'Lodestar in the Time of Coronavirus? Interpreting International Obligations to Realise the Right to Health During the COVID-19 Pandemic' by Judith Bueno de Mesquita, Claire Lougarre, Lisa Montel and Sharifah Sekalala in (2023) 23(1) Human Rights Law Review comments
While the right to health has gained significant momentum in international law over the past two years, there is little clarity on what it means for States to comply with this right in times of COVID-19. Taking Articles 2(1) and 12 of the International Covenant on Economic, Social and Cultural Rights as a starting point, our article follows an approach guided by the rules of treaty interpretation under the Vienna Convention on the Law of Treaties to suggest how right to health obligations to prevent, treat and control infectious diseases should be interpreted in relation to COVID-19, and how these obligations interact with general obligations of immediacy, progressive realisation, minimum core and international assistance and cooperation in this context. This article makes a novel contribution to clarifying the right to health during COVID-19, thus enhancing capacity for the oversight of this right; its incorporation in global health law; and the understanding of its corresponding obligations in future global health emergencies.
The authors argue
Since the outbreak of COVID-19, multiple international human rights bodies have expressed particular concern about the impact of the pandemic on the realisation of the right to health, calling on States to foreground this human right in their COVID-19 responses. Indeed, Article 12 of the International Covenant on Economic, Social and Cultural Rights (ICESCR), the central international human rights obligation on States vis-à-vis infectious diseases, requires them to take steps necessary for the ‘prevention, treatment and control of epidemic, endemic, occupational and other diseases’ (Article 12(2)(c)). However, there has been limited analysis of what this obligation entails by these international human rights bodies, including UN treaty bodies and Special Procedures and regional bodies, and by scholars. Article 12(2)(c) was given cursory attention in General Comment 14 of the UN Committee on Economic, Social and Cultural Rights (CESCR), the most authoritative interpretation of Article 12. It was also neglected during other recent public health emergencies of international concern such as Ebola, MERS, SARS, Swine Flu and Zika. Such limited focus meant that there was little existing analysis that could inform the interpretation of States’ Article 12(2(c) obligations in the context of COVID-19. Since COVID-19 emerged, it has resulted in more than 6 million deaths and half a billion confirmed cases worldwide, yet the requirements of this obligation in relation to COVID-19 remain far from clear.
Furthermore, clarity surrounding States’ obligations is also muddied by ongoing uncertainties in interpreting the general legal nature of obligations under ICESCR Article 2(1), which provides that: Each State Party to the present Covenant undertakes to take steps, individually and through international assistance and co-operation, especially economic and technical, to the maximum of its available resources, with a view to achieving progressively the full realisation of the rights recognised in the present Covenant by all appropriate means, including particularly the adoption of legislative measures.
Whilst the requirements of progressive realisation and international assistance and cooperation frame right to health obligations, their nature and scope have remained contested. Financial resources and international cooperation have been critical for COVID-19 responses, yet many States have fallen short. Challenges to progressive realisation have been experienced during the crisis with States arguably taking retrogressive measures in relation to the right to health and other socio-economic rights and failing to meet so-called ‘minimum core obligations’ (‘core obligations’ hereafter). Given this context, surprisingly little clarification about these obligations has been provided by international human rights bodies. States have thus been without specific guidance as to how they can comply with the right to health in their COVID-19 responses.
This article utilises a doctrinal interpretation of the right to health to fill these interpretive lacunae. Setting out our interpretive approach in Section 1, we employ this approach to suggest an interpretation of the obligation to ‘prevent, treat and control’ COVID-19 in Section 2. With limited existing clarity surrounding prevention and control obligations, we argue that reading the right to health in light of other international instruments, including those that govern global health emergencies, suggests that Article 12(2)(c) should be interpreted in a holistic way to embrace: environmental and social determinants; as well as pandemic preparedness, treatment and control measures that are necessary, proportionate and based in evidence. The breadth of our reading goes beyond the existing approach of the CESCR, which has particularly focused on biomedical measures such as access to treatment and vaccines, and surveillance and health information, an approach which we argue is too narrow. In Section 3, we use the same interpretative methods to delineate the contours of Article 2(1) ICESCR, when applied to the realisation of Article 12(2)(c) in times of COVID-19. While the UN clarified concepts such as immediacy, progressive realisation, core obligations and to a lesser extent international cooperation, by recognising their inherent connection to resource availability, the CESCR seems reluctant to review States’ resources in detail and thus to assess how these concepts operate in practice. Our article argues that the CESCR, and UN Treaty Bodies more generally, should explicitly take into account States’ levels of income when interpreting States’ obligations, to enhance clarity around those concepts.
Interpretative clarity, which we aim to provide in this article, is acutely needed for several reasons. Firstly, it is required to guide States to respect, protect and fulfil the right to health in their COVID-19 responses and to facilitate accountability where they fail to do so. This task is universally and enduringly relevant as COVID-19 has affected populations worldwide and will continue doing so for years to come, making it a key issue in human rights review and implementation. Secondly, we face an ongoing threat from emerging infectious diseases which may play out in similar ways to COVID-19. Clarity about right to health obligations in relation to COVID-19 will help delineate States obligations to prevent, prepare for and respond to future global health emergencies involving epidemics or pandemics and requiring an international response (hereafter ‘global health emergencies’). Thirdly, the global COVID-19 response has been primarily framed by global health governance instruments under the auspices of the World Health Organisation, including the International Health Regulations 2005 (IHR). The IHR creates obligations on States and recognises the right to health in its preamble. However, the relationship between these obligations and the right to health has remained unclear. If the right to health is to play a meaningful role in the COVID-19 global health governance, both in the interpretation of existing instruments and other instruments under development, including a proposed pandemic treaty and the updating of the IHR, it needs clarification.
