ESIL Reflection – States’ Resilience to Future Health Emergencies – Connecting the Dots between Core Obligations and Core Capacities

This article is written by Brigit Toebes and first published for the European Society of International Law, availabe at: https://esil-sedi.eu/esil-reflection-states-resilience-to-future-health-emergencies-connecting-the-dots-between-core-obligations-and-core-capacities/

Introduction

Covid-19 has put a spotlight on the responsibilities of States under the International Health Regulations and on State accountability in case of a breach.[1] In addition, there has been much debate about how measures to protect against Covid-19 infringe on the enjoyment of civil and political rights, in particular rights to privacy and freedom of movement.[2] It will be important to evaluate these matters carefully given the current crisis.

While these approaches and dimensions are valuable, we should also look beyond this crisis and address country preparedness to future infectious disease outbreaks. To this end, this Reflection assesses how according to international law, all countries around the world are required to be prepared to respond to a future public health emergency. It does so from the perspective of the right to health as an economic and social right, in interaction with the International Health Regulations (IHR). This contribution is grounded in the understanding that Covid-19 reflects, in essence, a crisis of the right to health: because countries do not deliver the right to health as reflected by the IHR, many other problems including violations of international law arise.

The right to health

To understand the interaction between the right to health and the IHR, one must go back to the period right after WWII. It was a period of optimism and belief in a better and healthier world, a time where the idea was voiced that ‘medicine is one of the pillars of peace’.[3] Already in 1946, the Constitution of the World Health Organization (WHO) was adopted, the founding document of the Organization, which led to WHO’s establishment in 1948. It is a remarkable and ground-breaking document in many ways. The Preamble to the WHO Constitution defines health as a ‘state of complete physical, mental and social well-being, and not merely the absence of disease’. This definition has often been criticized for being too absolute, yet it should be seen in the light of post-war idealism, and can be appreciated for its reference to mental and social well-being as important dimensions of health.[4]

The Preamble was also pioneering for its recognition of health as a right: ‘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’. This wording informed the right to health provisions in the UN human rights treaties that were adopted in the decades thereafter. Probably, the most authoritative provision is Article 12 of the International Covenant on Economic, Social and Cultural Rights (ICESCR, 1966), which stipulates the ‘right to the highest attainable standard of health’. Other key provisions include Article 12 of the Convention on the Elimination of Discrimination Against Women (CEDAW, 1979), Article 24 of the Convention on the Rights of the Child (CRC, 1989), and Article 25 of the Convention on the Rights of Persons with Disabilities (CRPD, 2006). Early this century, Articles 12 ICESCR and 24 CRC have been complemented with General Comments, explanatory documents which carry the status of soft law but are nonetheless seen as authoritative.[5]

As indicated already, the WHO was the first international organization to recognize the right to health as a human right. However, over the past 73 years of its existence, the WHO has not manifested itself as a human rights organization. Yet the Organization has gradually embraced the human rights framework owing to the way that it has been developed by the UN human rights mechanisms.

The International Health Regulations

The WHO Constitution grants considerable legislative powers to the World Health Assembly (WHA). Based on Articles 19-23, the WHA may adopt conventions, (binding) regulations, and (non-binding) recommendations. The results have been very disappointing so far: since its establishment in 1948, the WHO has only adopted one treaty (the Framework Convention on Tobacco Control) and two regulations (the Nomenclature Regulations and the IHR). While the results are scant, the Framework Convention on Tobacco Control and the IHR are highly authoritative instruments. Central to this Reflection are of course the IHR.

International collaboration in the field of infectious disease control started in the second half of the 19th century. In 1851, the first international sanitary conference took place. Many similar meetings followed, and subsequent sets of international sanitary regulations were gradually adopted, instruments which precede the current IHR. Since its establishment in 1948, the WHO adopted Regulations in 1951 and 1969, and 2005 – currently the most recent set, which is binding since 2007. Given its status as Regulations, the IHR is binding on all 194 WHO Members without their consent (although Members may notify the Director-General of rejection or reservations).

The new IHR is innovative because of its ‘all hazards’-approach: risks arising from numerous sources are covered, not just a limited list of diseases.[6] Thus, even a terrorist attack with anthrax, or a chemical spill, could fall within the remit of this instrument if it is established that the threat constitutes a ‘public health emergency of international concern’ (PHEIC).[7]  A PHEIC has occurred six times since the adoption of the revised IHR: influenza in Mexico (2009); Ebola in West Africa (2014); polio in Pakistan, Afghanistan and Nigeria (2014); Zika in South America (2016); Ebola in Congo (2018); and Covid-19 in China (2019).

The IHR refers to human rights in various provisions (Articles 3, 23, 32, and 45). These references are, in essence, linked to the respect for civil and political rights including rights to privacy, physical integrity and freedom of movement (e.g. medical consent in Article 23 and respect for travellers in Article 32). Contrary to the WHO Constitution and the Framework Convention on Tobacco Control, the IHR does not mention the right to health.[8] This is an important omission, given that – as I will demonstrate below – the State’s obligation to prepare and respond to infectious disease outbreaks is an essential component of the right to health.

Another important shortcoming of the IHR is its lack of sanctions: States refusing to collaborate with the WHO in case of an outbreak can go without any warning or punishment. As I will argue below, the UN human rights monitoring system may offer complementary mechanisms for holding States accountable.

Core obligations and core capacities: connecting the dots

My main point is that the core obligations under the right to health are closely intertwined with the core capacities under the IHR. Starting with the UN human rights framework, I will now briefly discuss both regimes and discuss their interaction with each other. The key provision stating the right to health is Article 12 ICESCR, which stipulates that States should take steps necessary for ‘(c) The prevention, treatment and control of epidemic, endemic, occupational and other diseases.’ Hence, there is a clear human rights obligation on the part of states to take measures to combat epidemic diseases. An explanation of the meaning and scope of the right to health is provided in General Comment 14 to Article 12 ICESCR. As a General Comment, this instrument is not legally binding, yet is seen as (highly) authoritative. Two recognized components from this General Comment are important for infectious disease control:

AAAQ – according to the General Comment, the right to health contains a set of interrelated and essential elements, which are considered to provide guidance to the actions by States: availability, accessibility, acceptability and quality. Accessibility has four overlapping dimensions (see Table I). This so-called ‘AAAQ’ is an authoritative set of standards that is increasingly applied across international and domestic health settings. While it certainly lacks precision, it helps to identify the weak spots in health decision making. Given that these (and similar) principles are applied frequently in health settings and because their importance is underscored by governments and health authorities, I suggest that this framework is emerging as a norm of customary international (health) law.

The AAAQ is also very informative in the context of Covid-19, as it pinpoints the weak spots in this crisis. Firstly, key problems in this crisis relate to a lack of availability of health personnel, intensive care beds and drugs, masks and gloves. Furthermore, many problems occur in the context of accessibility, e.g. discrimination in access to healthcare of vulnerable persons (older persons, persons with low socio-economic status, persons with underlying health conditions), and a lack of geographically accessible, affordable and good quality healthcare. Thirdly, in terms of acceptability, Covid-19 creates many complex healthcare settings where medical ethics are under threat, for example in care homes where older and disabled persons are denied any contact with the outside world. Lastly, in terms of quality, due to a scarcity of properly trained personnel and suitable medical equipment, many are deprived from accessing good quality healthcare. Again, while this framework lacks precision and may not be used to identify concrete human rights violations, it helps to frame the analysis and debate about how the right to health is guaranteed in the context of Covid-19, and it shows to what extent countries are prepared to address the next crisis.

The full article is availabe via: https://esil-sedi.eu/esil-reflection-states-resilience-to-future-health-emergencies-connecting-the-dots-between-core-obligations-and-core-capacities/