Goodman's critique raises the issue of compliance and enforcement in international law. It is important to understand that the post-WWII framework of international human rights law is understood to be one of declaratory tradition in contrast, for example, to the earlier, more metaphysical framework according to which “the law of nations” has its origin in and is deduced from natural law. No one has expounded better on the declaratory tradition than Dorothy V. Jones, and so I summarize in brief her exposition of this legal framework. As a point of interjection that links directly to Jones' interpretation, I note a distinction made by Joel Rosenthal. Rosenthal has spoken to the question of standards and distinguishes between “perfectionism” and “non-perfectionism.”[₁₀] Perfectionism thinks of “theories of morality based on ideal situations and ideal types;” in contrast, a non-perfectionist theorist works to “build an argument for ethics from the ground up, in a problem-solving mode, searching for principles and standards that can help guide decision-making and action.” The declaratory tradition, then, is non-perfectionist but progressivist with respect to moral and legal aspirations that national governments seek to realize in their international and transnational relations. As Terry Nardin reminds, “conceptual languages change through time,” so that ethical judgments relative to international affairs reflect a process of evolution of “assumptions,” “vocabularies,” and the “structure [of] debate.”[₁₁] Thus, the contemporary declaratory tradition focuses on the actual behavior of states, be this “in the form of express treaties and pacts, or merely modes of interaction habitually practiced and accepted.”[₁₂]

Jones examines this tradition and characterizes it as a “sustained effort” on the part of national governments that “has created a body of reflections and rules that is closer to moral philosophy than it is to positive law.”[₁] The principles at the core of this tradition “summarize years of thought about the proper relations between sovereign entities…as formalized by jurists and philosophers.” Moreover, the “formulation of the tradition has resulted from the efforts and interactions of states of different political systems, ideological commitments, cultural heritages, and levels of economic development.”[₁] Thus, to the extent such principles are declared to be universal, it is claimed, international law so conceived “is and can be universal because the conditions that formed and shaped it have become or are becoming universal.”[₁] And, the conceptual frame is such that it looks “to the future” and towards the realization of a common good, the latter conceived essentially as “respect for human rights and fundamental freedoms.”

Jones acknowledges, consistent with Goodman's objection to a right to health or a right to health care, that the declaratory tradition “is not effectively binding on the states, despite their frequent attempts to give it obligatory force by saying that the fundamental principles that underlie the tradition are principles of law” even as “the appeal is almost always to conscience, not to courts.”[₁] Nonetheless, the fact is that there are now established legal institutions, like the International Court of Justice and the International Criminal Court (not to mention the European Court of Human Rights), that are recognized authorities “for interpretation and judgment” even as there is growing “institutionalized review of compliance.” In this sense, then, effectiveness is a matter of progressive performance as state-parties to various treaties, conventions, and declarations submit themselves to processes of adjudication. Let us consider one of the central features of this commitment to institutionalized review for compliance, manifest in various formal instruments in the concept of “non-derogable rights.”

Those who are proponents of a right to health are surely concerned to secure what is claimed by that right; thus, they are presumably concerned to address what are presented as at least morally, if not legally, defensible appeals that have the character of grievance lodged by some party whose right is denied or otherwise limited. “Rarely, however,” writes the Norwegian philosopher Reidar Lie, “are we provided with any details about exactly how one should understand particular violations of human rights or exactly how one arrives at recommending a particular action to rectify the alleged violation of a human right”—and this holds especially in the case of a claim of a right to health,[₁₃] as we have seen that claim articulated by Goodman. That is one reason Goodman prefers to speak of a right to health care rather than a right to health per se. But, clearly, here we have an interpretation of the declared right, even as someone like Lie construes a right to health in terms of “mobilizing resources” for health, any claim to such a right being really meaningful only if it in fact mobilizes such resources.

Let us consider first of all what kind of right we may reasonably intend when speaking of a right to health as understood in the framework of international human rights law. Consider the concept of a non-derogable right, sometimes (but incorrectly) identified with what are called preemptory norms of international law or jus cogens norms.[₁₄,₁₅] Lee Caplan clarifies: “Under the normative hierarchy theory, a state's jurisdictional immunity is abrogated when the state violates human rights protections that are considered peremptory international law norms, known as jus cogens. The theory postulates that because state immunity is not jus cogens, it ranks lower in the hierarchy of international law norms, and therefore can be overcome when a jus cogen norm is at stake.”[₁₄] The International Covenant on Civil and Political Rights (ICCPR) and the International Covenant on Economic, Social, and Cultural Rights (ICESCR) stipulate a number of non-derogable rights. The UN Human Rights Committee, in its comments interpreting Article 4 of the ICCPR, remarks that,

The enumeration of non-derogable provisions in article 4 is related to, but not identical with, the question whether certain human rights obligations bear the nature of peremptory norms of international law. The proclamation of certain provisions of the Covenant as being of a non-derogable nature, in article 4, paragraph 2, is to be seen partly as recognition of the peremptory nature of some fundamental rights ensured in treaty form in the Covenant (e.g., articles 6 and 7). However, it is apparent that some other provisions of the Covenant were included in the list of non-derogable provisions because it can never become necessary to derogate from these rights during a state of emergency (e.g., articles 11 and 18). Furthermore, the category of peremptory norms extends beyond the list of non-derogable provisions as given in article 4, paragraph 2. States parties may in no circumstances invoke article 4 of the Covenant as justification for acting in violation of humanitarian law or peremptory norms of international law…[₁₃]

Article 4.2 of ICCPR, e.g., specifies: “no derogation” of a human being's inherent right to life; the right not to be subjected to torture or to cruel, inhuman, or degrading treatment or punishment; the right not to be held in slavery or servitude; the right not be imprisoned merely on the ground of inability to fulfill a contractual obligation; the right not to be held guilty of any criminal offence on account of any act or omission which did not constitute a criminal offence, under national or international law, at the time when the particular act was committed; the right to recognition everywhere as a person before the law; and the right to freedom of thought, conscience, and religion. To say that these rights are non-derogable is to say that no state of public emergency (e.g., armed conflict or declared war, natural catastrophe, etc.) “that threatens the life of the nation and the existence of which is officially proclaimed,” provides sufficient reason to deny these rights to persons.[₁₄,₁₆]

What we notice here immediately is that a right to health is not enumerated among the list of non-derogable rights. Are we therefore to assert that a right to health is not to be construed as a non-derogable right as a matter of international human rights law? The fact is that whatever measures a State takes unilaterally to derogate from rights stipulated in the ICCPR “must be of an exceptional and temporary nature”[₁₄] so that rights are preserved to the maximal extent expected by international human rights law even as international humanitarian law becomes applicable in such situations of national emergency. Indeed, the UN Human Rights Committee charged with clarification of the Covenant has stated as recently as 2001, “The fact that some of the provisions of the Covenant have been listed in article 4 (paragraph 2), as not being subject to derogation does not mean that other articles in the covenant may be subjected to derogations at will, even where a threat to the life of the nation exists.”[₁₄] Further, “In those provisions of the Covenant that are not listed in article 4, paragraph 2, there are elements that in the Committee's opinion cannot be made subject to lawful derogation under article 4.”[₁₄] That said, the UN Human Rights Committee also clarifies that, “Conceptually, the qualification of a Covenant provision as a non-derogable one does not mean that no limitations or restrictions would ever be justified.”[₁₄]

Thus, one may propose that a right to health counts as a “fundamental” human right even if it is not enumerated as a non-derogable right, in which case one claiming a right to health may appeal to Article 5.2 of the ICCPR and Article 5.2 of the ICESCR, according to which no State may derogate from or restrict a fundamental human right “on the pretext that the present Covenant does not recognize such rights or that it recognizes them to a lesser extent.” Recall that among the non-derogable rights recognized in the ICCPR is the right to freedom of thought, conscience, and religion. Yet, under Article 18.3, a State may unilaterally limit this freedom as a matter of law and as may be “necessary to protect public safety, order, health, or morals or the fundamental rights and freedoms of others.” Any limitation, however, “shall be interpreted in the light and the context of the particular right concerned.”[₁₆] Section II.D.60 of the Siracusa Principles provides for juridical review and enforcement: “The ordinary courts shall maintain their jurisdiction, even in a time of public emergency, to adjudicate any complaint that a non-derogable right has been violated.” In short, as emphasized in II.E.61, “Derogation from rights recognized under international law in order to respond to a threat to the life of the nation is not exercised in a legal vacuum. It is authorized by law and as such it is subject to several legal principles of general application.” Thus, a government's responsibility to protect the public's health is such that the national interest in health may superintend that government's obligation to secure a “non-derogable” individual right such as the right to freedom of thought, conscience, and religion. Stated more specifically, “Public health may be invoked as a ground for limiting certain rights in order to allow a state to take measures dealing with a serious threat to the health of the population or individual members of the population. These measures must be specifically aimed at preventing disease or injury or providing care for the sick and injured.”[₆,₁₆] Gostin and Mann qualify this point, however: “The human rights impact assessment suggests a balance between the burdens and public health benefits of a policy. In general, broad or intrusive human rights violations are seldom, if ever, warranted. At the extreme, a public health approach that uses an effective means to achieve a compelling public health objective may sometimes warrant a limitation of human rights.”[₆] Accordingly, Gostin and Mann propose adherence to what they call “the principle of the least restrictive alternative,” i.e., seeking “the policy that is least intrusive while achieving the public health objective as well or better than the policy under consideration.” The authors maintain: “The human rights community should insist that governments find alternatives that achieve the public health goal without unduly violating rights and dignity.”

Note that here public health is construed as the proper concern of government not only for the collective public but also out of concern for individual members of the population. Because there is a state of emergency the State undertakes specific measures to meet that emergency even as a limitation of other non-derogable rights is permitted for the time of the declared emergency. The argument is one of “strict necessity”[₁₆] due to the extraordinary features of the state of emergency. II.C.53 & 54 of the Siracusa Principles elaborate: “A measure is not strictly required by the exigencies of the situation where ordinary measures permissible under the specific limitations clauses of the Covenant would be adequate to deal with the threat to the life of the nation.” Further, “The principle of strict necessity shall be applied in an objective manner. Each measure shall be directed to an actual, clear, present, or imminent danger and may not be imposed merely because of an apprehension of potential danger.” If the limitation occurs out of concern for public health, the government acts to prevent disease or injury or to provide care for the sick and injured among the public at large surely, but also to respond to prevent disease or injury or provide care for individual members of the national community. This suggests that government action is grounded in recognition of both a collective right (thus, the “public” health) as well as individual right (thus, individual health). On this line of reasoning, then, such action on the part of government entails recognition of a right to health per se, not merely a right to health care as Goodman would have it. Indeed, as the UN Committee on Economic, Social and Cultural Rights clarified explicitly in their “General Comment” of May 2000, Article 12.1 of the ICESCR “is not confined to the right to health care [my italics]. On the contrary, the drafting history and the express wording of article 12.2 acknowledge that the right to health embraces a wide range of socio-economic factors that promote conditions in which people can lead a healthy life, and extends to the underlying determinants of health, such as food and nutrition, housing, access to safe and potable water and adequate sanitation, safe and healthy working conditions, and a healthy environment.”[₁₄] The foregoing illustrate but do not exhaust the scope of States parties' obligations under the ICESCR. Indeed, given what it calls “the core obligations” of a State party to article 12 of ICESCR, it is clear the Committee construes the right to health as “non-derogable” at least with reference to the stipulated core (paragraph 47).

The UN Commission on Human Rights recognizes a right to health, establishing a mandate of the Special Rapporteur “on the right of everyone to enjoyment of the highest attainable standard of physical and mental health.” In his annual report issued recently (03 March 2006), Special Rapporteur Paul Hunt speaks of a right to health as “a right to an effective and integrated health system, encompassing health care and the underlying determinants of health, which is responsive to national and local priorities, and accessible to all.”[₁₇] By ‘underlying determinants of health' we are to understand basics such as “adequate sanitation, safe drinking water and health education.” The concept of access covers “those living in poverty” as well as the wealthy; “minorities and indigenous peoples” as well as majority ethnic groups; “remote villagers” as well as those living in urban areas; “women” as well as men, “children” as well as adults. A system responsive to local priorities entails “inclusive, informed, and active community participation.” The Special Rapporteur understands the declared right to health as a “fundamental human right,” an integrated health system being “a core social institution” essential to the achievement of that right.[₁₇]

This right is understood in the context of the declaratory tradition of international human rights law with its emphasis on “progressive realization.”[₁₇] Consistent with this view, the Special Rapporteur has moved forward with a programmatic effort to identify “right to health indicators,” related to “appropriate national targets or benchmarks,” thereby to establish “effective, transparent and accessible monitoring and accountability mechanisms”[₁₇] that influence adjustments to health policy, even as it is understood that these indicators “will never give a complete picture of the enjoyment of the right to health in a specific jurisdiction.”

It is here that one can link again to Goodman's complaint about affirming a right to health insofar as the pursuit of such a right entails, in his judgment, “expropriation” of the resources of others. The Special Rapporteur makes it clear that, “International assistance and cooperation [are] an important element of the right to health. Donors have a responsibility to provide financial and other support for the policies and programmes,” especially for developing countries.[₁₇] I suggest that this responsibility derives, at least in part, from Article 56 of the UN Charter, which obligates Member-States to develop effective international cooperation for the realization of Article 55 which stipulates respect for human rights and fundamental freedoms. This responsibility derives also from the principle that, “All human rights are universal, indivisible, and interdependent and interrelated,” a principle asserted in Article 5 of the Vienna Declaration and Programme of Action at the 59th UN General Assembly in 1993 in response to the World Conference on Human Rights that convened in June of that year.[₁₈]

The UN Committee on Economic, Social and Cultural Rights has clarified what it takes to be “the normative content” of Article 12 insofar as it stipulates a right to health. It construes this normative content to include: (a) State parties' obligations; (b) violations subject to remedy; (c) implementation at the national level; and (d) obligations of actors other than State parties. Consistent with Goodman's observation, the Committee acknowledges (General Comment, paragraph 9) that “good health cannot be ensured by a State, nor can States provide protection against every possible cause of human ill health.” Likewise, the Committee recognizes there is “individual susceptibility to ill health” relative to genetic and environmental determinants, including individual lifestyles. These facts, however, do not diminish the reality of other determinants that must be engaged, e.g., “resource distribution and gender differences,” “violence and armed conflict,” population growth, etc. In short, what amounts to a universal, fundamental right will have its diverse, i.e., particular, application or implementation, relative to what the Committee calls “the conditions prevailing in a particular State party” (paragraph 12)—that is, availability of resources relative to level of socioeconomic development, accessibility without discrimination, acceptability relative to standards of medical ethics and cultural rights, and quality.

Here, again, the emphasis is on a progressive realization of the right to health, “a margin of discretion” (paragraph 53) allotted to State parties, no perfectionist approach implied. This is not to deny there are important issues of “indeterminacy and justiciability,” as George Smith argued recently: “Prevailing authority holds that violations of both social and cultural rights generally, and violations of the right to health in particular, are not justiciable and thus unsuitable as bases for judicial review because of their very indeterminacy.”[₁₉,₂₀] Nonetheless, in addressing State-parties's obligation under Article 12, the Committee asserts (paragraph 31): “The progressive realization of the right to health over a period of time should not be interpreted as depriving States parties' obligations of all meaningful content. Rather, progressive realization means that States parties have a specific and continuing obligation to move as expeditiously and effectively as possible towards the full realization of article 12.” The obligation, in short, is such that it proceeds logically and sequentially in this order (paragraph 33): (1) respect for the right to health; (2) protection of that right; and (3) fulfillment of the right. Accountability for violation of this obligation turns on the manifest “unwillingness”—rather than on the “inability”—of a State party (paragraph 47) to take the requisite action in policies and programs. Thus, the standard for compliance is explicit: “A State which is unwilling to use the maximum of its available resources for the realization of the right to health is in violation of its obligations under article 12.”

Goodman's position is tenable if and only if one is committed to free market conservatism as outlined above in section II. However, this commitment by no means compels one's assent. In fact, Goodman's position fails to be compelling when one accounts for free market conservatism's distinction of private and public goods as well as the problems of private sector health service delivery in developing countries in particular. Consider once again some comments offered by Peter Wenz in his discussion of public goods in relation to government regulation.

The fact is that any concept of economic practice, including that of free market conservatism, has to account for “the dilemma of selfishness” despite assumptions about the rationality of decision on the part of producing and consuming agents: “In some contexts, selfish attempts to maximize individual returns leave everyone worse off than cooperative behavior does. This reality contradicts Adam Smith's theory of the invisible hand.”[₉] Indeed, “In many situations, no invisible hand converts selfish behavior into general benefit.”[₉] These empirical facts point to the importance of realizing the distinct value of public goods in contrast to—though not to the exclusion of—private goods.

Wenz describes a public good as “something good that no one can benefit from unless many others benefit as well,” as a good that “cannot be privatized” in the sense that private property may “exclude others.” The fact is that the dilemma of selfishness is operative in the health sector as well, precisely as consequence of the permissive features of free market conservatism in its insistence on efficiency and affluence, and sometimes to the detriment of equally important concerns for the achievement of social justice. If, as Wenz puts it, “Selfish people have little incentive to provide or voluntarily contribute to public goods,” and it is indeed true that such voluntary contributions are often not forthcoming, then that which is the public good is depreciated in value and dangerously restricted under conditions that require the public good to be pursued and achieved.

Consider the idea of expecting voluntary contributions to that public good that one takes public health to be. We could certainly expect the market to be structured so that one depends on individuals and corporate entities voluntarily to contribute to public health by way of production and consumption of services and adjustment of individual lifestyle practices conducive to good physical and mental well-being. As Wenz asks in the context of that public good that one takes national defense to be, one could ask in parallel: Will the public health be defended and achieved by voluntary contributions alone? Given the multiple determinants of health, including the genetic, environmental, and personal lifestyle variables associated with the etiology of disease, patterns of disease affecting populations, and rates of morbidity (incidence and prevalence) and mortality as differentiated by age cohorts, the fact is that voluntary contributions alone will not provide the requisite financial and human resources or physical infrastructure for delivery of health services. Neither will voluntary contributions alone provide for fair, non-discriminatory access to and utilization of those resources. This is all the more so in the case of selfish behavior on the part of both producers and consumers of requisite health services. As Wenz observes, “If no one has a private incentive to provide for public goods”—including here public health—then “they will not be provided by private initiative, and so the government must step in to provide them.”[₉] It is no surprise, then, that WHO reported in 1991 a “lack of evidence to support a generalisable policy of promoting the contracting of clinical service provision to the private sector in developing countries,” consequent to “inequities in access,” “possible private sector inefficiencies relative to the public sector, and the complexities of developing and implementing national private health sector policies.”[₂₁,₂₂]

The point here is that regulation by the price mechanism is inadequate to the public health goals of prevention and remediation of disease. Even a free market conservative such as Friedrich Hayek understands and concedes the point when accounting for public goods—”in such instances we must find some substitute for the regulation by the price mechanism.”[₉,₂₃] Goodman's analysis ignores this basic fact, made clear in any number of instances of communicable disease processes (infectious and parasitic in particular) wherein prevention as well as remediation are public goods first and foremost. To illustrate the point: It is well known today that malaria is a parasitic disease imposing a “global burden,” with “75 percent of all deaths due to infectious diseases” occurring “in southeast Asia and sub-Saharan Africa.”[₂₄] This contrasts to 4 percent for the Americas and 2 percent for Europe. Citing World Health Organization data, the Global Health Council reports for 2001 infectious disease deaths as a proportion of all deaths as: 62% for Africa; 31% for Southeast Asia; 11% for the Western Pacific; 34% for the Eastern Mediterranean; 10% for the Americas; and 5% for Europe.[₂₃] WHO reports more than 300 million cases of malaria and over one million deaths from malaria annually.[₂₄] Jeffrey Sachs of The Earth Institute at Columbia University asserts with good reason that restored economic growth in Africa is unthinkable without control of malaria along with AIDS.[₂₅] “Without the control of these two diseases,” writes Sachs, “there is little prospect of attracting foreign investment, upgrading technology, building a tourist sector, and raising educational attainments, not to mention saving productive lives…Malaria has arguably been the greatest shackle on Africa's economic development throughout modern history.” In short, the main concern of free market conservatives—economic growth—is unattainable for much of Africa in the absence of significant government intervention accompanied by international donor assistance. Left to the free market price mechanism, individual voluntary efforts would not achieve the levels of prevention or remediation needed to reduce either morbidity or mortality due to the disease. The same reasoning applies in any number of infectious diseases.

Notwithstanding the foregoing commentary, the philosophical bases of political economy—including those associated with free market conservatism—are subject to examination and adjustment when those philosophical foundations are related to the demand for justice. One cannot merely assume, as many free market conservatives do, that the achievement of justice is a function of free market performance as measured by economic growth or affluence and efficiency in production and consumption of private goods. Consider the perspective offered by Richard Winfield in his engagement of the question of “the just economy.”

As Winfield's discussion makes clear, the fact is that “The economy is an integral domain of justice with its own rightful relations”—at least, this is part and parcel of the modernist perspective, free market conservatism being one such representative.[₂₆] Economic theory on one view may be “descriptive,” yet on another view the underlying rationality of a given economic theory entails a prescription of economic relations. This is certainly so for free market conservatism as is manifest in the position advanced by Goodman in the case of the health sector. Given a “liberal” conception of political economy, “society is civil to the degree it provides a community whose members are able to exercise free choice in disposing over property and pursuing personal interests.”[₂₆] That civility is diminished and democratic governance threatened, as Goodman claims, when free choice is supplanted by government regulation. By contrast, one committed to “contractarian autarchy,” such as Johann Gottlieb Fichte, holds that the social contract that establishes civil society “must also address the positive task of guaranteeing the assured livelihood of all prospective members of civil society, since otherwise, the insecurity of subsistence will put their liberty in jeopardy.”[₂₆] Thus, civil society for Fichte entails a self-sufficient economy with economic relations internal to the contractarian state ordered accordingly. Yet, Winfield points to a theoretical and practical question that has yet to be engaged by one not committing to these positions: “If the priority of freedom is to be the foundation for extending distributive justice beyond the requirements of rational agency to the requirements of a fair conventional standard of living, then the freedom in question must have a more determinate content than liberty of choice.”[₂₆] In the case of health sector policy, that means, inter alia, that the explicit (or implicit) prescription of economic relations—manifest in the production and delivery of health service goods and the consumption that follows from availability and access—is by no means a given such as free market conservatives (including Goodman) believe and advocate. Accordingly, a rightful place for governmental intervention relative to public goods may find its reasonable justification in an alternative theoretical conception.

Thus, Winfield writes, “market relations, either alone or supplemented by civil law, economic interest groups, and the private efforts of individuals and households, cannot realize the economic injustice consisting in unequal economic opportunity.”[₂₆] For a philosopher like Hegel, government has a right of public regulation that acts to “redeem the market”—ameliorating impediments introduced by the civil economy, “regulating” while not “outlawing” markets.[₂₆] Indeed, contrary to the free market conservative perceptions of public regulation, “economic right equally obliges public authority to…provide sufficient health care” as part and parcel of its obligation to “provide all with the assets allowing them to exercise their market freedom,” health care being one among a number of “prerequisites for exercising…economic autonomy.”[₂₆]