“It is my aspiration that health finally will be seen not as a blessing to be wished for, but as a human right to be fought for.”
-United Nations Secretary-General Kofi Annan
Human rights are defined as those rights which are inherently possessed by a human being. The principal contemporary articulation of human rights, the Universal Declaration of Human Rights, claims and prescribes universality for these rights. The majority of state Constitutions have provisions for some kind of enforceable right to health and medical care. However, the constitutional definition of health protection varies widely between nations.
Can the right to health be universal considering the divergence of communal practices, societal setup, and economic differences around the globe? In this paper, we present a relative affirmation of the universality of the right to health with the support of a COVID-19 study. COVID-19 has been declared a pandemic by the World Health Organisation (WHO) but, its effect varies substantially across different nations. To fight the outbreak of COVID-19, the WHO offered a human rights approach. The right to health is universal to the extent of its acknowledgment as a human right, but is reduced to relativity when it comes to the means to achieve it. It is often put in the relativity of inequalities which are a result of the globalized neoliberal economic system. Moreover, the economic development of different countries, availability of resources with the state, and lastly, race and ethnicity bring subjectivity into the realm of the human right to health.
Universality Of Human Right To Health
The universal characteristic of human rights is the fact that they are held universally by all human beings. Conceptually human rights are equal and inalienable. In contemporary times, the universality of human rights is granted by the Universal Declaration of Human Rights, which provides universal protection to human rights and is accepted by most nations. Human Rights envisaged in international covenants and conventions have become part of customary international law. Human rights being interdependent, indivisible, and interrelated means that a violation of the right to health impedes the enjoyment of other human rights such as the right to education, life, and food. The universal interpretation of the right to health is not only inclusive of timely healthcare but it also encompasses all determinants of health.
The first articulation of the right to health as a human right was made by the WHO in 1946. The WHO Constitution states, “The enjoyment of the highest attainable standard of health is one of the fundamental rights of every human being without distinction of race, religion, political belief, economic or social condition.” According to Article 25 of the Universal Declaration of Human Rights (UDHR), everyone is entitled to a standard of living. It provides for the health and well-being of each person and of their family. This is also enshrined in Article 12 of the International Covenant on Economic, Social and Cultural Rights.
The acknowledgment of health as a human right by the WHO invites two probable implications: first, the present society aims to achieve an acceptable standard of health by improving health and ensuring equity. Second, this involves costs and includes various issues pertaining to injustice and inequity faced by millions of people in a neoliberal framework. The WHO’s response to COVID-19 presents the universal nature of the human right to health as it urged countries to take urgent and aggressive action by announcing the spread of COVID-19 as a pandemic.
The normative formation of health as a human right has imperative implications on healthcare policies around the globe. Steps have been taken by the WHO to confirm and promote its established principles for the enforcement of the universal right to healthcare. These principles are: equal opportunity, solidarity, and evidence-based practice. The principle of equal opportunity aims to provide access to reasonable healthcare by conquering the impediment posed by limited resources. The solidarity principle represents unity amongst people. Lastly, evidence-based practice ensures collaborated global research. Several technical guidelines have been issued for the assistance of countries to prepare the framework to combat COVID-19. Such technical guidelines worked as guiding principles for nations around the globe to frame their set of rules and regulations at the time of the health emergency. WHO country offices have been working in close contact with the state governments to scrutinize their preparedness and response measures for COVID-19. Thus, the steps taken by this international organization stand in solidarity with every nation and extend support to protect the human right to health of every individual on the planet.
Further, the advice on the use of masks and management of healthcare workers has been positively recognized by these countries. However, the level of adoption and implementation of the universal guidelines vary from nation to nation based on their legislative, judicial, and executive actions. Thus, the universal character of human rights by way of political or legal frameworks do not guarantee universal observance of human rights.
Relatively Universal
It is established that human rights are universal as they are possessed by all individuals. However, not all human beings enjoy these rights invariably. These norms and principles are propounded internationally, but the duty of enforcement lies in the sovereign states. Human rights are “universal in abstraction but national in application”. The differences in the economic, social, and cultural construction of developing and developed nations render the imposition of ubiquitous human rights insignificant. For instance, the right to health in the US will be different than the right to health in India.
The relativity of the human right to health can be studied with the aid of current healthcare challenges imposed by COVID-19. The availability of resources determines the health condition of the very nation. Consequently, everyone cannot be entitled to every health service, nor is everyone entitled to the same health status. Furthermore, the demographic characteristics of different countries strengthen the comparative concept of the right to health. The novel virus is more lethal for people sixty-five and older and for people with chronic health conditions. Approximately twenty-three percent of Italy’s population is 65 years or older, as a result, Italy has a higher Case Fatality Rate (CFR) than many other countries. India has recorded over seventy-five percent of its deaths in people sixty and older and eighty percent of those had co-morbidities. Thus, the overall age distribution and the prevalent health conditions in a nation explain their death rates.
Moreover, the health conditions of a country can be examined by a nation’s economic power and its ability to provide health care services. That being so there cannot be a uniform standard of health. The state is further under an obligation to provide equable health services to all its citizens by bridging the income gap. Thus, it is difficult to accommodate the standard of healthcare in a country as the basic healthcare requirement may differ between economic classes. India’s public health expenditure has been less than two percent of the GDP. This renders the proper implementation of health care rights drafted at the global level quite difficult and irrational.
The relative impact of COVID-19 is reflected in varying death rates around the globe. In Italy, the epicenter of the pandemic, the CFR is almost fourteen percent. Meanwhile, Belgium has the highest CFR at over fifteen percent while Singapore records the least at about a tenth of a percent. All the nations around the globe are disproportionately affected by the pandemic but its actual impact varies. The contrast arises because some states lack access to adequate medical care and have weak public health infrastructures. Social factors, such as housing conditions and population density, and host factors, such as nutritional status and co-existing medical conditions, impose a challenge for the universal enforcement of the right to health amid the pandemic.
Conclusion
Professor Amartya Sen says that the existence of universal rights forms part of a global idea of justice. Nevertheless, the notion of justice holds a different meaning for different states even though the recognition of the need to achieve justice is ubiquitous throughout the world and not bound by a particular culture. Human rights reflect a common morality. Normative principles of the right to health cannot be made universally applicable because of the reasons stated above.
Besides, the right to health may be availed by one having legal nationality. Lack of proper national identity is the biggest hurdle to claim the right to medication. There is a need for formal political recognition by the state to ensure proper implementation of health rights to all. Race and ethnicity also contribute to the ingression of the right to health.
Policy measures to combat the pandemic crisis also differ in every nation. To overcome this pandemic, Japan, first banned entry to visitors from certain areas of China and South Korea, then extended this to 21 European countries and Iran. Australia and New Zealand have also banned entry to all foreigners while India canceled visas for foreigners. The United Kingdom has joined other countries in severely limiting the movement of the public.
Thus, there is universal possession of the right to health but no universal enforcement. A state, therefore, cannot recognize any international imposition without considering its internal societal sphere. No effective implementation can be possible without removing the inherent defects of society. The health of the society, especially those who need it most, is being compromised due to the redundant obligation that the states have towards the international norms. Therefore, the challenge today is the indigenization of human rights and their enforcement within each country’s legal and cultural framework.
Both Sakshi Agarwal and Richa Hudilwala are third-year law students at Dr. Ram Manohar Lohiya National Law University in Lucknow, India.
Suggested Citation: Sakshi Agarwal and Richa Hudilwala, Relative Affirmation Of The Universality Of The Right To Health, JURIST – Student Commentary, April 30, 2020, https://www.jurist.org/commentary/2020/04/agarwal-hudilwala-health-human-right/.
This article was prepared for publication by Gabrielle Wast, Assistant Editor for JURIST Commentary. Please direct any questions or comments to her at commentary@jurist.org
