World Health Day (7th April 2020) found the world in the midst of a fight against one of the biggest threats to our generation, and potentially generations to come. While the world is busy fighting off a raging pandemic, many are questioning whether states could and should have done more to prevent the current outbreak, or at least mitigate its destructive impact. What obligations do states have in relation to pandemics, and do we as individuals, have a legally enforceable right to health? This short note attempts to offer an answer to the above questions. The reader is urged to keep in mind that international law is a complex area of the law; a full legal analysis of these questions would involve complex legal arguments and reference to academic opinions. However, this short digest presents a summary of the main legal issues and conclusions in relation to the right to health and related rights, such as the right to life, the right to be free from torture and inhuman and degrading treatment, and the right to privacy and family life.
The right to health in international law
The right to health is a human right recognised in international law, which entails freedoms and entitlements, and imposes certain positive obligations on states. Article 12 of the International Covenant on Economic, Social, and Cultural Rights (‘ICESCR’) recognises the right of everyone to ‘the enjoyment of the highest attainable standard of physical and mental health’. States signatory to the Convention have a duty to take steps to achieve the full realization of this right. Such steps entail action necessary to, inter alia, (i) ensure the prevention, treatment and control of epidemic, endemic, occupational, and other diseases,[1] as well as (ii) the creation of conditions which would assure to all medical service and medical attention in the event of sickness.[2] The right to health is also recognised in a number of other international instruments,[3] most of which have been signed and ratified by the UK, as well as in the constitution of the World Health Organisation (‘WHO’), which states that ‘the enjoyment of the highest attainable standard of health is one of the fundamental rights of every human being’.
Who is entitled to the enjoyment of the right to health and what does it actually entail?
All people are entitled to the right to health. The right to health is an inclusive right; it includes a wide range of factors, which the Committee on Economic, Social and Cultural Rights calls the ‘underlying determinants of health’. These include (i) safe food, (ii) safe drinking water, (iii) adequate nutrition and housing, (iv) healthy working and environmental conditions, (v) gender equality, and (vi) health-related education and information.[4] All individuals are entitled to the following:
· The right to prevention, treatment and control of diseases.
· Access to essential medicine.
· The right to a system of health protection providing equality of opportunity for everyone to enjoy the highest attainable level of health.
· Equal and timely access to basic healthcare.
· Maternal, child and reproductive health.
· The provision of health-related education and information.
· Participation of the population in health-related decision-making at the national and community levels.
Progressive realisation vs immediate realisation of rights
States signing and ratifying the ICESCR are required to give effect to the relevant rights within their jurisdictions. Article 2(1) of the ICESCR states that states have the obligation to progressively achieve the full realization of the rights contained in the Covenant, i.e. the duty to realise the right extends over time, as opposed to requiring States to take immediate action. This takes into account that states may have resource constraints in implementing the relevant rights fully. What this means is that when it comes to economic, social, and cultural rights, including the right to health, the State does not have immediate obligations; these rights are subject to progressive realisation and full realisation is subject to, among other things, resource availability.
The duty to progressively realise certain human rights does not mean that states do not have any immediate obligations in respect of these rights. In fact, certain aspects of the right to health do give rise to immediate obligations. For example, and notwithstanding resource availability, states must immediately guarantee the right to health in a non-discriminatory manner and must develop specific legislation and plans of action or other similar steps to enable the full realisation of the right to health.[5]
Is the right to health enforceable?
The United Kingdom has signed and ratified the ICESCR, but it has not signed the 2013 Optional Protocol to the Convention on the recognition of the competence of the Committee of Economic Social, Cultural and Cultural Rights (CESCR). This means that even though the UK recognises the rights contained in the Convention, individuals and groups cannot submit communications to the Committee on alleged breaches of the Convention, leaving those affected with no tangible recourse to a remedy in international law.
Customary international law
Even though the Committee does not have competence to review alleged breaches of the Convention in the UK, it is arguable that the right to health is recognised in customary international law.[6] Other international and domestic bodies tasked with enforcing human rights, such as domestic courts and/or regional mechanisms of accountability, could consider the right to health in the context of assessing a state’s compliance with its obligations under international law. Domestic courts which function in a state governed by the rule of law should apply principles of customary international law when the legal issues they are determining require them to do so.
Domestic law
Some countries’ constitutions explicitly recognise the right to health; this makes the right directly enforceable in domestic courts. The human rights framework in the UK derives from the European Convention of Human Rights (‘ECHR’), which does not contain a specific provision on the right to health. However, the ECHR contains provisions related to health, such as the right to life (article 2), the prohibition on torture and other cruel, inhuman, and degrading treatment (article 3), and the right to family and private life (article 8); together, these rights provide protection akin to that provided by the right to health under Article 12 ICSCER, although it is arguable that the scope of such protection is different and is - in some respects - more limited. Unlike the right to health in international law, the relevant Convention rights are subject to immediate realisation, and can be directly enforced in domestic courts.
The positive obligations of the State in a pandemic
States have positive and negative obligations under international law. Positive obligations require states to act, for example, by taking action to protect or ensure access to a particular right, while negative obligations require states to refrain from engaging in certain conduct or taking action that could interfere with individual or collective human rights. The following positive obligations are relevant:
(i) The obligation to protect by law the right to life (article 2 ECHR). The State has a duty to provide a regulatory framework to protect life, as well as an obligation to take preventive operational measures.[7] The European Court of Human Rights has found that such positive obligations arise in the context of healthcare,[8] or in the context of environmental disasters over which the State has no control.[9] In the light of Strasbourg’s interpretation of positive obligations arising under article 2 ECHR, it is highly likely that obligations of a similar nature will be found to arise in the context of a pandemic. However, a causal link would need to be established; there would need to be proof that the relevant deaths occurred as a direct result of the State’s actions or omissions. This may be difficult to establish in a pandemic, but it is certainly not outside the realm of possibilities. It is also notable that there is an overlap between the positive duties of states under Article 2 ECHR and the obligations which arise under Article 12 ICESCR. For example, persistent failure to adequately equip and prepare a State’s national health system to deal with a pandemic could amount to a breach of Article 2 ECHR and/or Article 12 ICSCER, especially in circumstances where there has been compelling publicly available evidence of an impending global pandemic,[10] a failure to act promptly, and where a number of deaths occur as a direct consequence of preventable failures, such as the lack of ventilators, or proper protective equipment for healthcare professionals in the workplace.
(ii) The obligation to carry out an investigation into alleged breaches of article 2 ECHR. States have a duty to investigate loss of life where it is alleged that it was due to breaches of substantive obligations under article 2 ECHR. In the UK the duty to investigate is discharged through mechanisms such as coronial investigations and public inquiries. It is quite possible that a public inquiry will be held at the end of the pandemic, at the very least, to enable the State to learn from any potential failures and to implement measures aimed at preventing or mitigating the destructive impact of a future outbreak.
(iii) The obligation to provide proper medical care (article 3 ECHR). The obligation to provide proper medical care arises under article 3 ECHR on the prohibition from torture, inhuman or degrading treatment. This is likely to be relevant mostly in the case of detainees and those deprived of their liberty, because of their dependence on the government when it comes to access to medical care. Prisons, in particular, are breeding grounds for infections to spread like wildfire, because of the close proximity of prisoners in confined and often poorly ventilated spaces. The State has an obligation to ensure that all detainees and others deprived of their liberty in similar institutions have access to proper healthcare, or if they don’t, that immediate action is taken to release them where it would be proportionate and justifiable in the circumstances, by reference to the public good and the rights of others. In order to reach the high threshold prescribed by article 3 ECHR, the ill-treatment suffered by the victim/s must attain a minimum level of severity, and it must be shown that the State is involved. The assessment of the relevant minimum level of severity depends on all the circumstances of the case, such as the age, the sex, and the state of health of each victim.[11] It is arguable that severe respiratory symptoms, such as the ones caused by more serious cases of the Covid-19 disease, would meet the minimum threshold. It is also notable that states have a positive obligation to adopt appropriate preventive measures to avoid the spread of contagious diseases.[12] This could be done by adopting appropriate screening systems and referral mechanisms for treatment or containment of the disease, where appropriate. If appropriate measures are not adopted in prisons or other institutions where people are deprived of their liberty, the State could be in breach of its positive duty under article 3 ECHR.
(iv) The obligation to protect physical integrity (article 8 ECHR). Article 8 ECHR entails positive and negative obligations. Among the positive obligations of states under article 8 is the obligation to protect the physical integrity of individuals. The scope of the duty to safeguard physical integrity is not defined in Strasbourg jurisprudence; there is an underlying tension between the need to ensure the obligation is met where appropriate, while making sure that states and public bodies are not burdened with a disproportionately high standard of care that they cannot realistically meet. The State could be in breach of its positive obligation under Article 8 ECHR where it fails to enact legislation to minimise the impact of or tackle a known threat to the physical integrity of its citizens.[13]
Conclusion
Even though the right to health is recognised in international law, it cannot be enforced by UK individuals or groups through the CESCR. However, international law is an area of the law that develops in line with global needs, which means that the current legal position can change drastically in the light of a fast-moving and unpredictable global crisis. In theory, the right to health may influence judicial law-making at the domestic and regional level through the application of principles of customary international law. Thus, it is not an entirely ‘toothless’ human right. In any event, the domestic human rights framework in Europe provides for safeguards akin to those provided for under the ICESCR framework and are relevant for practitioners in a wide range of practice areas including crime, family, employment, and public law, where barristers and solicitors often undertake work involving public bodies. A proper understanding of how these safeguards operate and interact with each other at both the domestic and international level is crucial, perhaps now more than ever.
[1] Article 12 (c) ICESCR.
[2] Article 12 (d) ICESCR.
[3] See Article 25 article 5 (e) (iv) of the International Convention on the Elimination of All Forms of Racial Discrimination 1965; articles 11 (1) (f), 12 and 14 (2) (b) of the Convention on the Elimination of All Forms of Discrimination Against Women 1966 (‘CEDAW’); article 24 of the Convention on the Rights of the Child 1989; articles 28, 43 (e) and 45 (c) of the International Convention on the Protection of the Rights of All Migrant Workers and Members of Their Families 1990; article 25 of the Convention on the Rights of Persons with Disabilities 2006.
[4] ‘The Right to Health’, OHCHR and WHO, Fact Sheet No. 31, available at https://www.ohchr.org/Documents/Publications/Factsheet31.pdf
[5] Ibid
[6] There is disagreement among scholars on the precise nature of customary obligations, and how customary international law develops. However, for the purposes of this short digest, there are strong arguments in favour of the contention that the right to health has become a principle of customary international law.
[7] See M. Ozel and Others v Turkey, Requêtes Nos 14350/05, 15245/05 et 16051/05, ECHR, 17 novembre 2015; Budayeva and Others v Russia, Application nos. 15339/02, 21166/02, 20058/02, 11673/02 and 15343/02, ECHR, 20 March 2008; Kolyadenko and Others v Russia, Applications nos. 17423/05, 20534/05, 20678/05, 23263/05, 24283/05 and 35673/05, ECHR, 28 February 2012.
[8] Calvelli and Ciglio v Italy [2002] ECHR 3; Vo v France [2004] ECHR 326.
[9] ‘Guide on Article 2 of the European Convention on Human Rights’, Council of Europe, 31 December 2019, available at https://www.echr.coe.int/Documents/Guide_Art_2_ENG.pdf
[10] For an example see ‘ A world at risk’, Annual report on global preparedness for health emergencies, Global Preparedness Monitoring Board, September 2019, available at https://apps.who.int/gpmb/assets/annual_report/GPMB_annualreport_2019.pdf
[11] Kudla v Poland, Application no. 30210/96, ECHR, 26 October 2000.
[12] Poghosyan v Georgia, Application no. 33323/08, ECHR, 29 June 2017; Ghavtadze v Georgia, Application No. 23204/07, ECHR,3 March 2009.
[13] Y.F. v Turkey, Application no. 24209/94, ECHR, 22 July 2003.