This article has been authored by Manvee Kumar Saidha, a 4th Year law student at School of Law, Christ University.
The right to health forms an indispensable part of human rights. While unparalleled scientific developments in the health sector regularly makes headlines, it is only cause for ephemeral celebration. Accessibility is restricted to individuals who are aware of, and can afford, such à la mode (fashionable) healthcare. The 2017 Global Monitoring Report, published by the World Health Organization and World Bank, reveals that despite a gradual increase in coverage since the year 2000, at least half the world’s population still lacks access to essential health services. It further provides that if current trends were to continue, only thirty nine per cent to sixty three per cent of the global population would be covered by essential health services by 2030.
The subject matter of health cannot be restrictively construed as a nation-specific issue. Contemporary globalization entails trade, tourism, migration, etc., thereby disallowing any country to function in isolation. However, as also made clear by the COVID-19 pandemic, the world in the time of a health crisis is reduced to a community – the members of which are dependent on each other’s cooperation. Achieving health security through such harmony cannot be a sudden occurrence but must rather be a result of pre-determined principles. International law and policy, stimulating international research, assistance and aid, are required to achieve global health governance. It is in this context, that an emerging domain of public international law i.e. international health law, attracts attention.
International recognition of the right to health
Internationally, the right to health was first recognized in 1946 by the World Health Organization (WHO), a specialized agency established under Article 57 of the Charter of the United Nations, in its Constitution. The objective of the instrument is stated to be the attainment of the highest possible level of health for all; preceding which, the preamble defines ‘health’ to mean a state of complete physical, mental and social well-being and not merely the absence of disease or infirmity. Article 25 of the Universal Declaration of Human Rights, 1948 also provides for the right to a standard of living adequate for the health and well-being. The right to health was again instituted in the International Covenant on Economic, Social and Cultural Rights, 1966. Article 12 of the Covenant recognizes the right of everyone to the enjoyment of the highest attainable standard of physical and mental health. Further, Goal-3 of the Sustainable Development Goals aims at ensuring healthy lives and promoting well-being for everyone, at all ages.
The first treaty negotiated under the auspices of the WHO, was the Framework Convention on Tobacco Control. It was developed in response to the globalization of the tobacco epidemic, and was an evidence-based treaty that reaffirmed the right of all people to the highest standard of health. In furtherance of its recommendations, various countries adopted measures to increase tobacco-taxation. In France, the sharp increase in tobacco consumption halved cigarette consumption (from 6 to 3, a day) by 2005, in addition to doubling tax revenue. Even in New Zealand, increasing tax at a rate of 10% annually since 2010, witnessed a reduction in adult daily smoking rates from 21% in 2006 to 15% in 2013.
The WHO, with the aim to further strengthen health security capabilities, implemented the International Health Regulations in 2005. The instrument has 66 Articles and binds 196 countries across the globe, and has been amended in accordance with the demands of the time. By designating responsibilities and obligations upon signatories, it aims to strengthen health-related surveillance and response systems. For instance, it encourages international exchange of expertise, food and sanitation supplies, safe trade, etc., during health issues. India, too, is a signatory to the Regulations, and the International Division of the Directorate General of Health Services has taken measures in furtherance of the same.
Another enterprise of the WHO is the Global Outbreak Alert and Response Network, which is a technical partnership established in 2000. The main objective of the network is to provide technical support to WHO Member States experiencing a human health emergency due to various threats including disease outbreaks, food safety, chemical toxins, zoonosis, natural and manmade disasters etc. The Network that started as a collaboration between 110 institutions, currently comprises of over 250 institutions. This mechanism has resulted in over 135 operations being conducted, with over 2900 experts being deployed to assist various countries across the globe. This is a great example of the commitment and consequent positive outcomes of an active collaborative effort. It signifies that countries can contribute to, and place reliance on, interconnected efforts to achieve global health security.
The way forward
International health law is an underdeveloped field and presently lacks unmitigated recognition. The legal instruments are comparatively exiguous, and there is an unintentional indifference towards the subject. The latter aspect may however, hopefully, gain momentum in terms of academic engagement and viable contributions post the COVID -19 pandemic. Additionally, various vulnerabilities and risks to human health are associated with climate change. With the rate of climate change now faster than ever, greater health emergencies are predicted. Consequently, a greater level of preparedness is required.
Though there does exist a general awareness and acknowledgment regarding the importance of health among the international community, one cannot deny the value of law’s sanction. While the counterargument highlighting the non-binding nature of public international law may arise at this juncture, it is rendered rather insignificant considering the fact that there exists no other practical way to ensure global health security. The Lancet–O’Neill Institute Commission on Global Health and Law, for instance, shows how law can be a powerful tool in advancing global health. The Commission articulates the crucial role that law plays in achieving global health with justice, through legal instruments, legal capacities, institutional reforms, and firm adherence to the rule of law. It attempts to identify ‘legal determinants’ which form the basis of expected action; thereby calling upon state-actors to address such elemental issues. Their studies argue that law remains an underutilized measure to tackle global health issues, and by embedding universal norms and accountability, international health law can encourage and sustain good health governance.
Further, international health law paves way for countries to enter into symbiotic relationships in the event of a health crisis, thereby promoting membership if backed by an appropriate legal instrument. This is because, though international health law, as any other branch, may be non-binding in nature, the set-out principles tend to attract state action on the basis of political dynamics and will. No country can exist in isolation, and the very urge of nations to secure such affiliation and assistance must be targeted. Though it primarily requires state-centered initiative, once introduced in a country by way of legislation or policy, public action and judicial activism will take the implementation forward. Thus, it is only a matter of moral recognition of sorts, after which, induction in state approach will naturally follow. However, in addition to relying on an ethically driven operation, instruments of international health law can induce active participation based on incentives. If nothing, monetary or fiscal advantages and sanctions will secure a nation’s interest. The best example of the same is the WHO Framework Convention on Tobacco Control; exercising the tax principle of which provided a two-fold benefit i.e. reduced consumption and increased revenue. Additionally, other recommended measures such as advertising, sponsorship, bans etc., also proved beneficial. The WHO Report on the Global Tobacco Epidemic, 2013 ascertains that about 2.3 billion people were covered by at least one tobacco control measure, and 24 countries with 694 million people had introduced complete bans on its promotional advertising.
Thus, despite its state-centered nature, some international measures have truly benefited global health. It may continue to remain a challenge, but with a focus on state interaction, a concrete effort must be made towards ensuring international reciprocity or reflection in domestic legislation.
The right to health does not exist in isolation. Since the right entails both, the prima facie right to healthcare services, and the underlying rights with respect to healthy living conditions, it is correlated to various other existing human rights – whether directly or indirectly. The right to a clean environment, the right to water, the right to sanitation, the right to education, etc., affect, and are affected by the right to health. International health law possesses the potential to steer global healthcare initiatives in the right directions.
The least that a comprehensive framework of international health law will do, is stimulate domestic debate and participation, and encourage citizens to demand for their basic human right to health. With increasing globalization determined to be a defining feature in the times to come, it is also pertinent that nations are motivated to balance other socio-economic interests with due considerations to health governance.
All things considered, the current health scenario (and the way it is being handled) reflects an urgent need for a more progressive international health law. Good health for all will not be cultivated merely by international initiatives or instruments but will definitely be a step forward in the right direction.