July 11, 2000
The difficulty with invoking economic and social rights is that the duty to respect them is far more qualified than the duty to respect civil and political rights.
Kenneth Roth, Executive Director of Human Rights Watch

For well over a decade, the human-rights perspective has contributed to the evolving public-health understanding of how to address AIDS. We owe a particular debt of gratitude to the late Jonathan Mann, whom it was my privilege to know. He, more than anyone, highlighted the synergistic relationship between health and human rights.

He helped us understand that respect for the rights of people who are infected or at risk of infection by HIV is essential for preventing and treating the disease. If we risk discrimination, coercion, or breach of confidentiality, we are less likely to be tested, to seek treatment, or to learn how to avoid infecting ourselves or others. He also showed us that combating discrimination and social marginalization can help fight the vulnerability that handicaps many people, particularly women and girls, in their efforts to avoid infection.

Today, however, a new public-health challenge has come to the fore in the fight against AIDS. The issue is less what should be done to prevent or treat HIV infection than where we will find the enormous resources we need. Who should pay the cost of combating AIDS? In particular, does the industrialized world have an obligation to help the people of the developing world, and if so, what precisely is owed? Should obligations arising out of the AIDS pandemic differ from obligations arising out of other public-health crises or from the general need for basic health care?

None of these life-and-death questions admits easy answers. But international human-rights standards can help point a useful direction. The relevant standards are not the ones of civil and political rights – the issues of discrimination and individual freedom that so far have played the largest role in fashioning a response to AIDS. Rather, the pertinent standards are found in the less familiar terrain of economic and social rights.

The leading human rights treaty in this area is the International Covenant on Economic, Social and Cultural Rights. Other human rights treaties are also relevant, but today I will limit my discussion to the Covenant. Adopted by the U.N. General Assembly in 1966, the Covenant has been ratified by 142 governments. I should note that, unfortunately, our host country, South Africa, as well as my own country, the United States, have signed the Covenant but not yet ratified it, evidently for fear of being bound by it.

The Covenant requires governments to respect the right to the basic necessities of human life – the right to such things as work, education, food, clothing, and housing. The most important right for our purposes is Article 12, which proclaims the right of everyone to enjoy "the highest attainable standard of physical and mental health." Among other steps, this right requires governments to prevent, treat and control diseases, and to assure medical care and attention to everyone in the event of illness.

As you can see, if this right were fully respected, we would be well on our way to solving the AIDS crisis. Treatment would be available to everyone, and effective prevention strategies could be widely implemented. Yet, obviously, we are far from that moment. Indeed, when it comes to AIDS, it seems almost a cruel joke even to assert the right to health because governments seem to accord it so little weight.

Why is this? Why do rights-based arguments seem so ineffective in convincing governments to provide the resources needed to fight AIDS? The difficulty is best illustrated by contrast with a more classic rights-based appeal – say, a demand to stop torture. Even in countries that practice torture, torture is shameful. By exposing a government's use of torture, we can shame the government to curtail this inhumane practice. So why can't similar public shaming be used to force governments to devote the resources needed to fight AIDS? It can, but the process is not nearly as straightforward. Let me explain why, and how we might proceed.

The difficulty with invoking economic and social rights is that the duty to respect them is far more qualified than the duty to respect civil and political rights. Governments are expected to uphold civil and political rights immediately. Moreover, responsibility for doing so is assigned almost exclusively to the national government of the country in question; there is no opportunity to pass the burden on to others. By contrast, the economic and social rights treaty allows its rights to be fulfilled gradually, over time. Each government is asked only to "take steps" to secure these rights, and to do so only "to the maximum of its available resources, with a view to achieving progressively [their] full realization." Moreover, the treaty assigns responsibility for compliance more broadly – not only to the immediate national government, but also to the international community as a whole, through the duty to provide "international assistance."

This gradualism and shared responsibility make it much more difficult to shame a particular national government for its poor state of health care – or, for that matter, its inadequate education or housing. Governments can deflect criticism by blaming others. There is no easy way to move beyond this finger-pointing. Or, governments can simply assert that their current contributions, stingy as they might be, are all they owe to meet the AIDS challenge. Again, there are no clear benchmarks by which to rebut these claims.

So how, given these qualified, divided responsibilities, might we enforce economic and social rights? Or, more specifically for our purposes, how might we uphold a right to adequate AIDS health care? How do we move beyond the finger-pointing and evasions to hold particular governments responsible?