Realizing the right to health must be the foundation of the COVID-19 response

by Benjamin Mason Meier, Associate Professor of Global Health Policy, University of North Carolina at Chapel Hill and Judith Bueno de Mesquita, Co-Deputy Director, Human Rights Centre, University of Essex Blog BORRAR, Blog BORRAR, By invitation, By invitation BORRAR

The COVID-19 pandemic will inflict cataclysmic suffering throughout the world, with sweeping implications for human rights in global health.  As human rights analysis has begun to assess the wide-ranging infringements of human rights amidst this unprecedented pandemic response, it will also be necessary to consider the implications of this response for the realization of the human right to the enjoyment of the highest attainable standard of physical and mental health (right to health).  The right to health has evolved under international law to provide a foundation for public health prevention, healthcare services, social distancing measures, and global health solidarity in the COVID-19 response. 

A fundamental right under international law 

The right to health, elaborated seminally under the International Covenant on Economic, Social and Cultural Rights (ICESCR), requires States to take steps for the “prevention, treatment and control of epidemic, endemic, occupational and other diseases” and create conditions to assure “medical service and medical attention in the event of sickness.” Framing equity in health, the right to health extends beyond medical care, embracing socio-economic determinants of health such as safe and healthy working conditions, food and nutrition, housing, and water, sanitation and hygiene.  States must take steps to respect (not harm), protect (from third parties), and fulfill (promote) the right to health, requiring States to adopt legislative, administrative, budgetary, judicial, promotional and other measures to implement their obligations.

The UN Committee on Economic, Social and Cultural Rights (CESCR) has outlined essential attributes to guide implementation of the right to health, finding that health services, goods, and facilities should be: 

  • available in adequate numbers; 
  • accessible – physically, economically, and on the basis of non-discrimination, as well as accessible health information;
  • acceptable to all and respectful of medical ethics; and 
  • of good quality.  

Beyond these substantive obligations, the right to health includes a number of procedural requirements, with these principles of the human rights-based approach to health requiring that policymakers are transparent in health governance, making decisions based upon participatory processes as well as scientific evidence, and subject to accountability through monitoring, independent review, and remedy. While universal in scope, some elements of the right to health present immediate obligations, including non-discrimination and equality, whereas others require States to devote maximum available resources toward the progressive realization of the right.  

Disease prevention through public health 

States must take immediate and progressive steps under the right to health to prevent the public health threat of COVID-19.  Even as States consider the appropriate limits on individual freedoms to address a public health emergency—assuring that such limitations are reasonable, proportionate, non-discriminatory, and grounded in law—it is also crucial to consider the collective rights that underlie public health, addressing population-level interests in infectious disease prevention.  Rather than taking proven public health measures to prevent disease, States initially responded to COVID-19 through reactionary and ineffective travel restrictions, neglecting the necessary policies to develop social distancing measures, expand diagnostic testing, and trace contacts of infected persons.  The CESCR has recognized these State failures “to take measures to prevent, or at least to mitigate” the impact of the disease, recommending measures based upon “the best available scientific evidence to protect public health” as reflected in guidance from the World Health Organization (WHO).  

This necessary focus on protecting public health must give special attention to the heightened disease risk of vulnerable and marginalized groups. As in the early years of the AIDS response, it is marginalized groups that are most vulnerable to COVID-19 infection including migrants and displaced persons, those in criminal detention and other institutionalized settings, racial and ethnic minorities, older persons, those living with pre-existing health conditions, persons with disabilities, homeless persons, women and girls, and persons living in poverty.  In recognizing the inherent dignity of all people, creating the conditions necessary to mitigate the pandemic by prioritizing the special needs of marginalized populations, it will be necessary to deinstitutionalize wherever possible; support social distancing, including isolation and quarantine, where necessary; provide contact tracing of infected individuals; and assure that disease testing is available, accessible, and of a sufficient quality. 

Assuring treatment in health centers

For those who are infected, the right to health raises an imperative to ensure appropriate COVID-related health care; however, this crisis has made clear that many healthcare systems are unable to withstand a prolonged health crisis. Pandemic preparedness has been undercut by years of budget cuts, austerity measures, and associated retrogressive measures, with health centers lacking the capacity to meet essential health needs treating both those with the disease and other patients throughout the pandemic response. As COVID-19 patients have overwhelmed health centers, the response has highlighted government failures to realize the availability and accessibility of necessary health care, leading to rationing of essential medical care for patients (including ventilators and oxygen), widespread shortages of personal protective equipment (PPE) to prevent infection among healthcare workers and other frontline staff, and user fees that have left essential services unaffordable for vulnerable populations.  

Devoting the maximum available resources toward the realization of the right to health, it is essential that States develop a coordinated healthcare response to treatment and recovery. This includes measures to mobilize resources in both the public and the private sectors as well as the international community, catalyzing progressive financing measures to assure the availability, accessibility, acceptability, and quality of healthcare services.  In this progressive realization of services, it will be necessary to move toward meeting national needs for ventilators and PPE stockpiles in accordance with WHO guidelines and scientific evidence providing the right to life-saving interventions, distributing scarce resources equitably, and basing medical decisions on individualized clinical assessments and medical need rather than age or disability. This pandemic response can thus revitalize State efforts to implement the right to health through universal health coverage, assuring that no one is left behind in healthcare policy.   

Health-related rights amidst social distancing 

While COVID-19 is a public health crisis that has imposed steep obstacles to realizing the right to health, the pandemic response also poses significant challenges for the encompassing range of human rights that underlie physical and mental health and social wellbeing.  Highlighting the indivisibility and interdependence of human rights in the pandemic response, social distancing measures have already exposed vulnerabilities in the realization of social and economic rights, including the rights to housing, food, water, and sanitation. Social distancing measures disproportionately impact the rights of marginalized and disadvantaged populations—especially those living in poverty, working in the informal economy, or lacking stable housing—threatening sustained access to essential determinants of health.  In the absence of social security protections, orders to “stay at home” are impoverishing communities, keeping individuals from purchasing basic necessities, closing off necessary support services, and widening health inequities across populations that lack employment.  

The interconnected nature of health-related human rights requires a comprehensive response to social distancing with the right to health at the fore, recognizing the impact of underlying determinants of public health. Amidst this period of social distancing, it will be necessary to fulfill minimum core obligations to realize social determinants of health by securing the livelihoods of vulnerable populations engaging in social distancing.  For those required to remain employed outside the home, especially those working in industries that are not amenable to physical distancing, it will be crucial to adapt these workplaces to minimize the risk of infection in their work.  States must take these measures to alleviate the impact of the pandemic across the economic and social rights that inequitably impact vulnerable populations, reviewing these actions through human rights impact assessments and facilitating accountability for state efforts to realize determinants of health during an extended pandemic response.  

International obligations to realize global solidarity

COVID-19 is a global public health crisis that calls for global solidarity and coordinated action, yet States have largely responded with nationalist approaches that ignore the need for collective action in facing this common threat. Although many high-income countries are continuing to experience high mortality as well as devastating inequalities, the global dynamics are shifting as the pandemic takes hold in low- and middle-income countries, causing widespread death, hunger, and suffering. Where health systems are weak—with overcrowded living conditions, fragile sanitation infrastructures, and limited healthcare resources—COVID-19 is an impending health disaster. Despite repeated WHO pleas for global solidarity in this global response, high-income countries have failed to provide sufficient international assistance and cooperation to countries in need, threatening global health security, opening the door to complex humanitarian emergencies, and threatening the health and human rights of the most marginalized in the world.

The global health challenge of the pandemic, in the context of stark international inequalities, requires a dramatic shift toward global solidarity and shared responsibility. The ICESCR, consistent with other human rights treaties, recognizes that international assistance and cooperation is an obligation of all States in a position to assist. Central to global infectious disease control efforts, this obligation entails the sharing of research, medical supplies, and best practices in combating COVID-19. With WHO holding a vital governance role in coordinating the pandemic response, State support for WHO remains essential through assessed contributions, voluntary contributions, and adherence to WHO guidelines.  Building from support for WHO, these international obligations require support for the UN’s COVID-19 Global Humanitarian Response Plan; limitations on economic sanctions, debt obligations, and intellectual property regimes that impede access to needed resources; and engagement with the UN human rights system to facilitate accountability for human rights in global health.   

Realizing health through unprecedented times

This unprecedented pandemic raises an imperative to reaffirm the universal commitment to the right to health, with the right to health providing a framework to prevent, treat, and respond to this threat across nations.  Looking beyond the immediate response, nations must recognize their obligations under the right to health in framing evolving responsibilities for this rapidly changing world.  As policymakers increasingly recognize that this pandemic will only truly end with the development of an effective vaccine, human rights obligations—at the intersection of the right to health and the right to benefit from scientific progress—will be crucial in progressively realizing universal access to the necessary benefits of this scientific breakthrough, bringing the world together to assure the highest attainable standard of health for all.

Featured image: Hagarla Institute volunteers in Somalia, led by Dr. Deqo Mohamed, teach social distancing, triage COVID-19 patients, and distribute soap, water, and supplies in overcrowded internally displaced persons camps (Photo: Hagarla Institute)

Share this Post