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2001

Public Health, Ethics, and Human Rights: A Tribute to the Late Public Health, Ethics, and Human Rights: A Tribute to the Late

Jonathan Mann Jonathan Mann

Lawrence O. Gostin Georgetown University Law Center, gostin@law.georgetown.edu

This paper can be downloaded free of charge from:

https://scholarship.law.georgetown.edu/facpub/1817

29 J.L. Med. & Ethics 121-130 (2001)

This open-access article is brought to you by the Georgetown Law Library. Posted with permission of the author. Follow this and additional works at: https://scholarship.law.georgetown.edu/facpub

Part of the Health Law and Policy Commons, and the Human Rights Law Commons

Public Health, Ethics, andHuman Rights: A Tributeto the Late Jonathan Mann

Lawrence 0. Gostin

he late Jonathan Mann famously theorized that pub-lic health, ethics, and human rights are complemen-tary fields motivated by the paramount value of hu-

man well-being. He felt that people could not be healthy ifgovernments did not respect their rights and dignity as wellas engage in health policies guided by sound ethical values.Nor could people have their rights and dignity if they werenot healthy. Mann and his colleagues argued that public healthand human rights are integrally connected: Human rightsviolations adversely affect the community's health, coercivepublic health policies violate human rights, and advance-ment of human rights and public health reinforce one an-other.1 Despite the deep traditions in public health, ethics,and human rights, they have rarely cross-fertilized - althoughthere exists an important emerging literature. 2 For the mostpart, each of these fields has adopted its own terminologyand forms of reasoning. Consequently, Mann advocated thecreation of a code of public health ethics and the adoption ofa vocabulary or taxonomy of "dignity violations."3

Mann's intellectual and emotional appeal profoundlyinfluenced a generation of scholars, practitioners, and activ-ists. It is now common, and fashionable, to use the discourseof public health, ethics, and human rights in social commen-tary and as a tool of scholarly analysis. True to Mann's vi-sion, people in these fields collaborate much more often andexpress each other's language and ideas. The rhetoric of eth-ics and human rights is frequently applied to the theory andpractice of public health.

Given the prevalence of this discourse, observers mightassume that a coherent, systematic understanding of publichealth ethics and human rights exists or, at least, that schol-ars comprehend the complex relationships among the fields.

Journal of Law, Medicine &Ethics, 29 (2001): 121-130.© 2001 by the American Society of Law, Medicine & Ethics.

Certainly, when scholars stay within their own realm or ex-pertise the arguments are sharp - e.g., philosophers dis-cussing ethics, or international lawyers discussing humanrights. However, language and ideas borrowed across disci-plines are often characterized more by passion than rigor -e.g., philosophers using human rights terminology, or publichealth or human rights workers using the language of ethics.

My claim is that Mann's vision of three complementaryfields devoted to promoting human well-being will not beadvanced until there is greater precision in language andthought. When scholars and practitioners use principles ofhuman rights and ethics as a means to improve communityhealth, they need a more rigorous approach. This articleseeks to supply a greater understanding of the related fieldsof public health, ethics, and human rights. It maps the im-portant features of, and issues in, these respective fields, point-ing out significant similarities and differences in reasoning.

PUBLIC HEALTH

In thinking about the application of ethics or human rights toproblems in public health, it is important first to understandwhat we mean by "public health." How is the field definedand what is its content - its mission, functions, and ser-vices? Who engages in the practice of public health - gov-ernments, the private sector, charities, community-based or-ganizations? What are the principal methods or techniquesof public health practitioners? In truth, finding answers tothese fundamental questions is not easy because the field ofpublic health is highly eclectic and conflicted (see Table 1).4

Defining "public health"

Definitions of public health vary widely, ranging from theutopian conception of the World Health Organization of an

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ideal state of physical and mental health to a more concretelisting of public health practices. Charles-Edward A. Winslow,for example, defined public health as:

the science and the art of preventing disease, pro-longing life, and promoting physical health andefficiency through organized community efforts forthe sanitation of the environment, the control ofcommunity infections, the education of the indi-vidual in principles of personal hygiene, [and] theorganization of medical and nursing service forthe early diagnosis and preventive treatment ofdisease.'

More recent definitions focus on "positive health," empha-sizing a person's complete well-being.6 Definitions of posi-tive health include at least four constructs: a healthy body,high quality personal relationships, a sense of purpose inlife, and self-regard and resilience.7

The Institute of Medicine, in its seminal report on theFuture of Public Health, proposed one of the most influen-tial contemporary definitions: "Public health is what we, asa society, do collectively to assure the conditions for peopleto be healthy."8

The Institute's definition can be appreciated by examin-ing its constituent parts. The emphasis on cooperative andmutually shared obligation ("we, as a society") reinforcesthat collective entities (e.g., governments and communities)take responsibility for healthy populations. Individuals cando a great deal to safeguard their health, particularly if theyhave the economic means to do so. They can purchase hous-ing, clothing, food, and medical care. Each person can alsobehave in ways that promote health and safety by eating healthyfoods, exercising, using safety equipment (e.g., seatbelts andmotorcycle helmets), or refraining from smoking, using il-licit drugs, or drinking alcoholic beverages excessively. Yet,there is a great deal that individuals cannot do to secure theirhealth; to overcome whatever these barriers may be, indi-viduals need to organize, work together, and share their re-

sources. Acting alone, people cannot achieve environmentalprotection, hygiene and sanitation, clean air and surface wa-ter, uncontaminated food and drinking water, safe roads andproducts, and control of infectious disease. Each of thesecollective goods, and many more, is achievable only by orga-nized and sustained community activities.'

The Institute of Medicine's definition also makes clearthat even the most organized and socially conscious societycannot guarantee complete physical and mental well-being.There will always be a certain amount of injury and diseasein the population that is beyond the reach of individuals orgovernment. The role of public health, therefore, is to "as-sure the conditions for people to be healthy" (emphasis added).These conditions include a variety of educational, economic,social, and environmental factors that are necessary for goodhealth. 10

Most definitions share the premise that the subject ofpublic health is the health of populations - rather than thehealth of individuals - and that this goal is reached by agenerally high level of health throughout society, rather thanthe best possible health for a few. The field of public healthis concerned with health promotion and disease preventionthroughout society. Consequently, public health is less inter-ested in clinical interactions between health-care profession-als and patients, and more interested in devising broad strat-egies to prevent, or ameliorate, injury and disease.

Scholars and practitioners have long been conflictedabout the "reach" or domain of public health.l Some prefera narrow focus on the proximal risk factors for injury anddisease. Under this perspective, public health should identifyrisks or harms and intervene to prevent or ameliorate them.This has been the traditional role of public health, exercis-ing discrete powers such as surveillance, infectious diseasecontrols (e.g., screening, vaccination, partner notification,and quarantine), and sanitary measures (e.g., safe food anddrinking water).

Others prefer a broad focus on the societal, cultural,and economic foundations of health. Under this perspective,public health should be more concerned with the underlying

Table 1. Public Health.

Definition Society's obligation to assure the conditions for people's health

Mission To promote physical and mental healthTo prevent disease, injury, and disability

Functions To assemble and analyze community health needsTo develop policy informed through scientific knowledgeTo assure the community by providing services necessary for its health

Jurisdiction/Domain Narrow focus - proximal risk factorsBroad focus - distal social structures (e.g., discrimination, homelessness, socioeconomic status)

Expertise/Skills Epidemiology and biostatisticsEducation and communication

I Leadership and politics

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conditions that are associated with poor health. 12 For in-stance, the field of public health is ultimately interested inthe equitable distribution of social and economic resourcesbecause social status, race, and wealth are important deter-minants of health.13 This inclusive direction for public healthis gaining popularity; consider how many of the federalgovernment's health objectives for 2010 seek a reduction inhealth disparities. 14 Public health researchers are also ven-turing into areas far from their traditional expertise, includ-ing violence, war, homelessness, and discrimination.'3

The problem with an expansive view is that public health- as a field, as a mandate - becomes limitless, as almosteverything human beings undertake affects public health. Bythis account, public and private activities across a wide spec-trum are the work of public health. To many, this all-inclusive notion of public health is counterproductive. First,by defining itself so widely, the field lacks precision. Publichealth becomes an all-embracing enterprise bonded only bythe common value of societal well-being. Second, by adopt-ing such a broad array of behavioral, social, physical, andenvironmental interventions, it lacks a discrete expertise.The public health professions consequently incorporate awide variety of disciplines (e.g., occupational health, healtheducation, epidemiology, and nursing) with different skillsand functions. Finally, by espousing controversial issues ofeconomic redistribution and social restructuring, the fieldbecomes highly political. While public health practitionerslike to conceive of their field as a positivistic discipline thatstresses the importance of science and technique, the field is,in reality, imbued with values and influenced by interest-group politics.

Knowing the agents of public health

If public health has such a broad meaning, then who engagesin the work of public health - governments, the privatesector, academia, charities, community-based organizations?At the governmental level, public health has a significantjurisdictional problem. Even the most powerful public healthagency cannot exercise direct authority over the full range ofactivities that affect health. Many of the determinants of healthare normally the province of other agencies (e.g., agenciesconcerned with education, agriculture, transportation, hous-ing, child welfare, and criminal justice). Furthermore, muchof the behavior that public health authorities try to change(e.g., exercise and diet) is not subject to any governmentalauthority's direct legal regulation. At the same time, many ofthe institutions that affect the public's health are not withingovernment at all, such as managed care organizations, busi-ness and labor, community-based organizations, and academicinstitutions.

16

Thus, before advancing public health initiatives, schol-ars and practitioners need to consider who will be the "driv-ers" of the behavioral or environmental changes they recom-

mend. It matters a great deal in law and ethics who is acting,with what authority, and with what resources. For example,society is sometimes prepared to allow government to wieldpowers to coerce (e.g., tax, inspect, license, and quarantine)that it would not allow the private sector to do.

What are the principal methodologies of public healthpractitioners? Because of the field's broad sweep, the tech-niques of public health are highly diverse. 17 For example,public health practitioners monitor health status, calling forskills in epidemiology and biostatistics; inform and educatethe public, calling for skills in education and communica-tion; and create health policy and enforce law, calling forskills in leadership and politics. This description does notaccount for the many areas of public health requiring exper-tise in domains such as infectious diseases (e.g., virology andbacteriology), the environment (e.g., toxicology), and inju-ries (e.g., social sciences). As the Institute of Medicine ob-served: "public health's subject matter ... necessitate[s] theinvolvement of a broad spectrum of professional disciplines.In fact, ... public health is a coalition of professions unitedby their shared mission.""

Public health as including ethics and human rights

Based on what it has the potential to be, the field of publichealth is caught in a dilemma. If it conceives itself too nar-rowly, then public health will be accused of lacking vision. Itwill fail to see the root causes of ill health and fail to utilizea broad range of social, economic, and behavioral tools nec-essary to achieve healthier populations. 9 At the same time,if it conceives itself too expansively, then public health willbe accused of overreaching and invading a sphere reservedfor politics, not science. It will lose the ability to explain itsmission and functions in comprehensible terms and, conse-quently, to sell public health in the marketplace of politicsand priorities.

2°

Jonathan Mann's intention clearly was to steer the fieldof public health in the direction of a broader, more robustagenda that would address the fundamental determinants ofinjury and disease. Toward this end, Mann presented a syllo-gism that went something like this:

1. If the mission of public health is to assure theconditions for the population's health,

2. And socioeconomic vulnerability and disparityare vital causes of morbidity and prematuremortality,

3. Then public health must address the fundamen-tal determinants of ill health.

Mann, in both his national and international work, conceivedof human rights and ethics as centrally important to the workof public health. Consequently, he passionately argued thatthe primary function of public health is to promote dignity,reduce inequity, and raise living standards for communitieseverywhere.

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PuBuc HEALTH ETmIcsThe field of bioethics has richly informed the practice ofmedicine and decisions about the allocation of health-careresources. However, the field has not devoted the same sus-tained attention to problems in public health. In their discus-sion of personal medical services, bioethicists have stressedthe salience of individuals over communities. Thus, indi-vidual autonomy and liberty often have been regarded astrump cards, superceding countervailing public interests. Byconceiving informed consent and privacy as basic entitle-ments, bioethicists have left little room for societal claims tohealth and safety.

Bioethics scholars are only beginning to go beyond indi-vidual interests to explore the fundamental importance of apopulation's health and well-being. 2' A critical unansweredquestion is whether public health ethics have features whichare distinct from conventional bioethics. Are ethical prin-ciples, or the methods of ethical analysis, materially differ-ent when applied to populations than when applied to indi-vidual patients? In thinking about this question, it is helpfulto consider public health ethics from at least three perspec-tives: ethics of public health (professional ethics), ethics inpublic health (applied ethics), and ethics for public health(advocacy ethics). See Table 2.

Ethics of public healthThe ethics of public health are concerned with the ethicaldimensions of professionalism and the moral trust that soci-ety bestows on public health professionals to act for the com-mon welfare.2 2 This form of ethical discourse emphasizesthe distinct history and traditions of the profession, seekingto create a culture of professionalism among public healthstudents and practitioners. It instills in professionals a senseof public duty and trust. Professional ethics are role-oriented,helping practitioners to act in virtuous ways as they under-take their functions.

Many professional groups, such as physicians and attor-neys, hold themselves accountable through a set of ethical

guidelines, but public health professionals have no ethicalcode. Perhaps the explanation for the absence of an ethicalcode is that no single public health profession exists, butrather a variety of different disciplines. Indeed, some disci-plines with a strong public health orientation have their ownethical codes, such as epidemiologists, educators, and engi-neers. For example, courses of study for sanitary engineersoften include the ethical dimensions of civil engineering,and licensing boards impose a set of ethical criteria.

Jonathan Mann advocated the development of an ethi-cal code, or at least a well-articulated values statement, forpublic health professionals. He felt this would increase thestatus of the field and help clarify the distinctive ethical di-lemmas faced by public health professionals. Public healthprofessionals work in a field of considerable moral ambigu-ity, where guidance would be instructive, but where the de-velopment of such a code of ethics would be challenging.

A public health code of ethics would have to confrontthe salient issue of fiduciary responsibility. To whom do pub-lic health professionals owe a duty of loyalty and how canthese professionals know what actions are morally accept-able? Physicians, attorneys, and accountants have a fiduciaryduty to their clients that informs their moral world. For ex-ample, client-centered professions usually adhere to the prin-ciple that the professional serves the client, advises the clientfully and honestly, takes instructions from the client, andavoids acting against the client's best interests. Certainly, codesof ethics in these professions grapple with the inevitable ten-sions between loyalty to the client and loyalty to the public.For example, attorneys have obligations to the courts and thesystem of justice overall, which at times override the duty tothe client.

Who is the consumer to whom public health profes-sionals may owe a duty of loyalty? Even if consumers ofpublic health services could be identified, does the profes-sion owe those consumers a duty of loyalty or is the dutytruly owed to the community at large? Often public healthprofessionals regulate or coerce consumers not according totheir own best interests, but the interests of others.

Table 2. Public Health Ethics.

Ethics of Public Health Ethical dimensions of professionalism(Professional Ethics) Moral trust society bestows on professionals to act for the common good

Ethics in Public Health Ethical dimensions of public health enterprise(Applied Ethics: Moral standing of population's health

Situation- or Case-Oriented) Trade-offs between collective goods and individual interestsSocial justice: equitable allocation of benefits and burdens

Ethicsfor Public Health Overriding value of healthy communities(Advocacy Ethics: Goal-Oriented, Serves interests of populations, particularly powerless and oppressed

Populist Ethic) Methods: pragmatic and political

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Do public health professionals have a duty to tell thefull truth and, if so, under what standard should they bejudged? Public health professionals may earnestly believe thattheir mission requires vigorous interventions to prevent riskybehaviors (e.g., smoking) or encourage health-promotingbehaviors (e.g., seeking testing and treatment). To achievethis beneficent objective, public health professionals mayexaggerate the risks or benefits of a certain practice or makeclaims that are insufficiently grounded in science.23 Supposethat public health professionals exaggerated the risk of HIVinfection among adolescents in white, middle class subur-ban or rural areas to decrease sexual activity? Would that beconsistent or inconsistent with ethical norms? How wouldan ethical code address the nuanced question of "truth tell-ing" by public health professionals?

Perhaps the public health professional's client is not theindividual consumer, but rather "the community." If so, thenotion of "community" is vague and fragmented. In any givensituation, many different groups may claim to represent com-munity interests. How would an "ethical" public health pro-fessional serve the community interest? Is there any reasonto believe that a code of ethics could guide public healthprofessionals on the issue of fidelity and loyalty?

Ethics in public health

A second form of public health ethics might be calledethics in public health. Ethics in public health is con-cerned not so much with the character of professionals aswith the ethical dimensions of the public health enter-prise itself. Here, scholars study the philosophical knowl-edge and analytical reasoning necessary for careful think-ing and decision-making in creating and implementingpublic health policy. This kind of "applied" ethics is situ-ation- or case-oriented, seeking to identify morally appro-priate decisions in concrete cases. Scholars can helpfullyapply general ethical theory and detached analytical rea-soning to the societal debates common in public health.

The application of general ethical principles to publichealth decisions can be difficult and complicated. Since themission of public health is to achieve the greatest healthbenefits for the greatest number of people, it draws from thetraditions of utilitarianism or consequentialism. The "publichealth model," argue Buchanan and his colleagues, uncriticallyassumes that the appropriate mode of evaluating options issome form of cost-benefit (or cost-effectiveness) calculation- the aggregation of goods and bads (costs and benefits)across individuals.2 4 Public health, according to this view,appears to permit, or even to require, that the most funda-mental interests of individuals be sacrificed in order to pro-duce the best overall outcome.

This characterization misperceives, or at least oversim-plifies, the public health approach. The field of public healthis interested in securing the greatest benefits for the most

people. But public health does not simply aggregate benefitsand burdens, choosing the policy that produces the mostgood and the least harm. Rather, the overwhelming majorityof public health interventions are intended to benefit thewhole population, without knowingly harming any individu-als or groups. When public health authorities work in theareas of tobacco control, the environment, or occupationalsafety, for example, their belief is that everyone will benefitfrom smoking cessation, clean air, and safe workplaces. Cer-tainly, public health focuses almost exclusively on one visionof the "common good" (health, not wealth or prosperity),but this is not the same thing as sacrificing fundamental in-terests to produce the best overall outcome.

The public health approach, of course, does follow aversion of the harm principle. Thus, public health authori-ties regulate individuals or businesses that endanger thecommunity. The objective is to prevent unreasonable risksthat jeopardize the public's health and safety - e.g., pollut-ing a stream, practicing medicine without a license, or ex-posing others to an infectious disease. More controversially,public health authorities often recommend paternalistic in-terventions, such as mandatory seat belt or motorcycle hel-met laws. Public health authorities reason that the sacrificeasked of individuals is relatively minimal and the communalbenefits substantial. Few public health experts advocate de-nial of fundamental interests in the name of paternalism. Inthe public health model, individual interests in autonomy,privacy, liberty, and property are taken seriously, but they donot invariably trump community health benefits. 2s

The public health approach differs from modern liber-alism primarily in its preferences for balancing. Public healthfavors the community's interests, while liberalism favors theindividual's interests. Characterizing public health as autilitarian sacrifice of fundamental personal interests is asunfair as characterizing liberalism as a sacrifice of vital com-munal interests. Both traditions would deny this kind of over-simplification.

Scholars in bioethics have demonstrated convincinglythe power and importance of individual freedom. How-ever, they have given insufficient attention to equally strongvalues of partnership, citizenship, and community.26 Asmembers of a society in which we all share a commonbond, we also have an obligation to protect and defendthe community against threats to its health, safety, andsecurity. Members of society owe a duty - one to anotherand to all - to promote the common good. A new publichealth ethic should advance the idea that individuals ben-efit from being part of a well-regulated society that re-duces risks that all members share.

There remains much work to do in public health ethics.What is the moral standing that should be attached to thecollective good? Does the health of the community have amoral standing that is independent of the health of individu-als within that population? Under what circumstances should

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individual interests yield to achieve an aggregate benefit forthe population?

At the same time, ethics in public health raises the im-portant issue of social justice. How can society equitablyallocate benefits or services, on the one hand, and burdensor costs, on the other? Does an otherwise effective policybecome unfair if it disproportionately disadvantages a racial,ethnic, or religious group? For example, public health pro-fessionals often advocate primary enforcement of seatbeltlaws so police can stop a driver simply for failure to complywith the law. But what if primary seatbelt laws are enforceddisproportionately against African Americans? Similarly,governmental agencies typically advocate an increase in thecigarette tax, even while knowing that the tax is highly re-gressive. Is it fair to disproportionately burden the poor toachieve generally lower levels of smoking in the population?

Public health professionals routinely face these and manyother kinds of dilemmas that could be informed by ethicsscholarship. Think about the dilemmas that occur in theeveryday practice of public health. When do educationalmessages cross the line to become persuasion or propaganda?When does surveillance or research unacceptably interferewith privacy? Under what circumstances - consistent withfree expression - can agencies restrict commercial advertis-ing? In regulating professionals and businesses (e.g., licenses,inspections, and nuisance abatements), how much deferenceshould agencies give to property interests?2 7

Ethics for public health

In addition to "professional" and "applied" ethics, it is pos-sible to think of an "advocacy" ethics informed by the singleoverriding value of a healthy community.28 Under this ratio-nale, public health authorities posit what they think is ethi-cally appropriate, and their function is to advocate for thatsocial goal. This populist ethic serves the interests of popula-tions, particularly the powerless and oppressed, and its meth-ods are principally pragmatic and political. Public healthprofessionals strive to convince the public and its representa-tive political bodies that healthy populations and reducedinequalities are the preferred social goals.

Public health ethics, therefore, can illuminate the fieldof public health in several ways. Ethics can offer guidance on(i) the meaning of public health professionalism and the ethi-cal practice of the profession; (ii) the moral weight and valueof the community's health and well-being; (iii) the recurringthemes of the field and the dilemmas faced in everyday pub-lic health practice; and (iv) the role of advocacy to achievethe goal of safer and healthier populations.

HuMAN RIGHTS

Jonathan Mann viewed human rights as the conscience ofpublic health. He was acutely aware that public health poli-

cies can, and do, infringe on human rights. For example, adecision to compulsorily test, treat, or confine a person withtuberculosis certainly invades a sphere of autonomy or lib-erty. Similarly, surveillance and mandatory reporting invadea sphere of our privacy. It was for this reason that he workedon a "human rights impact assessment" to measure the hu-man rights effects of public health policies. 29

Mann also recognized that treating individuals with dig-nity and respect.- and promoting their human rights - isessential for their health and well-being. Think about HIVprevention among vulnerable women in resource-poor coun-tries in Africa or South America. Public health practitionersmay educate them about the risks of sex and drug use. Theymay even distribute the means for behavior changes (e.g.,condoms and sterile injection equipment). Yet, if women areculturally and economically dependent on, or physically andemotionally abused by, their husbands, they remain power-less to reduce their risk of HIV Mann asserted that real riskreductions could be attained only by giving women morepower and control over their lives. This could be achievedby advancing civil, political, social, cultural, and economicrights - e.g., enacting and enforcing antidiscrimination laws;providing genuine protection against domestic violence; re-ducing socioeconomic disparities; and altering divorce, prop-erty, and estate regulations.

Human rights under Mann's conception provide pow-erful protections of dignity and health. Yet, there is consider-able imprecision in the way that modern scholars and prac-titioners use the language of human rights. Consider the dif-ferent, but overlapping meanings of human rights. Some usehuman rights language to mean a set of entitlements underinternational law, others use human rights to mean a set ofethical standards that stress the paramount importance ofindividual interests, and still others use human rights for itsaspiraional, or rhetorical, qualities (see Table 3). A scholaris bound to be concerned when the terminology of humanrights is invoked without clarifying the sense in which it isintended.

The sources of human rights law

Legal scholars and practitioners use human rights to refer toa body of international law that originated in response to theegregious affronts to peace and human dignity committedduring World War 11.30 The main source of human rights lawwithin the United Nations system is the International Bill ofHuman Rights comprising the United Nations Charter, theUniversal Declaration of Human Rights, and two interna-tional covenants of human rights. Human rights are also pro-tected under regional systems, including those in American,European, African, and Arab countries.3'

In its preamble, the United Nations Charter articulatesthe international community's determination "to reaffirm faithin fundamental human rights, [and] in the dignity and worth

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of the human person." The Charter, as a binding treaty,pledges member states to promote universal respect for, andobservance of, human rights and fundamental freedoms forall, without distinction as to race, sex, language, or religion(arts. 55-56).

Jonathan Mann was born in 1947, the year the Univer-sal Declaration of Human Rights was drafted. The UniversalDeclaration, adopted in 1948, built upon the promise of theCharter by identifying specific rights and freedoms that de-serve promotion and protection. The Universal Declarationwas the organized international community's first attempt toestablish "a common standard of achievement for all peoplesand all nations" to promote human rights (Preamble). It haslargely fulfilled the promise of its preamble, becoming the"common standard" for evaluating respect for human rights.Although the Universal Declaration was not promulgated tolegally bind member states, its key provisions have so oftenbeen applied and accepted that they are now widely consid-ered to have attained the status of customary internationallaw.

3 2

The adoption of the Universal Declaration set the stagefor a binding, treaty-based scheme to promote and protecthuman rights. The International Covenant on Civil and Po-litical Rights (ICCPR) and the International Covenant onEconomic, Social and Cultural Rights (ICESCR) were adoptedin 1966 and entered into force in 1976. The United Stateshas ratified the ICCPR, but not the ICESCR.

The rights contained in the ICCPR are principally nega-tive or defensive in character, affording individuals a sphereof protection from government restraint. These rights,which are to be respected without discrimination, includethe following: the right to life, liberty, and security ofperson; the prohibition of slavery, torture, and cruel, in-human, or degrading treatment; the right to an effectivejudicial remedy; the prohibition of arbitrary arrest, deten-tion, and exile; freedom from arbitrary interference withprivacy, family, or home; freedom of movement; freedomof conscience, religion, expression, and association; andthe right to participate in government.

The Universal Declaration of Human Rights character-izes economic, social, and cultural rights as "indispensablefor [a person's] dignity and the development of his personal-

ity" (art. 22). The ICESCR forms the foundation for "posi-tive rights" - that is, those requiring affirmative duties ofthe state to provide services.33 Such positive rights includethe right to social security, the right to education, the right towork, the right to receive equal pay for equal work and toremuneration ensuring "an existence worthy of human dig-nity," and the right to share in the cultural life of the commu-nity and "to share in scientific advancement and its benefits"(arts. 22-27). Article 12 of the document requires govern-ments to recognize "the right of everyone to the highest at-tainable standard of physical and mental health." Article 25of the Universal Declaration also expressly recognizes a rightto health:

Everyone has the right to a standard of living ad-equate for the health and well-being of himselfand his family, including food, clothing, housingand medical care and necessary social services,and the right to security in the event of unemploy-ment, sickness, disability, widowhood, old age orother lack of livelihood in circumstances beyondhis control.

The two international covenants diverge in their treat-ment of permissible limitations. The ICCPR recognizes thatcertain rights are so fundamental as to be absolute and itproscribes any derogation of them. Non-derogable rights in-clude the right to life (art. 6); freedom from torture and fromcruel, inhuman, or degrading treatment or punishment (art.7); the right to recognition as a person before the law (art.16); and freedom of thought, conscience, and religion (art.18). The ICCPR states that other rights may be justifiablylimited under certain conditions. Freedom of movement, forexample, may be justifiably limited where restrictions are"provided for by law, are necessary to protect national secu-rity, public order, public health or morals or the rights andfreedoms of others" (art. 12.3).

The ICESCR, on the other hand, permits "such limita-tions as are determined by law only in so far as this may becompatible with the nature of these rights and solely for thepurpose of promoting the general welfare in a democraticsociety" (art. 4).

Table 3. Human Rights.

International Law International Bill of Human Rights: civil and political; economic, social, and culturalTreaty obligations: text and precedent

Philosophical Reasoning and argumentationImport of individual interests

Aspirational/Rhetorical Appeal to the fundamental rights of peopleSymbol commanding reverence and respectTool of advocacy

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Invoking "human rights"

The notable features of human rights law are that it followsa set of internationally agreed-upon rules specified in thetext of treaties and other instruments, is informed by prece-dent, and is interpreted by tribunals and commissions. Inter-national human rights law seldom provides easy answers,but, rather, struggles to define and enforce human rights inthe context of the legitimate powers of governments and theneeds of communities.

Ethicists use the language of human rights for related,but different purposes. The fields of ethics and human rightsshare an abiding belief in the paramount importance of indi-vidual rights and interests, but beyond that, their perspec-tives diverge. While human rights scholars stress the impor-tance of treaty obligations, ethicists seldom refer to interna-tional law doctrine. While human rights scholars rely ontext and precedent, ethicists employ philosophical reasoningand argumentation. Consequently, when ethicists adopt thelanguage of international human rights, there is bound to bea certain amount of confusion. For example, if an ethicistclaims that health care is a "human right," does she meanthat a definable and enforceable right under internationallaw exists, or simply that philosophical principles such asjustice support this claim?

Finally, public health students, as well as the lay public,often use the language of human rights for its aspirational, orrhetorical, qualities. Major public health schools, such asthe Johns Hopkins University and Harvard University, givetheir students a copy of the Universal Declaration of HumanRights at commencement or offer special certificates in hu-man rights. When "rights" language is invoked, it is intendedto convey the fundamental importance of the claim. It ex-presses the idea that government should adhere to certainstandards, or provide certain services, because it is right andjust to do so. "Human rights," when it is invoked in argu-ment or reasoning, commands reverence and respect. Usedin this aspirational sense, human rights does not need to besupported by text, precedent, or reasoning; it is self-evidentand government's responsibility simply is to conform.

"Human rights," then, has features in common with"ethics," but human rights and ethics are different fields.Human rights, like ethics, is often concerned with individualrights and interests, and like "advocacy ethics," "human rights"conveys a sense of moral certainty. However, internationalhuman rights is also quite distinct from ethics. The field ofhuman rights is based on a body of rules and precedentswhich are intended to express binding duties. It is complexand evolving, usually rejecting easy resolutions to the con-flict between individual interests and collective goods.

The field of human rights has much work to do if it isto usefully contribute to health policy analysis. For ex-ample, human rights scholars and advocates have not clari-fied the meaning of the right to health.3 4 Theconceptualization of health as a human right, and not sim-

ply a moral claim, suggests that states possess bindingobligations to respect, defend, and promote that entitle-ment.3s Considerable disagreement exists, however, as towhether "health" is a meaningful, identifiable, operational,and enforceable right, or whether it is merely aspirationalor rhetorical. A right to health that is too broadly definedlacks clear content and is less likely to have a meaningfuleffect. For example, if health is, in the World HealthOrganization's words, truly "a state of complete physical,mental and social well-being," then it can never beachieved. Even if this definition were construed as a rea-sonable, as opposed to an absolute, standard, it remainsdifficult to implement, and is unlikely to be justiciable.

Vast scholarship and litigation in international forumswere required to define and enforce civil and political rights.Social and economic rights, notably the right to health, de-serve the same rigorous and sustained attention.36 This, too,is beginning to happen in international forums.37 For ex-ample, the United Nations Committee on Economic, Social,and Cultural Rights recently offered detailed guidance on themeaning of the right to health.38

THE LEGACY OF JONATHAN MANN

This article pays tribute to Jonathan Mann, but argues thatmuch work is needed to advance his vision of three fieldsdedicated to the single purpose of human well-being. Manndemonstrated that public health, ethics, and human rightshave similar objectives and are interrelated. The field of pub-lic health is not solely a scientific pursuit, but should beimbued with the values of ethics and human rights. Conse-quently, public health workers need guidance in their profes-sional roles and daily work. Philosophers, however, haverarely helped to explain the important ethical dimensions ofpublic health. With important exceptions, ethical discoursehas focused narrowly on biological medicine and individualautonomy. Ethical analysis will not enrich the theory andpractice of public health unless it expands its perspective toconsider the equally important values of community, mutualsecurity, and solidarity.

Mann similarly demonstrated that people cannot be fullyhealthy if they do not have human rights. Affording individu-als their rights can be a powerful public health strategy, free-ing them from physical or emotional abuse, social stigma,and economic dependence. Human rights scholars and ad-vocates have given sustained attention to problems of dis-crimination, invasion of privacy, and loss of personal liberty.However, the field has devoted much less attention to social,economic, and cultural rights - notably the right to health.

Mann enunciated important and enduring ideas, butpublic health, ethics, and human rights (as well as the rela-tionships among these fields) are more complex than he in-dicated. Public health itself is conflicted in its mission andfunctions, while ethics and human rights have only begun to

The Journal of Law, Medicine & Ethics

consider problems relevant to public health. The terminol-ogy in these fields may be used interchangeably, but there isa lack of clarity, precision, and consistency. Even the rela-tionships among the fields are not as compatible as we havebeen led to believe. Is the individualistic thinking inherent inethics and human rights always consistent with public health'sfocus on collective well-being? Can the concentration onpersonal rights and civil liberties actually impede the goalsof public health? If so, what analytical tools are available tohelp reconcile the inevitable conflicts and trade-offs? Theseare among the many challenges left by the giant legacy ofJonathan Mann.

ACKNOWLEDGMENTS

This article is based on a book, Public Health Law and Eth-ics: A Reader (University of California Press and the MilbankMemorial Fund, forthcoming 2002). The Reader is a com-panion text to Public Health Law: Power, Duty, Restraint(University of California Press and the Milbank MemorialFund, 2000). I am grateful to several groups that have re-cently met to discuss public health ethics: the Hastings Cen-ter, the Association of Schools of Public Health, the PublicHealth Leadership Society, and a faculty consortium fromGeorgetown University, the Johns Hopkins University, andthe University of Virginia. I am grateful to Daniel Callahan,Jack Dillenberg, Ruth Faden, Bruce Jennings, Jeffrey Kahn,Mike Sage, and Jim Thomas. I am also grateful to the Francois-Xavier Bagnoud Center for Health and Human Rights atHarvard University for carrying on Mann's legacy, particu-larly Stephen P Marks, Sofia Gruskin, and Jennifer Leaning.Most of all, I want to acknowledge and pay tribute to thework of my dear friend Jonathan Mann and his wonderfulfamily - Naomi, Lydia, and Aaron Mann, Marie-PauleBondat, and Mary Lou Clements.

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a Human Rights Impact Assessment for the Formulation andEvaluation of Health Policies," Journal of Health and HumanRights, 1 (1994):58-81.

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37. B.C.A. Toebes, The Right to Health as a Human Right inInternational Law (Antwerpen: Intersentia/Hart, 1999).

38. United Nations Committee on Economic, Social, andCultural Rights, "General Comment No. 14: The Right to theHighest Attainable Standard of Health," 22nd Session, April25-May 12, 2000; L.O. Gostin, "The Right to the HighestAttainable Standard of Health," Hastings Center Reports, forth-coming 2001.