The making of human rights polities: contentious governance and the uneven implementation of human rights. The case of irregular migrants’ unequal access to healthcare in Spain after Royal Decree Law 16/2012

Abstract

The emergence of ‘new nationalism’ undermines the principle of universality and threatens the realisation of human rights of irregular migrants. Within this context, and that of an economic crisis, Royal Decree-Law (RDL) 16/2012 encroached upon irregular migrants’ right to health in Spain. Despite its enactment at national level, several autonomous communities refused to implement the law, among other things in the name of the (human) right to health. The latter depicts the emergence of ‘human rights polities’; political entities at local, regional or supranational levels, less subject to new nationalism, that develop policies in contestation to existing hierarchies to uphold human rights. This process constitutes a process of contentious governance, which can be analysed through the concepts of political opportunity structures, the formation of collective actors and contentious performances. In the context of RDL 16/2012, autonomous communities within Spain have contributed to pressure from the bottom-up to implement human rights standards at regional and national level. Among other things, the gap in the implementation of RDL 16/2012 can be attributed to a divergence in competencies, political colour and interests between the national state and the autonomous communities, as well as diverse political opportunity structures and fragmented social pressure. The more inclusive nature of regional governments, I argue, is an argument in favour of the ‘democratisation of human rights instruments’, especially given the recent upsurge of new nationalism.