Written by Sakshi Chandna
Fifth Year, BA. LLB. Hons., O.P. Jindal Global University, India
Disclaimer: Please note that the views expressed below represent the opinions of the article's author. The following does not necessarily represent the views of Law & Order.
In the aftermath of World War II, states  (Appadorai, 2001) came together under the United Nations to develop the concept of human rights in the realm of international law. Health and human rights have always been interdependent on each other,.The right to health is an internationally agreed standard of human rights and is “indivisible” from the realm of human rights (World Health Organization: WHO, 2017). But this interdependency is most often highlighted only during critical times. These situations involve torture, imprisonment under inhumane conditions, summary execution and disappearances (Mann et al., 1994). It is essential to recognize the health-related impacts of human rights violations that go beyond these issues. Using human rights violations as an entry point for the recognition of health problems can help acknowledge the burdens placed on the physical, mental, and social well-being of people and thereby, increase awareness of the promotion and protection of human rights (Mann et al., 1994, p. 6). By conceptualizing health injustices as human rights violations, universal standards have been developed to ensure health-related accountability for rights-based health policy (Meier, Gostin, 2019).
Covenants like International Covenant on Civil and Political Rights (ICCPR) and International Covenant on Economic, Social and Cultural Rights (ICESCR) are legally binding on states that have ratified them and are party to them. States are then bound to accept responsibilities like submitting period reports on their compliance with the substantive provisions of the Covenants (Mann et al., 1994). However, the state does not always act as an upholder of human rights when it comes to the right to health. For instance, data collection is not always accurate the selection of which issues to assess occur in a societal vacuum (Mann et al., 1994). More often than not, states fail to recognise the health issues that affect the marginalized groups. Beyond state actors, there are several non-state actors such as non-governmental organizations, media houses, and private individuals that help in the promotion of health-related issues (Meier, Gostin, 2019). However, during difficult situations such as pandemics, state actors use their powers excessively and sometimes unfairly. In Jew Ho v. Williamson, in the name of well-being, public health officials confined those belonging to marginalized populations because of their own prejudice.
The reason for this is that private rights are considered inferior to public interest (Windwick, 1969, p. 929).
By being considered subordinate to public interest, individuals are bound to conform to the excessive powers used by state actors to ensure the “well-being” of the public. With their power to authorize quarantine, the court in Jacobson v Massachusetts held up the “rule of reasonableness”, stating that detention must be justified as a “public necessity” and states are not allowed to act arbitrarily. It becomes essential for the government to earn the trust of its people by acting fairly, transparently, and effectively. Non-state actors use the language and orientation of human rights to advance human health. They play an important role in remote areas by providing health services, education, and financial support. They are the main advocates for improving the structural enforcement of human rights at local/national levels to achieve better health (Gable, 2007).
To ensure that health and human rights co-exist, the WHO enacted the Universal Health Coverage (UHC). UHC is a unifying rights-based platform in the field of global health governance (Meier, Gostin, 2019). However, UHC has lacked in efforts to address its own scope and content and has not recognized many issues like women’s and children’s health (Meier, Gostin, 2019). Further, while UHC aims to cover “everyone” as a means to access affordable health systems without the pressure of financial ruin, it is still unclear regarding non-nationals  (Lougarre, 2016). Since UHC is not legally binding on states, the protection of non-nationals’ is left to the goodwill of states (Lougarre, 2016). For instance, Brazil is known for its progressive health policies such as commitment to providing universal access to HIV medicines (Kapczynski, 2019). It is important to note that if states do not take active measures to ensure that non-nationals have access to affordable healthcare, the UHC will fail. In most states, the right to health is only provided to non-nationals if the state resources are not under “undue strain” (Lougarre, 2016). However, in Medecins du Monde International v France, the committee held that states have a “positive obligation in terms of access to healthcare for migrants, whatever their residence status”. It is also stated that states could not use the “economic crisis” as a reason to deny healthcare. For instance, according to the Census report of 2011, there are around 40 million migrant workers in India. The shutdown of businesses because of COVID-19 led to lack of food and basic amenities, loss of employment, and lack of social support for these people. This led to deaths due to starvation, suicides, accidents, and exhaustion in large numbers. According to SaveLife Foundation, 60% migrants died in road crashes on their commute back home during the third phase of the lockdown. Much like the case of Medecins du Monde International v France, internal migrants in India have faced obstacles in accessing healthcare due to their poverty (Akinola et al., 2014). Health is a basic human right. Good healthcare services should be seen as a fulfilment of human rights (Akinola et al., 2014). The state is obligated to ensure that the most vulnerable groups can survive during the pandemic. They are often denied adequate healthcare, nutrition and housing, a situation which is worse now. The Supreme Court directed the Home Ministry to equip migrant workers with adequate food, accommodation and counselling.
Even though the main focus of human rights law is the relationship between individuals and states, there has been an increase in awareness by other institutions as well (Mann et al., 1994). Today, human rights include both promotion and protection of health (Mann et al., 1994). The UN human rights system plays a crucial role in assuring the implementation of human rights. The right to health is enshrined in numerous legally binding instruments such as the ICESCR. General Comment No. 14 establishes that the states have an obligation to respect, protect and fulfil each aspect of the right to health. The Office of the High Commissioner for Human Rights (OHCHR) is continuously trying to move towards an approach to human rights that includes health professionals, promoting the understanding of the right to health, supporting the development of deep expertise on the right to health, and enhancing appreciation for the right to health across all the UN agencies (Meier, Gostin, 2019). The Universal Periodic Review (UPR) is an accountability measure enacted to make states submit a period report regarding their human rights. Regional instruments like the African Charter on Human and Peoples’ Rights (ACHPR) enshrine the human right to health, based on Article 12 of ICESCR. However, the African Human Rights System lacks any international public authority, making its final reports not mandatory (Pascale, 2016). Most African states fail to fulfil their obligation of human rights to health for multiple reasons. First, there is a lack of resources and health services. Second, investments made by international donors for the development of African welfare are not optimally utilized by the African governments. This is due to a lack of expertise and a high rate of corruption (Pascale, 2016).
There was a heightened increase in the issue of access to medicines with the formation of The Agreement on Trade-Related Aspects of Intellectual Property Rights (TRIPS) which required all countries to introduce IP protections, including product patents on medicines (Kapczynski, 2019). The political economy of medicines is dominated by powerful pharmaceutical interests (Kapczynski, 2019). This posed an issue in the global arena because these medicines were only available in high-income countries, and therefore, left out of reach for everyone in the rest of the world.
Further, with the rapid spread of COVID-19, governments have been competing with each other to see who is able to find a solution first.
Srividhya Ragavan notes that it is always policies and not poverty that erect barriers to trade in the form of denied access to health. High-income countries have resources to subsidize R&D to produce a vaccine but there is no coordination between governments to ensure that these vaccines will benefit the middle and low-income countries.
With the whole world facing a socio-economic crisis, it is disheartening to see vulnerable groups suffer the most. Besides having a lack of food and shelter, these groups are also at high risk of diseases and not having access to medicines and adequate healthcare. Threats to global health continue to grow as the world is becoming increasingly interconnected (Gable, 2007). It is necessary to protect and improve global health and to recognize the fact that human rights play an integral role in global health governance.
 They are: (i) a definite territory, (ii) population, (iii) a Government.
 The situation of individuals finding themselves in a country other than their country of
birth, whom this article refers to as “non-nationals”
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