At the end of April one of the UN’s most high-profile Special Rapporteurs, Philip Alston, finished his six-year mandate on extreme poverty and human rights. Over that time, he completed around a dozen country missions to places including Spain, Malaysia, Lao, Ghana, Saudi Arabia and China. Yet in many ways his tenure as Special Rapporteur was defined by two visits in particular: to the United States (December 2017). and the United Kingdom (November 2018). Both visits had a huge impact in the countries concerned and beyond, especially in shifting public perceptions about poverty and its relationship with human rights – especially social rights. Both also ended with very public attacks against Alston by the US and UK Governments. Nikki Haley, at the time President Trump’s Ambassador to the UN, called the Special Rapporteur’s report a ‘misleading and politically motivated’ document about ‘the wealthiest and freest country in the world;’ while in the UK the then Work and Pensions Secretary, Amber Rudd, attacked what she called the ‘wholly inappropriate’ and ‘politically biased’ nature of Alston’s work.
Why did these Western States, which see themselves as global champions of human rights, react in such a way? There are two basic reasons.
First, the actions of the Special Rapporteur did not fit with their traditional worldview of universal human rights and of the UN human rights protection system. Both the UK and the US (though especially the US) have long understood ‘human rights’ as meaning – primarily – ‘civil and political rights,’ and both have long viewed the UN human rights system as something designed – primarily – to hold developing countries to account for violations of those rights.
This attitude was explicitly conveyed by Ambassador Haley in her rebuttal of Alston’s report. She argued that it was wholly inappropriate for the UN to critique America’s treatment of its poor when it should be focusing instead on developing countries such as Burundi or the Democratic Republic of the Congo (DRC). ‘It is patently ridiculous for the UN to examine poverty in America,’ she wrote in a letter to Senator Bernie Sanders. ‘In our country, the President, members of Congress, governors, mayors, and city council members actively engage on poverty issues every day. Compare that to the many countries around the world whose governments knowingly abuse human rights and cause pain and suffering.’ A similar sentiment lay behind then-Conservative Party chairman Grant Shapps’ rejection of the conclusions of UN Special Rapporteur for adequate housing, Raquel Rolnik, following her 2013 visit to the UK. ‘How it is that a woman from Brazil has come over [here],’ he asked, ‘a country that has 50 million in inadequate housing?’
The second reason for the aggressive rebuttals of Alston’s reports and findings is simply that they ‘struck a nerve.’ The UK and the US are two of the richest countries in the world. However, in both cases (though especially in the US) a broadly neo-liberal approach to the economy and to business, combined with insufficient political and financial investment in social security and health systems, have combined to create deeply unequal societies – with widening gaps between rich and poor. This has had a major impact on the enjoyment of human rights, especially economic and social rights – with the poorest and most marginalised in society hit hardest.
The enjoyment of two social rights in particular – the right to health and the right to education – offer important cases in point.
According to article 12 of the International Covenant on Economic, Social and Cultural Rights (ICESCR), to which the UK is party (the US is not), everyone has the right to the enjoyment of the highest attainable standard of physical and mental health, while according to article 13, everyone has the right to education. Moreover, as per article 2, each State party ‘undertakes to take steps […] to the maximum of its available resources, with a view to achieving progressively the full realisation’ of these rights, as well as others in the Covenant; and to ‘guarantee that the rights […] will be exercised without discrimination of any kind as to race, colour, sex, language, religion, political or other opinion, national or social origin, property, birth or other status.’
The UN Committee on Economic, Social and Cultural Rights has elaborated these rights in a number of general comments.
For example, in general comment 14 (2000), the Committee stated that ‘every human being is entitled to the enjoyment of the highest attainable standard of health conducive to living a life in dignity,’ and that this right contains both freedoms (e.g. control of one’s health and body) and entitlements (e.g. ‘the right to a system of health protection which provides equality of opportunity for people to enjoy the highest attainable level of health’). Regarding the latter point, the Committee emphasised that public healthcare systems must be ‘available in sufficient quantity within the State party,’ ‘be accessible to all, especially the most vulnerable or marginalized sections of the population, in law and in fact, without discrimination on any of the prohibited grounds,’ and ‘be affordable for all.’
Regarding private healthcare, the Committee noted that ‘payment for healthcare services […] has to be based on the principle of equity, ensuring that these services, whether privately or publicly provided, are affordable for all, including socially-disadvantaged groups. Equity demands that poorer households should not be disproportionately burdened with health expenses as compared to richer households.’
In general comment 13 (1999) the Committee states that ‘education is both a human right in itself and an indispensable means of realising other human rights. As an empowerment right, education is the primary vehicle by which economically and socially marginalised adults and children can lift themselves out of poverty and obtain the means to participate fully in their communities.’
As with the enjoyment of the right to health, the Committee makes clear that while ‘the precise and appropriate application of the terms will depend upon the conditions prevailing in a particular State party, education in all its forms and at all levels’ must be ‘available in sufficient quantity,’ and ‘accessible to everyone, without discrimination.’ The Committee notes that this ‘accessibility’ criteria has three overlapping dimensions:
- Non-discrimination – education must be accessible to all, especially the most vulnerable groups, in law and fact, without discrimination on any of the prohibited grounds.
- Physical accessibility – education has to be within safe physical reach.
- Economic accessibility – education has to be affordable to all (whereas primary education shall be available ‘free to all,’ States parties are required to progressively introduce free secondary and higher education).
The right to education in the UK
Following his 2017 visit to the US and 2018 visit to the UK, Alston was excoriating in his verdicts on poverty and the enjoyment of economic and social rights, including the rights to health and education.
Regarding the UK, he noted that although it is the world’s fifth largest economy, one fifth of its population (14 million people) live in poverty, and 1.5 million of them experienced destitution in 2017. Close to 40% of children, he said, are predicted to be living in poverty by 2021. He drew particular attention to the devastating impacts of the Conservative Government’s ‘austerity’ policies (following the 2008 financial crisis) on economic and social rights – especially of the most vulnerable. ‘Food banks have proliferated; homelessness and rough sleeping have increased greatly; tens of thousands of poor families must live in accommodation far from their schools, jobs and community networks; life expectancy is falling for certain groups; and the legal aid system has been decimated.’
In his report to the Human Rights Council following the visit, he drew particular attention to the impacts of austerity on the ‘social safety set’ built in a decades after the Second World War (‘the glue that has held British society together’). This net, he argued, has been ‘deliberately removed and replaced with a harsh and uncaring ethos. A booming economy, high employment and a budget surplus have not reversed austerity, a policy pursued more as an ideological than an economic agenda.’ Such ‘retrogressive measures,’ he said, ‘are in clear violation of the country’s human rights obligations.’
In addition to social security, Alston painted a bleak picture of the impacts of austerity, and related ‘changes to taxes and benefits since 2010’ (changes that have ‘taken the highest toll on those least able to bear it’) and cuts to public spending, on the national health and education systems. The cuts ‘have hit the lowest-income households the hardest, and in England amount to cuts of 16% or £1,450 per person.’ As a consequence of the ‘cumulative impact of these changes on particular groups (e.g. women, children, persons with disabilities, those living in poverty), and the Government’s refusal to ‘heed recommendations including by the Treasury Committee, that it produce and publish robust equality impact assessments,’ according to the Special Rapporteur ‘the country’s policies do not conform with the principle of non-discrimination enshrined in international law.’
The Special Rapporteur’s report also addressed the issue of the private provision of healthcare and education services. He noted that the UK is a ‘pioneer in privatising previously public services across a wide range of sectors.’ And yet, he noted, ‘in 2018, the National Audit Office concluded that the private finance initiative model had proved to be more expensive and less efficient than public financing in providing hospitals, schools and other public infrastructure.’ ‘Abandoning people to the private market in relation to services that affect every dimension of their basic well-being, without guaranteeing their access to minimum standards, is,’ according to Alston, ‘incompatible with human rights requirements.’
Alston’s comments on the private provision of key public services such as education tally with the views of the former UN Special Rapporteur on the right to education, Kishore Singh. Writing in the Guardian in 2015, Singh argued that ‘education is not a privilege of the rich and well-to-do; it is the inalienable right of every child […] Privatisation cripples the notion of education as a universal human right and – by aggravating marginalisation and exclusion – runs counter to the fundamental principles of human rights law. It creates social inequity.’
‘The admission policies of private schools,’ he explained, ‘are based on the ability to pay, and on the socio-economic backgrounds of parents. As a result, private schools lack the diversified system of learning and cultural plurality that is so necessary today. They promote market economy values rather than the humanist mission of education.’
Also writing in the Guardian in 2019, Francis Green and David Kynaston explained the particular impacts of private schooling on equality and non-discrimination, and on economic and social rights in Britain.
‘What particularly defines British private education is its extreme social exclusivity,’ they wrote. ‘Only about 6% of the UK’s school population attend such schools, and the families accessing private education are highly concentrated among the affluent.’ Once there, pupils at the country’s leading private schools (e.g. Eton, Harrow, Westminster) are ‘overwhelmingly […] rubbing shoulders with those from similarly well-off backgrounds’ – thereby perpetuating the UK’s rigid class system and cementing the division of the country into ‘haves and have-nots.’
The consequences of this for an individual’s economic and social rights continue throughout his or her life. ‘The proportion of prominent people in every area of UK life who have been privately educated is striking, in some cases grotesque,’ argued Green and Kynaston. ‘From judges (74% privately educated) through to MPs (32%), the numbers tell us of a society where bought educational privilege also buys lifetime privilege and influence.’ Reference to ‘Who’s Who,’ an indispensable annual guide to the composition of the British elite, finds that ‘for those born between the 1830s and 1920s, roughly 50-60% [of those individuals referenced in ‘Who’s Who’] went to private schools; for those born between the 1930s and 1960s, the proportion was roughly 45-50%. Among the new entrants to Who’s Who in the 21st century, the proportion of the privately educated has remained constant at around 45%.’
Even if a child never achieves celebrity, sending him or her to a private school is usually a shrewd investment – indeed, increasingly so. Studies cited by Green and Kynaston compared children of similar social backgrounds, demographic characteristics and early tested skills, who went on to either private or State education. The studies found that, for those born in the 1960s, by the time those surveyed were in their early 30s (in around 1990) the privately educated were earning 7% more than the State educated. For those born in the 1970s, by the same stage (in the early 2000s – when they had reached their early 30s), the gap between the two categories had risen to 21% in favour of the privately educated.
The right to health in the US
Alston also found the US to be ‘a land of stark contrasts.’ ‘It is,’ he said, ‘one of the world’s wealthiest societies, a global leader in many areas, and a land of unsurpassed technological and other forms of innovation. Its corporations are global trendsetters, its civil society is vibrant and sophisticated, and its higher education system leads the world. But its immense wealth and expertise stand in shocking contrast with the conditions in which vast numbers of its citizens live. About 40 million live in poverty, 18.5 million in extreme poverty, and 5.3 million live in Third World conditions of absolute poverty. It has the highest youth poverty rate in the OECD and the highest infant mortality rates among comparable States. Its citizens live shorter and sicker lives compared to those living in all other rich democracies.’
What is more, according to the Special Rapporteur, the situation is getting worse. In his report to the Council he noted that his visit had ‘coincided with the dramatic change of direction in relevant US policies.’ Those Government policies included: ‘unprecedentedly high tax breaks and financial windfalls to the very wealthy and the largest corporations; paying for these partly by reducing welfare benefits for the poor; […] seeking to add over 20 million poor and middle class persons to the ranks of those without health insurance; restricting eligibility for many welfare benefits while increasing the obstacles required to be overcome by those eligible; […] and making no effort to tackle the structural racism that keeps a large percentage of non-Whites in poverty and near poverty.’
In his report, Alston focused on the impacts of this high and growing inequality on the right to health. He recognises that ‘the Affordable Care Act [Obamacare] was a good start,’ in addressing unequal and discriminatory access to healthcare, ‘although it was limited and [somewhat] flawed from the outset.’ The Trump administration’s strategy of undermining Obamacare ‘by stealth is not just inhumane and a violation of human rights, but an economically and socially destructive policy aimed at the poor and the middle class.’
This echoes the findings of the American Bar Association (ABA) on the enjoyment of the right to health in the US. In an article by Mary Gerisch, the ABA argues that ‘we have a system designed to deny, not support, the right to health – the US does not really have a health care system, only a health insurance system.’ ‘Our Government champions human rights around the world, insisting that other countries protect human rights, even imposing sanctions for a failure to do so. Yet, our Government is not as robust in protecting rights at home.’
The ABA recognise the historical irony of this situation: ‘the origins of the right to health are here in the US; healthcare was listed in the Second Bill of Rights drafted by Franklin Delano Roosevelt. Sadly, his death kept this Second Bill of Rights from being implemented. Eleanor Roosevelt, however, took his work to the UN where it was expanded and clarified. She became the drafting chairperson for the Universal Declaration of Human Rights […] including article 25 on the right to health. The US, together with all other nations of the UN, adopted these international standards.’
Notwithstanding, the US has never ratified the Covenant drafted to give hard legal form to this and other social rights – the ICESCR. The ABA notes that during the US’ 2015 Universal Periodic Review (UPR) in Geneva, the US delegation even refused to use the words ‘right to health,’ talking instead of ‘health measures.’
‘What the Government did not want to say,’ according to the ABA, ‘is that contrary to ensuring the right to health, the US continues to violate [its commitments] under the Universal Declaration of Human Rights ‘with a system that discriminates against minority groups and/or all in poverty.’ ‘The Universal Declaration does not condition health upon ability to pay, citizenship, or any other condition. The US does. By codifying a system allowing huge corporate profits on healthcare as a commodity, our Government has actually impaired, not improved, our right to health.’
This situation has, of course, been rendered far worse by the current COVID-19 pandemic. Thanks to Congress, coronavirus tests are now free for all Americans. But if an individual does test positive for COVID-19 and requires treatment, the NGO FAIR Health has estimated that he or she can expect to pay anywhere between US$42,486 and $74,310 if they are uninsured or if they receive care that’s deemed out-of-network by their insurance company. Even for those with insurance and using in-network providers, out-of-pocket costs will be between $21,936 to $38,755.
Responding to this situation, as well as to news that the Trump administration is to publish a ruling that would dramatically undermine the Affordable Care Act’s non-discrimination provisions, on 20 May a coalition of 279 American human rights NGOs issued a joint statement warning that Trump’s decision would: ‘dangerously embolden healthcare providers, hospitals, and insurers to claim a right to refuse testing or treatment — including for COVID-19 — to many people in need, create hurdles for people with limited English proficiency, and abandon efforts to maintain functional communication technologies for people with disabilities.’
Echoing a 1966 speech by Martin Luther King during the ‘Poor People’s Campaign’ during which he said that ‘of all the forms of inequality, injustice in health care is the most shocking and inhumane,’ the statement ended by asserting that ‘access to health care is a human right – any such steps to further entrench discrimination in access to healthcare would be ‘wrong at any time, but especially harmful during this global pandemic.’
Feature photo: Philip Alston’s country visit to the UK in 2018. Picture by Saara Idelbi
Share this Post