Harvard University Press Blog

Human Rights and Sustainable Development

From September 25th through 27th, world leaders gathered at the UN Sustainable Development Summit in New York to finalize and adopt the new Sustainable Development Goals (SDGs), a platform tasked with “transforming our world” to “free the human race from the tyranny of poverty and want and to heal and secure our planet” by 2030. To the editors of and contributors to the Health and Human Rights journal (HHR), the SDGs offered opportunities to reinforce international legal human rights obligations in an effort to promote equity and equality. As drafted, the SDGs missed those opportunities, failing to incorporate a consistent or integrated rights-based approach.

In a month-long series of posts, HHR contributors explored what the SDGs might mean for health and human rights. In the culminating summary below, reposted from the HHR blog, Executive Editor Carmel Williams and public health physician Alison Blaiklock offer a synthesis of the series, and highlight the continued need to prioritize human rights in the implementation and monitoring of the SDGs.

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Last weekend at the UN General Assembly, world leaders adopted the 17 Sustainable Development Goals (SDGs) and their 169 targets with much celebration. It had taken three years of political negotiation, public consultation, and enormous diplomacy to agree on the goals.

Contributors to our SDG SERIES welcome the SDGs as providing valuable opportunities to advance human dignity and rights. But their analyses of the SDGs also highlight missed opportunities, and signal the need for ongoing vigilance to keep human rights central to global development.

The SDGs were developed out of a far more participatory and global process than the Millennium Development Goals (MDGs), and now have a broader coverage of topics and targets. For example, the importance of peace to human development is explicitly recognised. The influence of human rights advocates can be seen in the acknowledgement of rights throughout the text of “Transforming our World: The 2030 Agenda for Sustainable Development” (2030 Agenda).

Human rights could have provided an integrating framework to the SDGs. Instead, as most contributors to the SDG SERIES note with disappointment, there is no cohesive approach, let alone a consistent rights-based approach, to the goals and targets.

Citizenship as Property

That legal scholar Ayelet Shachar could write in 2009 of birthright citizenship as a legal apparatus so enshrined as to seem a fact of nature and yet today leading candidates for the presidential nomination of one of our two major parties can pledge its repeal is but one of countless signs that the political times they are a changin’. While the Donald Trumps and Scott Walkers aim to do away with birthright citizenship so as to more tightly restrict membership in the American polity, Shachar intended to provoke a new consideration of the arbitrary criteria we use to bestow a status that carries such immense value as citizenship. She argued for seeing citizenship as a sort of inherited property, the ownership of which confers great privilege on those born in certain countries while those born in certain others may risk their lives in the trunks of cars or the holds of ships for a shot at sharing what for others is a lucky fact of life. Shachar’s The Birthright Lottery: Citizenship and Global Inequality—excerpted below—asks why we accept the hereditary passage of citizenship when such generational transfer has become so discredited in so many other realms.

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It was none other than Alexis de Tocqueville who, in Democracy in America, famously warned about the social and political dangers of inherited property becoming the basis of enduring privilege. A similar cautionary tale is worth telling about birthright citizenship in an unequal world like our own. In confronting the complexity of the current system of citizenship transfer, I aim to offer a new way of thinking about political membership by drawing a conceptual analogy between birthright citizenship and inherited property. This perspective creates a space in which to explore membership entitlement in the broader context of today’s urgent debates about global justice and the distribution of opportunity.

For those granted a head start simply because they were born into a flourishing political community, it may be difficult to appreciate the extent to which others are disadvantaged due to the lottery of birthright. But the global statistics are revealing. Children born in the poorest nations are five times more likely to die before the age of five. Those who survive their early years will, in all likelihood, lack access to basic subsistence services such as clean water and shelter, and are ten times more likely to be malnourished than children in wealthier countries. Many will not enjoy access to even basic education, and those out of school are more likely to be girls than boys. The odds that they will either witness, or themselves suffer, human rights abuses are also significantly increased. What is more, these disparities that attach to birthright citizenship are not a matter of individual desert or fault; rather, they represent systemic and structural patterns. In such a world, citizenship laws assigning political membership by birthright play a crucial role in the distribution of basic social conditions and life opportunities on a global scale.

My intention is not to belabor the familiar argument that such extreme inequality of actual life chances is morally and ethically troubling. Rather, the point here is more subtle: by focusing on the often neglected angle of membership transfer, I wish to call attention to the crucial role played by existing legal regimes for allocating entitlement to political membership (according to birthright) in restricting access to well off polities and sustaining the privilege of inherited entitlement. I further wish to destabilize the notion that such reliance is “natural” and, in this sense, apolitical. This latter notion serves to legitimize (and make invisible) the significant intergenerational transfers of wealth and power, as well as security and opportunity, which are currently maintained under the seal of the birthright regime of membership allocation. By highlighting the analogy to inherited property regimes, it becomes possible to call attention to the manifold ways in which reliance on birth in the assignment of citizenship regularizes, naturalizes, and legitimizes distinctions not only between jurisdictions, but also between vastly unequal bequests. Framed in this way, we can begin to acknowledge the massive estate-preserving implications of inherited citizenship regimes as they exist today. Drawing upon the rich body of democratic theory and property jurisprudence, this book sets out to expose—and challenge—the moral problem of unburdened intergenerational transmission of citizenship.

“Does the Constitution Follow the Flag?”

“Never during my three years as a law student or two years as a law clerk at federal courts did I hear of the ‘Insular Cases.’ Yet the series of US Supreme Court decisions gathered under this name established a doctrine, in force to this day, determining that the US Constitution does not apply fully to territories acquired through conquest after the Spanish-American War and the signing of the Treaty of Paris in 1898.” So writes Harvard Law School Dean Martha Minow in her Preface to Reconsidering the Insular Cases: The Past and Future of the American Empire, the latest publication from Harvard Law School’s Human Rights Program. The volume grew out of a February 2014 conference at Harvard that was organized to interrogate this century-old series of Supreme Court decisions that, judging by Minow’s experience, aren’t often given the attention they deserve. As Juan R. Torruella, Puerto Rico-born Judge of the US Court of Appeals for the First Circuit expressed in his conference keynote—included in the printed volume—“the Insular Cases represent classic Plessy v. Ferguson legal doctrine and thought that should be eradicated from present-day constitutional reasoning.”

In his Introduction to the book, excerpted below, Harvard Law School professor Gerald L. Neuman further elaborates on the need to continually question a doctrine that raises crucial issues of both constitutional law and human rights.

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The US Supreme Court’s decisions in the Insular Cases of 1901 provided the legal framework for the governance of a colonial empire in the Atlantic and the Pacific, loosening the constraints of constitutional principle in order to facilitate rule over the subjected areas and their inhabitants. In the wake of the Spanish-American War and the transfer of several of Spain’s imperial possessions, the metaphorically expressed question “Does the Constitution follow the flag?” became newly urgent. The Supreme Court majority gave a new answer: not entirely.

The most important of the 1901 decisions was Downes v. Bidwell, in which the court divided five to four in favor of congressional power to discriminate between the mainland and the new territories in customs matters. In retrospect, the crucial opinion was the concurrence of Justice Edward Douglass White. He accepted that the US Constitution governed the actions of the United States at any location, but he contended that it was still necessary to determine the appropriate geographical scope of each constitutional provision. The applicability of a constitutional limitation to a particular territory would depend on the situation of the territory and its relations to the United States. If the United States acquired a new territory and did not admit it as a state, then Congress could choose whether to “incorporate” the territory into the United States as an integral part or to treat it merely as a territory appurtenant to the United States. White thereby adopted a distinction that had been suggested by the political scientist Abbott Lawrence Lowell in an article in the Harvard Law Review, although White added some elements of his own in elaborating the consequences. For incorporated territories, the Bill of Rights and other constitutional limitations would apply in the usual way. For unincorporated territories, only “fundamental” restrictions on government power would apply. Moreover, an unincorporated territory could be kept in subordination indefinitely, without the prospect of future statehood. The United States had to have the same power to acquire and govern overseas territories and populations as the European colonial powers were exercising under international law.

Barack Obama, Jimmy Carter, and Human Rights

In Reclaiming American Virtue: The Human Rights Revolution of the 1970s, historian Barbara Keys joins the likes of Samuel Moyn in critical examination of the late-20th century rise and deployment of a concept often thought timeless. For Keys, human rights became a way to “redefine America to Americans,” to help heal the country in the aftermath of Vietnam, when so many old certainties and beliefs about America’s place in the world had crumbled. Below, as the U.S. again finds itself trying desperately to move on from a long and ineffectual period of war, Keys considers the ongoing evolution of American concern for human rights around the world.

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President Obama is diffident about international human rights. In his six years in office, Obama has zigzagged around the concept, generally treating it like an embarrassing relative who can’t be disowned outright but should be avoided when possible. His September 24 speech to the United Nations is the latest sign of discomfort with the vision that Jimmy Carter enshrined as a core element of U.S. foreign policy: that America should work to protect and enhance human rights around the world. Speaking before the General Assembly, Obama reaffirmed America’s global leadership and ticked off the usual pantheon of ideals: democracy, freedom, openness, respect for difference, and international cooperation. But instead of describing these values as inextricably linked to human rights, he seemed to suggest that human rights was a UN program, distancing the United States from ideas Americans once claimed as their own.

Compare Obama’s timidity with Jimmy Carter’s address to the UN General Assembly in March 1977, less than two months after the new president took office. Carter, too, spoke of “freedom, self-government, dignity, mutual toleration, and the peaceful resolution of disputes.” For him, the promotion of human rights was central to meeting these ideals. “The basic thrust of human affairs,” he told the assembled delegates, “points toward a more universal demand for fundamental human rights. The United States has a historical birthright to be associated with this process.”

As I show in Reclaiming American Virtue, the difference between Carter and Obama over human rights has much to do with the legacy of the Vietnam War. Carter embedded human rights promotion in U.S. foreign policy to help Americans get over the trauma of the Vietnam War. For Obama, the dynamics the war set in motion no longer apply.

Americans turned to international human rights promotion in the mid-1970s, I argue, because they sought to rebuild their tattered reputation in the wake of a brutal and unsuccessful war. After the disheartening amorality of the Nixon-Ford years, Americans hoped that the moral language of human rights would heal the country’s psychological wounds. Human rights promotion, after all, focused attention not on American misdeeds but on the brutal acts of far-off dictators.

Human rights promotion emerged from an internecine battle within the Democratic Party. In 1972 antiwar presidential candidate George McGovern told Americans they should feel guilty—they, and not just the country’s leaders, were responsible for the war’s horrific toll. After his disastrous loss, both the conservative wing of the Democratic Party, which began to split off in outrage over what it perceived as McGovern’s extremism, and the liberal wing, which sympathized with McGovern’s antiwar stance but saw that guilt did not sell, began to see human rights as a kind of panacea. To stand for international human rights positioned the United States once again as a benevolent force in world affairs.

The rise of human rights in the 1970s helps explain the reasons for Obama’s unease with human rights. He is the first president who is not a product of the Vietnam War era, and so is largely immune to the psychological dynamics that made human rights appealing. Because the logic of human rights promotion in the 1970s worked to hinder a true reckoning with the costs of American intervention abroad, it made future intervention more palatable rather than less. The groundwork was laid for the next logical step: war in the name of human rights. The names of the conservative Democrats who raised the banner of human rights in the 1970s—Richard Perle and Douglas Feith among them—would become familiar to Americans as the neoconservatives who wed ideals to the use of force and thereby justified the invasion of Iraq in 2003.

But the war went awry. We can expect continuing recriminations over where responsibility for the current disaster lies, but human rights gains for Iraqis are little in evidence today. So Obama confronts a world in which using American power to enhance human rights seems deeply problematic. But he has failed to find an alternative moral standard. His successor will face a choice: a return to human rights—or a new idealism?

Human Rights in Patient Care

Health and Human Rights—an open access online journal of which we assumed publication this year—posted a new issue this week at www.hhrjournal.org/

In addition to a selection of general papers addressing a range of global health concerns from a right to health perspective, the issue includes a themed section on Human Rights in Patient Care, co-edited by the Open Society Foundations. Below, we’ve posted the full text of the issue’s Introduction, written by guest editor Tamar Ezer, the Senior Program Officer at the Law and Health Initiative of the Public Health Program at the Open Society Foundations. We join HHR in encouraging readers to share and discuss this new issue and its important articles, and in welcoming new submissions and involvement with the journal’s blog.

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William, a paralegal living with HIV in Gayaza, Uganda, talks with a woman whose in-laws have threatened to take her property because she has HIV.
photo by Sven Torfinn

A man with mental disabilities is locked up in a mental health facility, forcibly medicated, and held in unhygienic conditions.

Hospital staff publicly disclose a patient’s HIV status.

A drug user is denied anesthesia during a medical operation.

The doctor at a health care facility refuses to treat a sex worker, throwing her out with a gaping wound.

Women living with HIV, Roma women, women with disabilities, and transgender persons are sterilized without their consent.

Unfortunately, these abuses of patients are not uncommon. At the same time, health care providers may also face rights violations themselves, such as unsafe working conditions or government sanctions for providing evidence-based care.

This issue of Health and Human Rights has a themed section on these concerns. The articles explore various facets of “human rights in patient care,” or the application of human rights principles to the context of patient care. The first piece, which Jonathan Cohen and I co-authored, lays out the human rights in patient care framework. It provides a typology of critical human rights applicable to patients and providers and differentiates the concept of human rights in patient care from other paradigms commonly applied to health care settings, such as the right to health (which overlaps with human rights in patient care in certain ways), patients’ rights, patient safety, and bioethics.

When Slow Violence Sprints

In Slow Violence and the Environmentalism of the Poor, Rob Nixon joins eco-criticism and postcolonial studies to call our attention to forms of violence visited on the world’s most vulnerable populations at paces too slow to overcome the willful blindness of those benefiting from the runaway capitalism that’s most often at fault. The very environment is the medium for the infliction of much slow violence—climate change, toxic drift, deforestation, oil spills—and, as Nixon shows, its victims are pioneering new forms of environmental justice work in their resistance. We’ve seen some such activism in response to the destruction wrought by Typhoon Haiyan, so we invited Nixon to help us understand these moments when slow violence suddenly sprints.

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Q: In Slow Violence and the Environmentalism of the Poor, you call for greater awareness of “violence that occurs gradually and out of sight,” so delayed and dispersed that it is usually not viewed as violence at all. Can you explain why climate change is so central to your conception of slow violence?

Climate change involves outsourcing violence on such a vast scale—temporal outsourcing and geographical outsourcing. It’s the ultimate form of incremental violence as it is shredding our planet’s life-sustaining envelope. Climate change can be mitigated only through a commitment—an ethical, political and imaginative commitment—to safeguarding people and other life forms that are remote from us in time and space. Such a commitment requires that we deeply value life thirty, fifty, one hundred, one thousand years from now. Countering slow violence requires reimagining responsibility over longer time frames.

As a sequel to Slow Violence, I have begun work on a book on the Anthropocene which raises the stakes of the planetary impacts of human actions, including but not restricted to climate change. The premise of the Anthropocene is by now familiar: that for the first time in Earth’s history a sentient species, Homo sapiens, has had a geomorphic impact. What does it mean to reimagine humanity as not merely a historical agent but a force powerful enough to transform the Earth’s very strata? How might asking that question reframe our understanding of human agency and human responsibility not only towards our own species, but toward the whole planet? If the advent of the Anthropocene involves layered forms of slow violence, climate change is a critical indicator of our alarming, often reckless morphological powers.

Does Malala Need Saving?

Earlier this month, New Atheist Sam Harris took to his blog to uphold the courageous Malala Yousafzai as both ally and object of his quest to save Muslims from Islam. Harris attempts to make of the internationally celebrated Pakistani activist an Islam-escapee in the mold of Ayaan Hirsi Ali, offering Malala’s work as the sort of truth-telling that “Islam’s apologists” must heed:

Malala is the best thing to come out of the Muslim world in a thousand years. She is an extraordinarily brave and eloquent girl who is doing what millions of Muslim men and women are too terrified to do—stand up to the misogyny of traditional Islam.

And yet, as Murtaza Hussain points out at Salon, Harris can’t possibly have respected Malala enough even to understand her own feelings on her culture and religion. Where Harris assumes Malala strives to be rescued from “traditional Islam,” Malala herself seems far more intent on rescuing Islam from groups like the Taliban, those whom Harris depicts as Islam’s most devout and representative.

Here’s Hussain:

Given her own words, Malala is ostensibly among the “Islam apologists” he is targeting; but this doesn’t come into play in Harris’ myopic worldview. Although Malala may claim to be a devout Muslim acting in accordance with Islam, this is merely an inconvenient detail that can be safely ignored… When you don’t even feel you have to listen to the voices of the people whose cause you’re championing, it’s a reasonable indication of the fact that this has less to do with them than with you.

Harris serves here as a particularly blatant example of a kind of crusading for Muslim women’s rights that anthropologist Lila Abu-Lughod says became commonplace after 9/11. While Harris is fairly transparently using a young woman as a tool in his own ongoing war against Islam, the impulse noted by Abu-Lughod is just as likely to manifest as well-meaning—if ill-informed—concern expressed by ordinary Westerners for the status of women in the Arab world. For Abu-Lughod, author of Do Muslim Women Need Saving?, it’s critical that we ask where that impulse comes from, and what work it’s doing in the world:

This book seeks answers to the questions that presented themselves to me with such force after September 11, 2001, when popular concern about Muslim women’s rights took off. I worry about the ways that representations of Muslim women’s suffering and arguments about their lack of rights have been working politically and practically. I follow the concept of “Muslim women’s rights” as it travels through debates and documents, organizes women’s organizations and activism, and mediates lives in refugee camps and the halls of the United Nations. I try to uncover what this framework that describes distant women’s lives only in terms of rights, present or absent, hides from us about both everyday violence and forms of love. I ask what evaluating lives in terms of rights does for (and against) different kinds of women. Along the way, I uncover how key symbols of Muslim women’s cultural alienness—from the veil to the honor crime—are deployed in twenty-first-century political projects, and why these symbols grip us.

Abu-Lughod traces these representations and arguments as they appear in venues as disparate as UN reports, New York Times opinion columns, book-length philosophical inquiries, and a genre of “pulp nonfiction” that seems to flourish in airport bookstores. Her argument is not that Muslim women are in fact carefree, but that their lives are as diverse and complicated as all lives are, and that when we make facile and unfounded judgments about culture’s role in those complications we forestall consideration of any actually effective strategies for playing an appropriate role in their alleviation.

Here’s more from Abu-Lughod:

 

Health and Human Rights: Call for Submissions

With the submission window for its June 2014 Climate Justice issue recently closed, Health and Human Rights, the peer-reviewed open access journal of which we assumed publication this year, seeks papers for its December 2014 special issue on Health Rights Litigation. The journal, edited by Partners in Health co-founder Paul Farmer, intends the issue to disseminate findings related to the Health Rights Litigation course sponsored by the Global School on the Enforcement of Economic, Social and Cultural Rights (the Global School):

For this special issue, Health and Human Rights welcomes articles that explore issues related to health rights litigation. We are particularly interested in receiving articles from Global School Health Rights Litigation course participants that examine health rights litigation in view of the various topics explored in the course, including reproductive and sexual health; health rights issues arising in health care settings, abuses in institutional settings, palliative care; access to medicines and approaches to health care rationing; structuring remedies to facilitate democratic deliberation and broad participation; strategies with respect to implementation of collective and structural judgments; and factors to consider in assessing the equity impacts of judgments, which include but go beyond income, gender and marginalized status and have left people with inadequate information to promote their own health rights, and undermined their power and means to manage risks to their health; and have left unchallenged gross inequities in the distribution of resources for health, including a lack of attention to vulnerable groups.

While issues of the journal frequently focus on special topics, each also includes a section of general health and human rights papers, some of which become available prior to issue publication, expediting access to new research. Authors may submit such work at any time; the journal’s general call for papers is as follows:

Original articles (research, commentary, and analysis) suitable for scholarly peer review are invited (3,500–7,000 words). In addition to research papers, we seek manuscripts that emerge from and reflect on practical efforts for the realization of social and economic rights (up to 7,000 words). The form and style of these pieces is flexible, but they should be of genuine relevance to people engaged in related work. Like all other submissions, papers for this section will be peer reviewed.

Health and Human Rights welcomes articles that explore the centrality of the right to health in all social, economic, cultural, and environmental contexts. We are interested particularly in the themes of (1) climate change and the right to health; (2) health rights and effectiveness of international treaty law; (3) interdisciplinary explorations of health and human rights; (4) rights-informed innovations in health program design; (5) health and human rights as “well-being.” Topics might include (but are not limited to): women’s health, maternal mortality, refugees and other vulnerable populations, asylum, children and adolescents at risk, current conflicts in civil disturbances, environmental concerns, global health delivery, sustainable development goals/post 2015 development agenda, community mobilization, and new developments in human rights that relate to health and international law.

The editors also invite short letters, brief research or fieldwork summaries, and short opinion or perspective essays (up to 2,500 words) for publication as “Letters to the Editor.”

This December’s issue, a collaboration with the Open Society Foundation’s Law and Health Initiative, will focus on human rights in patient care.