COVID-19 Symposium: COVID-19 Responses and State Obligations Concerning the Right to Health (Part 2)

[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.]

The first part of this post looked at the general obligations of the right to health in the context of the COVID-19 crisis, including in relation to the private sector. We now turn to the question of the obligation of States to harness the maximum of its resources and to ensure the discharge of core obligations.

In short, in the context of COVID-19, States have obligations to reprioritize and focus existing resources, whether financial, human, technological or natural. They must also act to expand existing resources, whether through support from other States or private sources, to ensure the realization of the right to health.

Maximum use of resources

Whatever the strategic approach taken by a particular State, there is a clear obligation to take proactive measures to ensure that private health sectors do not set back COVID-19 responses. The potential for such retrogression is already being realized in India, where private hospitals have turned away patients in dire need of COVID-19 related treatment and care.

There is a misconceived but frequently expressed view that obligations concerning the right to health are somehow ‘soft’ obligations, since the effective enjoyment of the right will depend on a State’s capacities and resources. As noted below, this may be the case at the margins of the highest standard of rights protections, but there remain at all times for all States core obligations related to basic health delivery needed in a pandemic like COVID-19.

The general existing standard, expressed in the International Covenant on Economic, Social and Cultural Rights (ICESCR), is that States must realize the right to health not only within existing resources but ‘to the maximum of its available resources’. In this regard, a State is duty bound to: 1) use all resources it has at its disposal effectively; and 2) enlarge its pool of resources through the support of international co-operation (of other States) and assistance, as well as the ‘private’ contributions of companies, groups and individuals.

Importantly, ‘resources’ in this context are not limited to financial resources.  They may include natural resources, human resources (such as medical professionals, community health care workers and volunteers), technological resources (such as the Internet and equipment for screening and testing), and informational resources (including information about COVID-19 and its spread).

There are several upshots of this expanded understanding of ‘resources’ in this context. 

First, under Article 2(1) ICESCR, States have obligations to realize these rights not only individually, but also through international cooperation and assistance, including economic and technical means. The obligation of international cooperation has been developed in the jurisprudence of the Committee on Economic, Social and Cultural Rights (CESCR) and other sources, such as the Maastricht Principles on Extraterritorial State Obligations in area of ESCR.  This obligation means that States should coordinate with each other in the allocations of responsibility to address COVID-19, as well as acting in concert through international agencies, such as the World Health Organization. In addition, certain States, typically developing States with fewer available resources, should seek international assistance to ensure the effectiveness of their COVID-19 responses when, despite their best efforts, these States are unable to discharge this obligation on their own.

Second, States may be effectively required to act by seeking out donations from private sources and administering donations directly towards the realization of the right to health. The ‘solidarity fund’ set up in South Africa by the government is an example of such an attempt.

Third, since such resources include existing health care professionals and health care facilities, States may effectively be required to take measures to ensure that private and public resources combine towards the most effective possible response to COVID-19.

Fourth, States must take measures to protect health care workers, as far as possible, from exposure to and infection with COVID-19. Healthcare workers are an essential part of States’ ‘available resources’ to combat COVID-19. Doctors should not, as reportedly happened in Egypt, be ‘tricked’ into working in quarantine facilities. Nor should doctors be forced to work without necessary resources such as masks, as reported in Thailand.

Finally, States are required to ensure that all necessary information is made publicly available and accessible to its entire population. For this, public television and radio broadcasts, as well as major grassroots awareness campaigns about COVID-19 and the right to health are necessary in each and every State.

Limitations and core obligations

Much has been said since the outbreak of COVID-19 about the permissible ‘limitation’ or ‘derogability’ of human rights under international human rights law, particularly in the face of declarations of national disasters and national emergencies in countries around the world. For instance, States are permitted, subject to conditions such as necessity and proportionality, to restrict freedom of movement under Article 12 of the International Covenant on Civil and Political Rights (ICCPR) on public health grounds. States may of course also adopt measures derogating from certain rights, to the extent necessary to meet a threat to the life of a nation pursuant to a declared public emergency, including public health emergencies.  Human rights organizations such as Amnesty International and Human Rights Watch have rightly drawn States’ attention to the Siracusa Principles, which may be taken as an authoritative interpretation of the permissible scope of limitations and derogations. These Principles affirm that such limitations of rights as a result of ‘public emergency’ must be strictly necessary, proportionate, carried out in accordance with law and scientific evidence, of limited duration, and subject to review.

Importantly in the context of the right to health, the Siracusa Principles indicate that any such restrictions in the name of a ‘public health’ emergency must be ‘specifically aimed at preventing disease or injury or providing care for the sick and injured’. Given the human rights obligations pertaining to the right to health outlined above, it is reasonable to insist that the ‘public health’ objectives that emergency measures and restrictions are undertaken to cure must be specifically aimed at realizing the right to health.

Moreover, the kinds of limitations and emergency derogation clauses applicable to some rights under the ICCPR and regional human rights treaties do not apply to economic, social and cultural rights. ‘Minimum core obligations’, in ESCR doctrine, are decidedly not subject to limitation or restrictions, and are subject to immediate, not progressive realization.  Such obligations include, for example: accessibility of health facilities, goods and services for everyone; accessibility of minimum essential food that is nutritionally adequate and safe; accessibility of shelter, housing and sanitation, and an adequate supply of safe and potable water. They also include the equitable distribution of ‘all health facilities, goods and services’ whether public or private.

In addition to these core obligations, the CESCR has affirmed that a number of other obligations relevant to COVID-19 are of ‘comparable priority’, so these also should not be subject to emergency-based limitations. These include the provision of ‘immunization against the major infectious diseases occurring in the community’ and ‘measures to prevent, treat and control epidemic and endemic diseases’. States declaring ‘notified’ or ‘national’ disasters, as in India or South Africa, or states of emergency, as in Colombia or Italy, must take care to ensure that these core obligations are fully discharged in the context of pandemics such as COVID-19.

The COVID-19 pandemic clearly constitutes a global public health crisis that is unprecedented during at least the past century.  As with upheavals relating to world war and global security, this pandemic carries enormous rule of law and human rights consequences. As States formulate their responses to the COVID-19 pandemic, they must keep at the forefront the core purpose of protecting public health and realizing the right of everyone to the highest attainable standard of health.