By Care is an integral aspect of many Asian societies. From the foundational principle of filial piety governing all human relationships in society, to more subtle expressions of care for others found in concepts like omoiyari, care is deeply rooted in Asian culture. However, it can be difficult to express care in legal terms, and even harder to formulate it as a matter of right. This is why it likely comes as a matter of interest to Asian nations that the Inter-American Court of Human Rights (IACtHR) recently decided on, and recognised the existence of, a human right to care in its Advisory Opinion OC-31/25on The Content and Scope of the Right to Care and Its Interrelationship with Other Rights.*
Care and Development
The request for the court’s Advisory Opinion was lodged by Argentina in January 2023. It petitioned the court to advise on ‘the content and scope of care as a human right, and its interrelationship with other rights’. In its request, Argentina invoked a wide range of provisions from several human rights instruments to establish a potential right to care, but relied in particular on the right to development in Article 26 of the American Convention on Human Rights (ACHR). This is especially relevant to Asian States in which the right to development may be a key driver for whole-of-society advancement. For example, the (otherwise non-binding) ASEAN Human Rights Declaration includes three provisions on the right to development that do not only engage with development per se, but note that the right ‘should be fulfilled so as to meet equitably the developmental and environmental needs of present and future generations’ (Art 35) and that ‘Member States should adopt meaningful people-oriented and gender responsive development programmes’ (Art 36). Such stipulations align with care being an intergenerational concept that places people at its centre, and the need to address its disproportionate provision as unpaid work by only one gender (women).
A Human Right to Care
In Advisory Opinion 31, the IACtHR takes as its starting point that ‘at different stages of their life cycle, human beings depend on receiving or providing care’, with the latter comprising ‘a set of actions necessary to preserve human well-being, including assistance to those who are in a situation of dependency or require support, whether on a temporary or permanent basis’ [47]. As such, care is a ‘basic, inevitable and universal need’ and minimum care conditions must be ensured for ‘a dignified existence’ [48]. Ultimately, as the Court emphasises throughout its Opinion, care is an expression of human dignity.
Employing a systematic (that considers the ACHR holistically, rather than assign aspects of care to different provisions in a fragmented manner), evolutive (that regards the Convention as a living instrument able to address the challenges of present times) and pro personae (aimed at construing rights for individuals broadly) approach to interpretation, the IACtHR concludes that a stand-alone right to care exists under the ACHR, based on a combination of provisions [112]. The international human right to care has three dimensions: to receive care, to provide care, and to exercise self-care ([116]-[118]). As helpfully summarised in the Court’s Press Release:
- The right to receive care entails that all individuals who have a degree of dependency have the right to receive quality, sufficient and adequate care to live with dignity. This care must guarantee their physical, spiritual, mental and cultural well-being.
- The right to provide care consists of the right to do so in conditions of dignity, both in an unpaid and paid basis. It entails that caregivers can perform their work without discrimination, with full respect of their human rights, and guaranteeing their physical, mental, emotional, spiritual and cultural wellbeing.
- The right to self-care is the right of caregivers and those who receive care to ensure their own well-being and to address their physical, mental, emotional, spiritual and cultural needs.
These rights are further expanded upon in the judgment with special attention for women caregivers (including the need for a more equitable distribution of care) (esp [136]-[152]), and the identification of three groups that are in particular need of access to care: children, older persons and persons with disabilities ([173-202]).**
An Asian Right to Care?
Notably, according to the IACtHR, the human right to care ‘is governed by the principle of social and family co-responsibility, since care is the joint responsibility of the individual, the family, society, and the State’ [113]. A right to care that is able to embrace collective aspects and responsibilities within and towards society, and that identifies the family as a key actor in caregiving is not only realistic, but likely compatible with the socio-cultural landscape in many Asian jurisdictions. This might make it easier for Asian States to contemplate adoption or recognition of a national or regional right to care. Already, existing research by Asian scholars such as Jaclyn Neo or Jaehong Lee explores the potential for the constitutionalisation of care. The Inter-American decision might bolster this scholarship and present practising lawyers with a persuasive case reference for care-based arguments. It will then be for the legislators and courts to provide legal protection for what is already a deeply embedded value in Asian jurisdictions. ▪
*The court has since set up a purpose-built website that features the judgment and associated documents such as written observations submitted to the court.
**A full overview of State obligations found (including those in relation to specific areas such as work, health and education) is outside the scope of this comment.
Author:
Esther Erlings | Senior Lecturer (Associate Prof), Macquarie University
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