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consensus toward enabling access to aIDS medicines in africa and to have produced
corresponding changes amongst primary global health actors. these outcomes
discount the suggestion by andrew F. cooper, John J. Kirton, and ted Schrecker
(2007, 231) that the human rights claim for health 'has little appeal beyond the
human rights community'.
Yet broad-based effects from human rights claims are not unique to the aIDS
medicines experience. the normative shifts achieved in the past century with regard
to slavery, women's right to vote, colonialism, and apartheid have first and foremost
been a product of rights-based social movements. Human rights have been central
to these outcomes, providing important counterpoints to arguments based on utility,
commerce, or security that have sustained grossly unjust systems such as slavery or
apartheid. Indeed, there is an emerging broad recognition that social movements have
been critical actors in the production of many of the human rights norms and legal
protections now entrenched in international human rights law (rajagopal 2003a,
2003b; baxi 2002; Santos 2002; risse-Kappen 1995). thus rather than simply being
western gambits imposed on an unwilling global South, evidence suggests that
human rights oftentimes emerge from subaltern legal and political struggles
that hold a 'creationist' and 'jurisgenerative' potential (baxi 2002, 101; Siegel 2004).
this bottom-up process suggests strategic opportunities for advancing the normative
frameworks on which global health governance could rest.
this is not to overlook or downplay the practical and theoretical limitations of
international human rights law or the right to health. International human rights law
remains plagued by gross inefficacies and neglect, animated most grievously by
the persistence not only of genocide but of global failures to intervene in ongoing
slaughter in rwanda and Darfur. Moreover, the universality of international human
rights law is often disputed given its liberal roots and its apparent irrelevance in
various parts of the world such as china. Similarly, as colleen o'Manique (2007)
points out, claims of universality must also contend with considerable variations and
historical contingencies in domestic understandings of and responses to rights.
these arguments undeniably hold elements of truth. However, they cannot and
do not negate the strong evidence that illustrates the potential power of rights. to
some extent this power emerges from rights and law in general, which can be wielded
either as a regulating force to sustain the
status quo
or an emancipatory force for
social transformation (Santos 2002, 2-3). nonetheless, human rights, distinct from
rights and law of any nature, hold an explicitly transformative potential given their
focus on achieving equal worth and dignity for all people.
Moreover, while the genesis of international human rights law may have drawn
from a strongly liberal U.S. rights culture, its inclusion of social and economic rights
suggests that this body of law cannot be accurately characterised as exclusively liberal
in nature. Indeed, these rights can be seen as offering an important corrective to the
liberal emphasis on private property and individual freedoms and its consequent
tendency to entrench existing inequalities (otto 1997, 7). In any event, human rights
cannot be categorised simply as liberal imprimaturs: as Dinah Shelton (2007, 1)
amply illustrates, they hold antecedents in millennia of cultural, religious, ethical,
