understanding of the conditions necessary to exercise rights and live with dignity. For example, the Colombian Constitutional Court has articulated that the “social state of law” (estado social de derecho) set out in its 1991 constitution was formulated as it became clear “the extent to which human beings are not really free or equal due to natural and social limitations, among which the economic ones stand out. The realization of freedom and equality require measures, actions, entitlements and services that a person by herself cannot achieve. The democratic state thus evolved from a liberal democratic state to a social democratic state, animated by the purpose of ensuring that the material prerequisites of freedom and equality are effectively guaranteed.”44 Similarly, the South African Constitutional Court, writing of the commitments undertaken through its visionary 1994 constitution, stated: “Millions of people are living in deplorable conditions and great poverty…. These conditions already existed when the Constitution was adopted and a commitment to address them and to transform our society into one in which there will be human dignity, freedom and equality, lies at the heart of our new constitutional order. For as long as these conditions continue to exist that aspiration will have a hollow ring.”45 And as early as the 1970s, the Indian Supreme Court stated, “The mandate of the Constitution is to build a welfare society in which justice—social, economic and political—shall inform all institutions of our national life. The hopes and aspirations aroused by the Constitution will be belied if the minimum needs of the lowest of our citizens are not met.”46 Thus, the narrative of rights, and of dignity, in these countries, allows courts to assess laws and policies in ways that ensure attention is provided to the most disadvantaged.47
As noted, the United States, by contrast, has been among the staunchest of opponents to recognizing ESC rights at the federal level.48 Although at the state level, the right to education has been advanced through courts and social movements, the United States notably does not recognize a right to health care or health, and it famously frames specific entitlements to health care in terms of an abstract right to “privacy.”49 For example, in the United States, a woman’s right to an abortion is based on protecting her “personal dignity and autonomy” considered in a vacuum, divorced from the wider social and economic conditions of a woman’s life.50 If a poor woman cannot afford to pay for an abortion, the U.S. Supreme Court has held that the government has no obligation to subsidize it. Further, not a penny of the Affordable Care Act can be allocated to abortion services. And the preclusion of federal funding to subsidize poor women’s abortions is probably one of the single greatest barriers to care and contributors to late-term abortions by poor, adolescent, and marginalized women.51
The narrative of abortion as a private decision based on personal, “intimate suffering” also illustrates how the framing of rights issues has implications for public health responses. When rights frameworks fail to recognize the real differences in power that poverty and other social conditions impose on people’s autonomy to make choices about their well-being, health issues become, as Lynn Freedman writes, “Strictly individual problems conceived of as ‘risk factors’ to be treated with education in strategies of avoidance. Thus as the legal language imposes deeper and deeper constrictions on our expectations of entitlement and our understanding of justice, the corresponding health debate becomes more and more impoverished as well.”52
Reframing Global Poverty and Development from a Rights Perspective
If a rights perspective changes the calculus of what we—and the state—owe the most disadvantaged within our own societies, it also changes how we think about what we owe fellow human beings at the global level. As I discuss at length in Chapter 8, a great deal of extreme poverty in the world and deprivations of economic and social rights more generally are determined by decisions taken beyond national borders. Just as it is arbitrary that institutional arrangements within a country systematically favor certain classes over others, it is also arbitrary—if historically determined—that global institutional arrangements systematically deprive populations in certain countries of basic human rights. Thomas Pogge argues, “Severe poverty should be classified as a human rights violation” because “it is a foreseeable and avoidable effect of how the world economy is currently structured [which] foreseeably produces avoidable human rights deficits on a massive scale.53 Development is generally thought of as an affirmative act of “giving aid.” But Pogge asks us to rethink our view of causation to see how the rules of the global game systematically disadvantage some countries and the poorest people within those countries, with foreseeable health consequences.
In classic development thinking, poverty has been understood in terms of income poverty, as a generic shortage of income. Generally it has been defined as less than USD 2 a day (according to purchasing power); and extreme poverty as less than USD 1 a day, although more recently as less than USD 1.25 a day. According to these measures, approximately a billion people live in extreme poverty around the world. And recent studies have shown that 72 percent of the “bottom billion” now live in middle-income countries, notably in India and China.54
As the traditional view of poverty did not consider context or ability to convert income into access to food, education, housing, and health care, the formula was simple: increase jobs and income, and it will be better for the country—and poverty will be reduced. However, over the last fifty years, some schools of economics have focused on the global system and the relationship of “peripheral” to “central” economies, which historically established a perpetual cycle of dependency.55 And the path out of such cycles goes far beyond merely creating jobs, as these will pay wages that allow for increasingly less purchasing power within their countries; rather, the structures of dependency, including financial transaction regulations, need to be fundamentally altered.
In recent decades, development thought and practice have come to focus on poverty reduction in new ways, including “human development” and HRBAs. Amartya Sen, the philosopher who is the father of human capabilities theory, first introduced the idea of human development, and of poverty as a series of “unfreedoms.” Severe poverty, as discussed at the beginning of this chapter, means a lack of freedom to make choices over one’s life, and extreme poverty is an accumulation of unfreedoms that translates into an inability for self-government and ethical independence. In turn, human development is usually defined as the expansion of capabilities and freedoms, or the increase of the ability to “be and do” what one wishes.56 Income, in this view, is not an end in itself but a means to expanding choices, and only one of several. The UNDP issues annual human development reports which define human development as enlarging people’s choices and set out the most critical requirements for expansion of choices as living a long and healthy life, being educated, and having access to resources needed for a decent standard of living.
An HRBA to development is consistent with a human-development approach in terms of the goal of expanding choices or agency. However, in a rights framework, lack of access to basic health facilities, education, or housing are understood as violations of obligations to ensure minimum essential levels of different rights, for which states should be held accountable as duty-bearers. Just as there is an essential minimum in domestic contexts, in the context of international development policies, including antipoverty strategies, CESCR has stated that the core obligations for ESC rights “establish an international minimum threshold that all development policies should be designed to respect.”57
The dynamic of duty-bearer and claims-holder in a rights framework underscores how extreme poverty and the attendant violations of rights are relational.