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’ is undermining the principle of universality and threatens the realization of human rights of irregular migrants. Within this context, and that of an economic crisis, Royal Decree-­‐Law 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’; local, regional or supranational political entities less subject to new nationalism that develop policies, contrary to the state’s wishes, to protect human rights [and include irregular migrants]. This process constitutes a process of contentious governance, which can be analysed through the concepts 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 bottom-­‐up pressure 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 different competencies and interests between the national state and the autonomous communities, political colour, diverse political opportunity structures and fragmented social pressure. The more inclusive nature of regional governments, I argue, is an argument in favour of the ‘democratization of human rights instruments’, especially given the recent upsurge of new nationalism.