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Eduardo Arenas Catalán

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Eduardo Arenas Catalán

This first chapter assesses the underlying reasons for the limited power of social rights. This assessment includes legal doctrines such as neo-constitutionalism and the dynamics of its judicialization, but also the wider influence of the political economy of neoliberal capitalism and the dynamics of commercialization. The chapter contends that the struggle against social inequality entails an inherent element of social rights. The realization of the right to health should therefore be measured by its ability to reconnect with the distinctive elements of social rights as revealed by the principle of solidarity: their democratic pedigree, concern for distributive justice, the inherent trade-offs and the collective nature of the remedies.

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Eduardo Arenas Catalán

This chapter is devoted to assessing the official or ‘predominant interpretation of the right to health’. The assessment extends mostly to the International Covenant on Economic, Social and Cultural Rights and to the interpretative work of its monitoring body. The chapter shows how under this interpretation the right to health has been conceived primarily as a legal right; namely, an individual entitlement to claim a minimum access to healthcare, especially in cases of discrimination. The advantages of this interpretation have come at the price of severing social rights from their collective nature. The chapter concludes by asking whether the goal of equal access to healthcare for all can be at all advanced without taking issue with the commercial delivery of healthcare.

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Eduardo Arenas Catalán

This chapter examines the theoretical grounds for conceptualizing the right to health under solidarity. Even though solidarity constitutes a formal founding principle under international human rights law, the principle has paradoxically remained largely underexplored. Under solidarity, the main challenge for social rights such as the right to health consists of guaranteeing equality of outcome. To do so, not only the pervasive dynamics of healthcare commercialization need to be countered; the real challenge for the right to health consists of shifting the financing and provision of healthcare towards a public service that is conditional on citizenship and medical need.

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Eduardo Arenas Catalán

For those that understand social rights as individual legal rights, the main or only challenge left consists of improving access to justice. However, this chapter shows that the only claims that become justiciable under that framework are those linked to equality before the law. While those claims are no doubt important, they in themselves are not able to generate the widespread and comprehensive access healthcare that is needed to advance the notion of health equity. The overemphasis on access to court distracts attention from what is really at stake in relation to the right to health: a collective problem of distributive justice that cannot be appropriated from democratic politics. The chapter concludes by arguing that the crucial positive obligations of the right to health under solidarity consist of discouraging the commercial delivery of healthcare and the provision of universal access to healthcare free of charge.

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Eduardo Arenas Catalán

This chapter discusses the problem of adjudicating the right to health. The purpose of this inquiry is to find out how courts have acted in access-to-healthcare cases: the trends in case law that can be identified, and whether these trends can protect the right to health in line with solidarity. Two trends in case law are considered: one that looks at the right to health as an individual legal right; and another that focuses on the right to health in line with solidarity. Thus, the goal of the chapter is to show what a solidarity-focus of the right to health would and would not look like. This analysis shows that in some rare cases, the judiciary has engaged in a solidaristic defence of the right to health; namely, the effort of combining respect for the democratic pedigree of social rights together with the defence of the public nature of the national healthcare system.

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Eduardo Arenas Catalán

This chapter looks at the financing structure of different health systems. It is hoped that this analysis will shed light on the extent to which these different health systems promote solidarity. In this context, solidarity is about linking the question of access to healthcare to the institutional features of the health system, and financing in particular. In doing so, solidarity not only contributes to the realization of the universality of human rights but it also operationalizes a legal interconnection between human rights and social justice. The assessment is carried out in the context of three focus studies that organize systems of health financing in different ways: Socialist Cuba, Chile’s neoliberal approach, and the Dutch attempt of combining market and solidarity considerations.

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Eduardo Arenas Catalán

Despite the authority and widespread recognition enjoyed by the bodies that defend the predominant interpretation of the right to health, this chapter concludes that this perspective has several flaws that require careful assessment. The inability of these authoritative bodies to identify the commercialization of healthcare as the greatest threat to the right to health is a fundamental part of the problem. The main asymmetry between social rights such as the right to health and classical rights does not come from the lack of justiciability of social rights in court, but from the incapacity of human rights law to block the commercialization of healthcare.

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The Human Right to Health

Solidarity in the Era of Healthcare Commercialization

Eduardo Arenas Catalán

This timely book offers a fresh perspective on how to effectively address the issue of unequal access to healthcare. It analyses the human right to health from the underexplored legal principle of solidarity, proposing a non-commercial understanding of the positive obligations inherent in the right to health.
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Edited by Lukasz Gruszczynski