COVID-19 Symposium: COVID-19 Responses and State Obligations Concerning the Right to Health (Part 1)

[Tim Fish Hodgson is a Legal Adviser on Economic, Social and Cultural Rights, International Commission of Jurists. Ian Seiderman is the Legal and Policy Director of the International Commission of Jurists.]

In evaluating the existing or potential human rights consequences of the varied State responses to the COVID-19 pandemic, a great deal of attention has been focused on the question of limitations or emergency-based derogations to human rights protections based on public health grounds.  Such analyses may grapple with the legitimacy of these grounds, as well as questions as to their necessity and proportionality.  It will generally be recognized that protecting public health is not only a legitimate, but a supremely important objective. 

What has sometimes been neglected, however, including by legislators and policy makers, is that protecting the right to health is in itself also a hard legal obligation of States.   Merely protecting public health in a general sense is not enough. Rather, what is required is protecting the right to health – and all that a rights-based response entails, including, notably, equal protection for all persons without discrimination.

In that connection, assessing whether State responses to COVID-19 are human rights compliant also involves an assessment as to whether they respect, protect and fulfill the right to health, not to mention the right to life.  Although an issue not treated in this post, we would note that the tensions between measures to address this public health emergency and human rights, observed by commentators in this symposium and elsewhere, may also potentially give rise to conflict between different rights. 

In Part 1 of this post we address the general obligation of States to protect the right to health in the context of COVID-19. We then to turn to that obligation as it relates to the private health sector and private health actors’ responsibilities to respect the right to health.

In Part 2 we will discuss the obligation of States to use the maximum of their available resources to combat COVID-19 and realize the right to health. We also consider the permissibility of limitations and derogations of State obligations in this connection.

The right to health under international law

The ‘right to health’ is shorthand for the right to the ‘highest attainable standard of physical and mental health’ in international human rights law. It is a right of everyone, irrespective of citizenship or immigration status and wherever they may reside to healthcare systems, facilities, goods and services that are available, accessible, acceptable and of sufficient quality.

From the outset it should be noted, then, that States are generally obliged to grant any person who requires such access to COVID-19 prevention, screening and treatment measures. This means that ‘triage’ type scenarios in Italian hospitals, in which doctors are forced to choose who to admit and who to treat, represents a prima facie breach of these obligations, notwithstanding that there may well be valid defences that would excuse such breaches.

States, individually and collectively, are the primary duty bearers tasked with making this right real, and ensuring doctors are not placed in such invidious positions. The obligation of States to respect, protect and fulfill the right to health, under classic economic, social and cultural rights doctrine, requires both the actual direct provision of enough fully equipped and staffed health facilities and the goods and services necessary in the specific context of COVID-19. Public healthcare facilities that are inadequate to provide screening, testing and treatment will not comply with these obligations. The overcrowded public health facilitieswe are witnessing in South Africa, to take one example of many from around the world, increase the chances of transmission of COVID-19. These conditions will almost certainly result in violations of the right to health.

Many States have been rightly criticized for the insufficient seriousness with which they have responded to the COVID-19 pandemic. In the United States, the lackadaisical approach of the Governor of Florida to the closing of beaches is a case in point, as is the continuous downplaying of the seriousness of the pandemic by US President Donald Trump, including recent suggestions that he would soon prematurely act to ease restrictions and controls. Where necessary, proportionate and based on evidence, and undertaken consistently with international human rights law, the expeditious (and pre-emptive) implementation of a variety of public health measures including quarantines, lockdowns and travel bans may well be permissible and indeed required in order to effectively discharge the obligation to protect the right to health. As will be touched upon in part 2 and will be explored by other colleagues in this symposium, such measures themselves will have to be designed and implemented in a human rights compliant manner.

Private health sector

There are also obligations that fall under the State’s duty to protecthuman rights, affirmed in general terms in the UN Guiding Principles on Business and Human Rights, to ensure that private entities, including healthcare providers, insurance schemes and pharmaceutical companies do not harm the health and wellbeing of individuals. This is particularly crucial because in many public health systems it will actually be the private healthcare sector that is charged with the direct responsibility for fulfilling the right to health. Private health providers may serve a small proportion of a country’s population, yet they will typically control a disproportionate amount of resources – including hospital beds and respiratory equipment – that may be needed in the screening and treatment of COVID-19.

The approach required to effectively ensure the protection of the right to health will vary from jurisdiction to jurisdiction. In Spain, for instance, the government has ‘nationalized’ private hospitals to increase treatment capacity, which may better allow it to fulfill its obligations. In the United Kingdom, agreements between the government and private hospitals provide for these hospitals to be contracted to work ‘at cost’ and without profit to bolster the State’s capacity to combat COVID-19.

Failures to take adequate steps to enlist the support of private health providers is, however, not the only pressing health rights concern. States have also taken measures to prevent profiteering from COVID-19 by those operating in the private health sector. In Bangladesh, for example, the government has prevented private laboratories from conducting COVID-19 tests for fear that it would be unable to assure quality control of such testing. Based on the historical experience of HIV and other epidemics, there is also reason to be wary of profiteering by pharmaceutical companies if and when a vaccine emerges. In anticipation of the potential for such abuses in South Africa, for example, the government there has enacted regulations to empower it to ‘set maximum prices on private medical services relating to the testing, prevention and treatment of the COVID-19 and associated diseases’. Indeed, private healthcare companies themselves have, at least, under the UN Guiding Principles, a direct responsibility to respect the right to health. Such responsibilities rise to the level of legal human rights duties in some domestic jurisdictions, as the UN Committee on Economic, Social and Cultural Rights has acknowledged. At the most essential level this means adhering to standards while delivering affordable and accessible health-related goods and services on a non-discriminatory basis. It might also, in accordance with heightened ‘social expectations’ arising in the crisis situation of the pandemic, compel more proactive measures to assist in the fulfillment of the rights. This could mean such measures as converting production priorities and eliminating or adopting lower profit margins for certain goods and services. This responsibility of businesses to ‘respect’ the right to health could of course be converted into a domestic legal requirement pursuant to the State’s obligations to protect.