[Editor’s Note: This article is part of a Just Security series, COVID and International Law. All articles in the series can be found here.]
Nearly all States have faced significant challenges as they seek to protect their populations from COVID-19 and prevent its transmission within and beyond their borders. Some States, however, have displayed particularly abysmal responses, leading to widespread infection and deaths.
In Brazil, for example, President Jair Bolsonaro’s deliberate efforts to publicly deny the magnitude of the COVID-19 threat to the domestic population undermined public understanding of the disease’s severity. Such denialism contributed to the lack of seriousness in the federal government’s response to the pandemic and the decision to not disseminate robust guidelines that could mitigate transmission. These failures contributed to a population-adjusted COVID-19 mortality rate that is one of the highest in the world.
Iran’s initial response to the emergence of COVID-19 was recklessly slow and ineffective, revealing a greater concern with protecting public officials than protecting the health of the general public. The government’s refusal to quarantine Qom, an epicenter of the virus, and to restrict flights from China, as neighboring States had done, allowed COVID-19 to spread throughout the country. Iran’s supreme leader, Ayatollah Ali Khamenei, and the Iranian Revolutionary Guard Corps general, Hassan Salami, also shared baseless conspiracy theories about the virus, undermining public understanding of measures necessary to remain safe. The United States’ reinstatement of secondary sanctions on Iran (including new sanctions on Iranian banks) further impeded the Iranian government’s ability to purchase and stockpile medical supplies essential to protecting public health.
The United States also bungled its response to the pandemic. As of early November, it has witnessed more deaths from the pandemic than any other country and has one of the highest cumulative per capita death rates.
This article, the second in this series reviewing the international human rights that have been strained in the ongoing COVID-19 pandemic, examines whether these policy failures might implicate States’ obligations to protect the international right to health. This article first summarizes how human rights conventions define the right to health. It then considers States’ obligations to protect this right in the context of the ongoing pandemic. It also considers whether and how this right extends extraterritorially.
The Right to Health
Numerous international declarations and conventions articulate a human right to health. The nonbinding 1948 Universal Declaration of Human Rights specifies in Article 25 that “everyone has the right to a standard of living adequate for the health and well-being of himself and of his family, including food, clothing, housing and medical care and necessary social services.”
The right to health is most thoroughly conceptualized in the International Covenant on Economic, Social, and Cultural Rights (ICESCR), which stipulates in Article 12 that States parties “recognize the right of everyone to the enjoyment of the highest attainable standard of physical and mental health.” The ICESCR, to which more than 170 States are party (not including the United States), stipulates that States Parties shall take the steps necessary to progressively achieve the full realization of this right. The World Health Organization (WHO) Constitution, to which more than 190 States are party (including the United States), declares 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.”
A number of other treaties also provide protections for health. The Convention on the Rights of the Child (CRC) and the Convention on the Rights of Persons with Disabilities (CRPD) provide that children and people with disabilities should enjoy the “highest attainable standard of health” without discrimination. The Convention on the Elimination of All Forms of Discrimination against Women (CEDAW) specifies States Parties are to take appropriate measures “to eliminate discrimination against women in the field of health care in order to ensure… access to health care services.” Further, the International Convention on the Elimination of All Forms of Racial Discrimination (CERD) creates a duty on States Parties to ensure equality in the enjoyment of “the right to public health, medical care, social security and social services.”
Regional human rights conventions also inform the conception of the right to health and its scope in international law. The American Declaration of the Rights and Duties of Man notes in Article XI that “every person has the right to the preservation of his health through sanitary and social measures relating to food, clothing, housing and medical care, to the extent permitted by public and community resources.” Additionally, the African Charter on Human and Peoples’ Rights stipulates in Article 16 that “[e]very individual shall have the right to enjoy the best attainable state of physical and mental health.” While the European Convention on Human Rights does not explicitly articulate a right to health, it has formed the basis for health-related claims before the European Court of Human Rights. Case law has generally established that agents of contracting States must “refrain from acts or omissions of a life-threatening nature, or which place the health of individuals at grave risk,” and “refrain from treatment which damages a person’s physical health.”
The Right to Health During a Pandemic
ICESCR Article 12 requires States Parties to take steps necessary for “the prevention, treatment, and control of epidemic, endemic, occupational, and other diseases.” The Committee on Economic, Social and Cultural Rights’ General Comment No. 14 elaborates on this obligation, clarifying that the right to treatment entails “the creation of a system of urgent medical care in cases of accidents, epidemics and similar health hazards.” Importantly, while the Article 12 obligation to prevent, treat, and control epidemics is not among the obligations the General Comment identifies as “core” and non-derogable, the Committee has said it is of “comparable priority.” States that have signed but not yet ratified the ICESCR (the United States, Cuba, Palau, and the Comoros) must not take actions contrary to the “object and purpose” of the treaty.
More broadly, General Comment No. 14 also advanced four fundamental elements of the right to health: availability of health care facilities, goods and services in sufficient quantity; accessibility, in terms of non-discrimination, physical access, affordability, and access to information; acceptability, such that health care is ethical and culturally respectful; and the provision of health care of appropriate quality. These elements remain pertinent in all contexts of health provision, including pandemic response.
Regional human rights bodies have affirmed that corresponding conventions establish positive obligations related to the right to health that apply during a pandemic, as Haniya Hasan notes. For instance, the European Court of Human Rights has at least once interpreted the European Convention on Human Rights as imposing health-related duties on States Parties. The Court’s Grand Chamber held in Asiye Genc v. Turkey that Turkey had not taken “sufficient care” to ensure its health system functioned appropriately. Researchers have suggested that despite the absence of an explicit right to health in the European Convention on Human Rights, prior Court judgments can be read as extracting a positive duty of health protection for States Parties based on Article 5(1)’s right to liberty and security.
The Inter-American Court of Human Rights (IACtHR) also found in Poblete Vilches and Others v. Chile that the right to health is a right found within the economic, social, cultural, and environmental rights that Article 26 of the American Convention on Human Rights guarantees. In so doing, the Court found Chile had violated this right to health by failing to take steps to realize the right and to eliminate discrimination in access to health services. Specifically, the Court faulted the Chilean government for inadequate health care in its public hospitals that resulted in a tragic death. The IACtHR articulated that health care services must, parallel to the right to health definition the CESR Committee advanced in General Comment No. 14, “satisfy principles of availability, accessibility, acceptability and quality.” The Inter-American Commission on Human Rights (IACHR) has also granted precautionary measures related to health and medical care in response to individual petitions.
Further, the right to health is not solely positive, but “there is a strong presumption that retrogressive measures taken in relation to the right to health are not permissible” and States Parties should refrain from “interfering directly or indirectly with the enjoyment of the right to health.” International courts have referred to this negative duty of States to not infringe on the ability to access health care. The International Court of Justice (ICJ) determined in Israeli Wall Advisory Opinion (Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territory) that Israel’s erection of a separation barrier between the West Bank and Israel restricts access to health services, and thus violates the ICESCR Article 12 right to health. Some regional bodies’ jurisprudence also underscores States’ duties to refrain from negatively interfering with their citizens’ health, as those obligations are formulated in corresponding regional human rights conventions. In Social & Economic Rights Action Center (SERAC) and Center for Economic and Social Rights (CESR) v. Nigeria, for example, the African Commission on Human and Peoples’ Rights addressed the legal ramifications of environmental degradation stemming from the Nigerian government’s involvement in oil production. The Commission found the government violated the African Charter’s Article 16 right to health by failing to take appropriate precautions and share information on health risks with the public. In doing so, it emphasized States Parties are “obliged to desist from directly threatening the health and environment of their citizens” in addition to taking affirmative measures to protect public health.
Application in the Context of COVID-19
States consequently have obligations to affirmatively protect the right to health of their populations during the current pandemic. This is particularly clear for States Parties to the ICESCR. In an April statement, the ESCR Committee reiterated its guidance from General Comment No. 14 that States Parties establish urgent medical care systems in pandemics. The Committee called on States Parties to “make all efforts to mobilize the necessary resources to combat COVID-19 in the most equitable manner.” In so doing, it outlined several recommendations for States Parties in addressing the current pandemic. It suggested, for example, that States mobilize health care resources and ensure “a comprehensive, coordinated health-care response to the crisis.” It encouraged particular attention to marginalized and vulnerable groups, who are likely to suffer disproportionate negative effects of the pandemic. It further stated that workers should be protected from risks of contagion at work, measures should be adopted to address profiteering, and accessible information about the pandemic be disseminated. These various steps to address COVID-19 would broadly embody the four elements of the right to health the Committee (and regional courts such as the IACtHR) have previously advanced.
However, at a minimum, the right to health (as conceptualized across international instruments) also establishes negative duties for States. As the ICJ Israeli Wall case indicates, government practices or policies that impede access to health care to which individuals are entitled can be violative of this right. In the COVID-19 context, States consequently have negative obligations under the ICESCR and other human rights treaties to not jeopardize people’s health during COVID-19 by diverting essential funds or medical supplies (or, in the future, vaccines) toward illegitimate purposes. Further, providing or knowingly assisting in the distribution of faulty medical supplies or unsafe vaccines would likely violate the right to health; such actions would be similar to those the Nigerian government undertook that, according to the African Commission on Human and Peoples’ Rights in SERAC and CESR, directly threatened citizens’ health. The right to health may also prohibit State actions during the pandemic that have a more indirect impact on individuals’ health: as an example, States should not disseminate misinformation about the virus that facilitates COVID-19’s spread and endangers public health.
While the extent of ICESCR signatory States’ duties not to defeat the object and purpose of the treaty is less clear, it is reasonable to infer that governments of such States (again, including the United States) should at a minimum not undermine or counteract efforts to prevent, treat, or control COVID-19.
Governments may also have obligations to work toward an adequate COVID-19 response arising out of other human rights conventions. Regional human rights bodies have sought to clarify State duties in light of COVID-19; the IACHR, for instance, has recently stated the right to health requires States Parties to the American Convention to “provide timely, appropriate health care and treatment” during the current pandemic. In issuing this clarification, it extended the logic of its Poblete Vilches decision, in which it faulted a State for not providing health services in accordance with the right to health elements of availability, accessibility, acceptability and quality. Furthermore, States Parties to more specialized human rights conventions, such as the CRC, CEDAW, CERD, and the Convention on the Rights of Persons with Disabilities, also have obligations to ensure that health care responses to the virus are inclusive, equitable, and non-discriminatory. Hence states could not, for example, deny treatment to certain ethnic or racial groups or on the basis of sex or disability.
States’ Obligations to Individuals Outside their Territories During a Pandemic
The scope of the extraterritorial reach of the right to health is highly contested, and there is little relevant case law that offers clarity. Article 2(1) of the ICESCR generally requires that States Parties “take steps individually and through international assistance and co-operation… with a view to achieving progressively the full realization” of the rights the Covenant identifies. As Todd Howland notes, “the ‘jurisdiction’ limitation that exists in the European Convention, the ICCPR and the American Convention on Human Rights is conspicuously absent in the International Covenant on Economic, Social and Cultural Rights.” The lack of a clear restriction of jurisdiction in the ICESCR suggests it was intended to have extraterritorial scope. Regarding extraterritorial duties in the context of a pandemic, General Comment No. 14 provides for collective responsibility for the control of transmissible diseases, implying wide extraterritorial application of the right: “[G]iven that some diseases are easily transmissible beyond the frontiers of a State, the international community has a collective responsibility to address this problem.” Though it is not clear the ESCR Committee intended to establish a formal transboundary obligation on States Parties to assist other States in responding to pandemics, its statement underscored the value of such cooperation.
Of note, a group of international experts articulated a set of narrower, negative extraterritorial obligations related to economic, social, and cultural rights (including the right to health) in the non-binding 2012 Maastricht Principles on Extraterritorial Obligations of States in the Area of Economic, Social and Cultural Rights. According to these principles, which draw on existing international law, all States have an obligation to respect such rights “of persons within their territories and extraterritorially”; to “refrain from conduct which nullifies or impairs the enjoyment and exercise of economic, social and cultural rights of persons outside their territories”; and to “refrain from any conduct which impairs the ability of another State… to comply with that state’s… obligations as regards economic, social and cultural rights.”
Extraterritorial Application in the Context of COVID-19
Based on the underlying intent of the ICESCR and General Comment No. 14’s clarifications, States Parties likely have an affirmative duty to work cooperatively with other nations to contain the COVID-19 threat and reinforce health systems. In the April communication referenced above, the Committee outlined a number of extraterritorial obligations that States Parties to the ICESCR have in combatting COVID-19. These include avoiding the obstruction of access to essential equipment, ensuring free flow of necessary goods, and alleviating financial burdens on developing countries.
States Parties to the ICESCR likely also have obligations to avoid impinging upon foreign populations’ right to health. Consequently, States Parties are likely obligated to take reasonable steps to prevent infectious diseases from spreading beyond the State’s territory; to not disseminate pernicious misinformation about the virus that can mislead and endanger foreign populations; and to refrain from deliberately weakening other governments’ capacity to provide essential care to their populations, including through economic sanctions.
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