The right to health only found canonical recognition with the adoption of Constitution of World Health Organisation in 1946 which identified that “The enjoyment of the highest attainable standard of health is one of the fundamental rights of every human being without distinction of race, religion, political belief, economic or social condition.” Similarly, Universal Declaration of Human Rights also sanctioned the right to health as an essential fundamental human right by stating the same to be a measure of an adequate standard of living under Article 25. The International Covenant on Economic, Social and Cultural Rights (ICESCR) in its Article 12 is the most important piece of legislation as it obligates State parties to recognize the right to health individually and jointly as the part of the international commune. The right to health has also been assimilated into several treaties such as International Convention on the Elimination of All Forms of Racial Discrimination of 1965, the Convention on the Elimination of All Forms of Discrimination against Women of 1979, and the Convention on the Rights of the Child of 1989. Every so often the international organizations have taken to organize consortiums and country meets to stage the issue. However, many scholars have observed that most of the State actors do not pay heed to international health concerns in the context of their domestic policies This article firstly delineates all the international law instruments from where Right to Health emanate followed by an analysis with what ascendancy the ineffective pursuance of such international obligations can be checked and impelled.
The Committee on Economic, Social and Cultural Rights (CESCR) General Comment no. 14(2000) defines the right to health which includes core components like availability, accessibility, acceptability and quality and is attainable through “numerous, complementary approaches, such as the formulation of health policies, or the implementation of health programmes developed by the World Health Organization (WHO), or the adoption of specific legal instruments”. It has also been elaborated that the right to health includes legally enforceable components. With that being said it becomes sine qua non for every State and its government to ensure that the citizens are not exposed to any sort of bearings which might put their health in peril. It is evident that ensuring the right to health is a duty cast upon the State which it fulfils by providing for safe environmental conditions, accessibility to health care and by reinforcing peace with the international community through its policies.
Why Lockdown Is In Question?
As I write this piece, several countries have imposed lockdown to contain the transmission of the virus. Until we come up with a befitting vaccine to counter the virus’s spread the only possible solution is the aggressive testing of the suspected carriers followed by a lockdown. However, after China, Europe and New York became omphalos for COVID-19 cases, Southeast Asia is slated to be next in line with the cases going unchecked, more precisely unreported. Countries like Myanmar, Laos, Brunei have not till date executed a health plan or a complete lockdown and the countries like Pakistan and Bangladesh, where there is a daily surge in the COVID-19 cases, governments are reluctant to take any action towards lockdown citing consequent economic slowdown as the reason.
The question which requires immediate address is whether the power lies in the hands of organizations like WHO and United Nations to force the States to ensure lockdown in their countries to stop community-based transmission of COVID-19 by citing international obligation as the reason.
The CESCR General Comment no.3, Article 56 of United Nations Charter and Alma-Ata Declaration on primary health care are of particular importance as they make it categorically incumbent upon the State to fully realize right to health as an international obligation. By the same token, the International Convention on Economic, Social and Cultural Rights in its Article 2.1 stipulates for each State to ensure the realization of the rights through “maximum of its available resources”. Apart from the specific obligations States also have individual and joint obligations under the UN Charter backed by resolutions of the UN General Assembly and the World Health Assembly.
Recognition of International Obligations
When the question of the right to health arises in international context certain obligations have been recognized by numerous courts worldwide to be requiring adherence known as erga omnes and jus cogens. The norm erga omnes has been avowed in the case famously known as Barcelona Traction. The relevant excerpt of the judgment is as follows:
“Such obligations derive, for example, in contemporary international law, from the outlawing of acts of aggression, and of genocide, as also from the principles and rules concerning the basic rights of the human person,…others are conferred by international instruments of a universal or quasi-universal character.”
In Campodónico de Beviacqua, Ana Carina v. Ministerio de Salud y Acción Social the Supreme Court of Argentina placed its credence on the international agreements such as ICESCR and directed the State Health Ministry to continue funding the child’s treatment for cancer which the Ministry had initially only voluntarily taken up. The Supreme Court of Argentina on being faced with the question of giving up treatment funding by Health Ministry answered negatively and held “As the court notes, Article 2 Section 1 of that same treaty states that parties are obligated to use “the maximum of [their] available resources” to fully implement the rights guaranteed in the ICESCR and that the federal government is responsible for implementing the agreement.”
The august case of the South African Constitutional Court Minister of Health v. Treatment Action Campaign celebrated the idea of the right to health but within a limited context.
Another frame of reference for recognition of the right to health as an international obligation is by way of jus cogens principles which are considered to be peremptory human rights. International consensus gives way to the jus cogens principles and the state cannot neglect their normative impact as they provide a foundation to the very structure of the international law and its implementation. In precedents like Prosecutor v. Anto Furundzija (1998) and ECHR, Jorgic v. Germany(2007) both norms erga omnes and jus cogens have been identified as being operative in jurisdictions universally for the enforcement of human rights.
It is in all congruity to state that there exists very much of an enforceable international obligation on the part of individual State parties to help in deterring the community transmission of the pandemic. Furthermore, by not resorting to lockdown many countries will endanger the health of the population of other states infamously perceived as “transboundary harm”. Obligation to observe the right to healthy environment finds its voice in the text adopted by the International Law Commission at its fifty-third session, in 2001 (A/56/10) which states that though the concept finds its origin in the context of carrying out of hazardous activities the underlying principle behind preventing transboundary harm is omission and prevention of such activities which would put other State’s health and environment at peril.
States cannot guarantee the highest attainable standard of health to every citizen of the world at large without consideration of its domestic resource constraints. However, the situation today asks us of making an exception looking into the mass transmission that the COVID-19 can potentially create and looking into the limited accessible medical resources available at our dispense, lockdown seems like the only solution, right away.
Correspondingly, there is no denying the fact that the State parties owe it to the international community (civitas maxima) at large to lockdown their country if it ends up becoming the hotspot for the spread of the pandemic but the right to health as an international obligation continues to be lex ferenda i.e., soft law with no precedential backings. Even to buttress the argument that right to health is a human right and an international obligation is required to be observed by the State parties in light of norms erga omnes and jus cogens, the right to health continues to be blocked by the ubiquitous doctrine of state sovereignty. Moreover, international organizations also do not have a substantial mechanism in place to force the State parties to lockdown while citing the same to be their international obligation.
To such a degree, the questions posed at the beginning of this segment stand answered negatively as the subject matter of right to health is not augmented enough to be enforced as an international obligation thus not providing enough latitude to the international organizations to ask countries to lockdown in the wake of the pandemic.