The declaration of the Novel Coronavirus disease or COVID-19 as "pandemic" by the World Health Organisation, given its ubiquitous spread, by the Director-General Mr Tedros Adhanom Ghebreyesus in his address on March 11, 2020, was taken punctiliously by each country when he went on to record to state that the "Pandemic is not a word to use lightly or carelessly. It is a word that, if misused, can cause unreasonable fear, or unjustified acceptance that the fight is over, leading to unnecessary suffering and death." The Director-General also elaborated that repeated calls were made to countries suggesting to "turn the tide" against the virus by adopting the four-fold measures of preparation, detection, treatment and transmission followed by innovation.
This is the first pandemic caused by a #coronavirus. We cannot say this loudly enough, or clearly enough, or often enough: all countries can still change the course of this pandemic. This is the first pandemic that can be controlled.https://t.co/dIoa4jYAUN— Tedros Adhanom Ghebreyesus (@DrTedros) March 11, 2020
This is the first pandemic caused by a #coronavirus. We cannot say this loudly enough, or clearly enough, or often enough: all countries can still change the course of this pandemic. This is the first pandemic that can be controlled.https://t.co/dIoa4jYAUN
WHY LOCKDOWN IS IN QUESTION?
History has already witnessed the likes of such pandemics rhythmically whether it's Antonine Plague (165 AD) which originated in Roman Empire and could be taken to be a standalone reason for its fall or the Justinian Plague (541-542) which was brought in by the rats and was transmitted to humans via fleas as host. The Spanish flu (1918) considered as one of the deadliest pandemics spread overdue to non-availability of the vaccine and a lack of centralized intervention to ensure quarantine and isolation. The onset of these barbaric plagues not only wiped the sizeable population of the then regimes but also shook the governments who had to deal with witnessing its citizens dying out on a run of the mill basis without having any consolidated medical set up to combat the same. These antecedents of fatalistic plagues are akin to the situation of COVID-19 which we as a world witness today where we are still bending over backwards trying to create a vaccine to brick wall its spread. The declaration of COVID-19 as a pandemic is indicative of the gravity of the situation and as such brings to the forefront the questions regarding the right to health and the international obligations and duties as a world and a community we are required to observe and practice. Right to health has been recognized as one of the Human Rights and is not limited to the right to adequate healthcare.
RECOGNIZING RIGHT TO HEALTH AS THE MEANS
The right to health only found canonical recognition with the adoption of Constitution of World Health Organisation in 1946 which identified that "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." Similarly, UDHR also sanctioned the right to health as an essential fundamental human right by stating the same to be a measure of an adequate standard of living under Article 25. International Covenant on Economic, Social and Cultural Rights (ICESCR) in its Article 12 is the most important piece of legislation as it obligates State parties to recognize the right to health individually and jointly as the part of the international commune. The right to health has also been assimilated into several treaties such as International Convention on the Elimination of All Forms of Racial Discrimination of 1965, the Convention on the Elimination of All Forms of Discrimination against Women of 1979, and the Convention on the Rights of the Child of 1989. Every so often the international organizations have taken to organize consortiums and country meets to stage the issue. However, as the scholars have observed that most of the State actors do not pay heed to international health concerns in the context of their domestic policies.
The Committee on Economic, Social and Cultural Rights (CESCR) General Comment no. 14(2000) defines the right to health which includes core components like availability, accessibility, acceptability and quality and is attainable through "numerous, complementary approaches, such as the formulation of health policies, or the implementation of health programmes developed by the World Health Organization (WHO), or the adoption of specific legal instruments". It has also been elaborated that the right to health includes legally enforceable components. With that being said it becomes sine qua non for every State and its government to ensure that the citizens are not exposed to any sort of bearings which might put their health in peril. It is evident that ensuring the right to health is a duty cast upon the State which it fulfils by providing for safe environmental conditions, accessibility to health care and by reinforcing peace with the international community through its policies.
As I write this piece, several countries have imposed lockdown to contain the transmission of the virus. Until we come up with a befitting vaccine to counter the virus's spread the only possible solution is the aggressive testing of the suspected carriers followed by a lockdown. However, after China, Europe and New York became omphalos for COVID-19 cases, Southeast Asia is slated to be next in line with the cases going unchecked, more precisely unreported. Countries like Myanmar, Laos, Brunei have not till date executed a health plan or a complete lockdown and the countries like Pakistan and Bangladesh, where there is a daily surge in the COVID-19 cases, governments are reluctant to take any action towards lockdown citing consequent economic slowdown as the reason.
DOES RIGHT TO HEALTH FALL WITHIN THE CONTOURS OF INTERNATIONAL OBLIGATION?
In the mise-en-scène of afore-stated situations could it be possible for international organizations like WHO and United Nations to force the States to ensure lockdown in their countries to stop community-based transmission of COVID-19 as an international obligation owed to the world and in turn effectuating the spirit of right to health? With what ascendancy the ineffective pursuance of such international obligations can be checked and impelled?
The CESCR General Comment no.3, Article 56 of United Nations Charter and Alma-Ata Declaration on primary health care are of particular importance as they make it categorically incumbent upon the State to fully realize right to health as an international obligation. By the same token, the International Convention on Economic, Social and Cultural Rights in its Article 2.1 stipulates for each State to ensure the realization of the rights through "maximum of its available resources". Apart from the specific obligations States also have individual and joint obligations under the UN Charter backed by resolutions of the UN General Assembly and the World Health Assembly.
When the question of the right to health arises in international context certain obligations have been recognized by numerous courts worldwide to be requiring adherence known as erga omnes and jus cogens. The norm erga omnes has been avowed in the case famously known as Barcelona Traction. The relevant excerpt of the judgment is as follows:
"Such obligations derive, for example, in contemporary international law, from the outlawing of acts of aggression, and of genocide, as also from the principles and rules concerning the basic rights of the human person, including protection from slavery and racial discrimination. Some of the corresponding rights of protection have entered into the body of general international law (Reservations to the Convention on the Prevention and Punishment of the Crime of Genocide, Advisory Opinion, I.C.J. Reports 1951, p. 23); others are conferred by international instruments of a universal or quasi-universal character."
In Argentina, the Supreme Court placed its credence on the international agreements such as ICESCR and directed the State Health Ministry to continue funding the child's treatment for cancer which the Ministry had initially only voluntarily taken up. The Supreme Court of Argentina on being faced with the question of giving up treatment funding by Health Ministry answered negatively and held "As the court notes, Article 2 Section 1 of that same treaty states that parties are obligated to use "the maximum of [their] available resources" to fully implement the rights guaranteed in the ICESCR and that the federal government is responsible for implementing the agreement."
The august case of the South African Constitutional Court Minister of Health v. Treatment Action Campaign celebrated the idea of the right to health but within a limited context.
Another frame of reference for recognition of the right to health as an international obligation is by way of jus cogens principles which are considered to be peremptory human rights. International consensus gives way to the jus cogens principles and the state cannot neglect their normative impact as they provide a foundation to the very structure of the international law and its implementation. In precedents like Prosecutor v. Anto Furundzija (1998) and ECHR, Jorgic v. Germany(2007) both norms erga omnes and jus cogens have been identified as being operative in jurisdictions universally for the enforcement of human rights.
It is in all congruity to state that there exists very much of an enforceable international obligation on the part of individual State parties to help in deterring the community transmission of the pandemic. Furthermore, by not resorting to lockdown many countries will endanger the health of the population of other states infamously perceived as "transboundary harm". Obligation to observe the right to healthy environment finds its voice in the text adopted by the International Law Commission at its fifty-third session, in 2001 (A/56/10) which states that though the concept finds its origin in the context of carrying out of hazardous activities the underlying principle behind preventing transboundary harm is omission and prevention of such activities which would put other State's health and environment at peril.
States cannot guarantee the highest attainable standard of health to every citizen of the world at large without consideration of its domestic resource constraints. However, the situation today asks us of making an exception looking into the mass transmission that the COVID-19 can potentially create and looking into the limited accessible medical resources available at our dispense, lockdown seems like the only solution, right away.
Correspondingly, there is no denying the fact that the State parties owe it to the international community (civitas maxima) at large to lockdown their country if it ends up becoming the hotspot for the spread of the pandemic but the right to health as an international obligation continues to be lex ferenda i.e., soft law with no precedential backings. Even to buttress the argument that right to health is a human right and an international obligation is required to be observed by the State parties in light of norms erga omnes and jus cogens, the right to health continues to be blocked by the ubiquitous doctrine of state sovereignty. Moreover, international organizations also do not have a substantial mechanism in place to force the State parties to lockdown while citing the same to be their international obligation.
To such a degree, the questions posed at the beginning of this segment stand answered negatively as the subject matter of right to health is not augmented enough to be enforced as an international obligation thus not providing enough latitude to the international organizations to ask countries to lockdown in the wake of the pandemic.
THE WAY FORWARD: USE OF ARTIFICIAL INTELLIGENCE IN HEALTHCARE
The moot point of obligating the countries to lockdown in view of the international obligation catalyses the idea of a wanton need to explore as to what can be brought forth which can make the individual States inescapably interested in carrying out such devoir.
One such solution is offered by the introduction of Artificial Intelligence (AI) in the sector of healthcare which has already made great strides. An overture like this will not only ensure that the world at large has access to vast sets of data which could save millions of lives by tracking, identifying and predicting patterns in the development of abeyant diseases but would also open doors enabling doctors/medical/healthcare professionals to offer distinctive solutions to similarly ascribable diseases taking lessons from medical histories even when the patients are located in two different countries. IBM developed data analytics called Watson is one such example of the usage of AI in the healthcare sector and has been delivering enormous results.
The idea is to set up an internationally monitored AI network invested and built upon by the individual medical professionals and healthcare experts who will put in the medical research and data regularly and let AI do the rest of the tasks. The propinquity might be frowned upon by the State parties as the same will bring decentralization of the decision-making process in the health-related policy making, however, such retractions can be subsided by understanding that the accessible universal database and the AI pattern-based predictions, in the long run, would save us from the massive outbreaks and pandemics like COVID-19. The challenges like government priority setting or exclusion of high-end expensive drugs from health packages can also be brought down with the introduction of Artificial Intelligence into healthcare as the same would predict the likely health outcomes while also indicating the countries where such solutions are indigenously developed.
Scholars have argued that without having a solid data protection law in place AI cannot be properly actualized more so when a cohesive system at the international stage is being talked into existence. However, there are legislations and regulations like OECD Guidelines on the Protection of Privacy and Transborder Flows of Personal Data, 1980, European Directive on Data Protection, 1995, UK Data Protection Act, 2018 which can be taken as an exemplary basis for the AI-related domestic legislation drafting.
Views Are Personal Only
Author is a practicing Lawyer at Supreme Court of India