[Taken from the doctoral thesis of Eduardo Arenas Catalan entitled ‘Solidarity and the RTH in the Era of Healthcare Commercialization’, 2018]

Recapping

As of now, many RTH activists place too high expectations on the work of the judiciary to set many of the wrongs right.

14. Since the prevailing interpretation of the RTH is that it is justiciable in court, the need now is to interpret the RTH using the principle of solidarity. This, since solidarity entails a different way of informing the duties that correlate with this HR. The main current shortcoming is that conceiving the RTH as a legal right impedes deploying appropriate mechanisms to address the structural nature of the problems social rights are supposed to combat. This is not to say that judicial remedies do not have any role to play, for example in addressing discrimination…

15. Non-discrimination means placing the attention not on the organizational aspects of the provision of healthcare, but on the fact that --whatever mix of public-private services there is-- their provision must be delivered without discrimination. In the case of the RTH, it is connecting with the social roots of all social rights that, at the end, will guarantee equal access and equality of results in healthcare for all. Yes, non-discrimination has done a great deal for HR, but it cannot possibly be expected to structurally shift the market so that everyone gets the same. Asking non-discrimination to correct the market fails to appreciate that the principles of distribution according to which the market operates are not accountable from the point of view of distributive justice.

16. The principle of distributive justice, that the RTH prominently upholds, unambiguously points to the collective nature of the remedies needed to address the RTH’s social nature. But, as applied, the RTH shows us the limited extent to which current duty bearers protect this social right (as opposed to the various instruments protecting civil and political rights!).

17. Since access to healthcare is a public good, the RTH must put the state under the obligation to exclude the commercialization of healthcare so that access can be truly universalized.

18. Insufficient attention is going to the rules regulating access, financing and the provision of healthcare, as well as to the institutions in charge of carrying out the services. An area of priority action here.

The intrinsically unequal distribution logic of market principles is the most formidable source of health inequalities

As the RTH is regarded as not compatible with the market, the current interpretation of the RTH can do little to correct things embedded in this trend.

19. Under the market logic, it is hard for the RTH to reconnect with its social justice roots as intended in the Alma Ata Declaration in which the social justice focus was and remains predominant.  Ponder: Without explicitly tackling the menaces that social rights were born to eradicate, the prospects of the RTH are not bright. The inability of the many to purchase healthcare services in the market then becomes the very indicator determining when HR are urgently called to intervene.

A major way for solidarity to protect the RTH is decommodifying it

20. The thesis here, again, is that the history of social rights is more closely linked to solidarity and decommodification than to the justiciability of legal rights.

21. Every member of the community has duties to one another --solidarity being inherently a community notion. Solidarity’s most import contribution is to inform the principles of distributional justice that apply to social rights. Solidarity strives to gradually replace the principles that lead to an inequitable distribution of the goods and services. It ensures universal access.

22. It is the HR obligation to protect that primarily discourages and ultimately prohibits the market provision of health services. Access to healthcare must not depend on the position of vulnerability of specific individuals. Addressing vulnerability is certainly one of the main focuses of solidarity, but it does not fully cover it. Furthermore, note that solidarity must in no uncertain terms be confused with charity --the latter being a misconceived form of moral obligation.

23. Beware though: The state is certainly obliged to realize the RTH in favor of its citizens, but also in favor of every person in the globe in a situation of medical need. Consequently, regarding non-citizens within the state’s jurisdiction, the state must realize the RTH without discrimination. Using the solidarity approach to HR, as said, the RTH is not conceived as an individual legal right. This approach further provides direction when it comes to the collective remedies needed.

The state thus only discharges its RTH obligation if/by instituting a free-of-cost national healthcare system accessible to all persons in the state’s jurisdiction

24. States that have signed the Economic, Social and Cultural Rights Covenant interpret the legal obligations derived from this treaty in a way that is not necessarily in line with the needed interpretation of the RTH.

25. They use an individualistic perspective of the RTH--one so prone to protect the ‘deserving poor’… Why? Because it fits well with the systems that are mainly built around market principles and where the action of the state is a subsidizer-for-those-unable-to-purchase-social-rights in a market context. This, despite all available distributional justice and sound public health evidence.

The search for profit simply threatens the goal of equal access to healthcare for all; period

26. Only the future will teach us whether the HR project is in fact as fundamental as we activists, its most conspicuous advocates, constantly proclaim. Either the RTH will triumph by mastering over our political economy or will submit to market imperatives. If the latter, it will become less relevant as a narrative of empowerment and emancipation. (Eduardo Arenas Catalan, Solidarity and the RTH in the Era of Healthcare Commercialization. 2018)

Claudio Schuftan, Ho Chi Minh City

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