The right to health is one of the first rights to suffer when a pandemic strikes. And this is the reason why some States have taken unprecedented public health measures to limit the spread of the virus.
The right to health includes access to medical care and to adequate treatment and medication for individuals affected by the virus, but also for all other people in need of medical attention. This requires, among other things, that medical staff benefit from protective measures as they carry out their work on the front lines of the pandemic.
The right to health must be enforced without discrimination. As such, no State can limit political opponents’ or religious minorities’ access to treatment for COVID-19. Sadly, the pandemic we are facing is exacerbating inequalities, and individuals living in vulnerable conditions are often the most at risk of being exposed to the virus.
The right to health is intrinsically linked to other human rights, such as the right to dignity, to life, to water, to food, and to housing. It is “an inclusive right extending not only to timely and appropriate health care but also to the underlying determinants of health, such as access to safe and potable water and adequate sanitation, an adequate supply of safe food, nutrition and housing, healthy occupational and environmental conditions, and access to health-related education and information, including on sexual and reproductive health” - Committee on Economic, Social and Cultural Rights of the United Nations, 2000, para. 11
The issue is particularly present in Central America. For example, nearly half of Guatemala’s residents do not have access to safe drinking water, hindering hand washing, and therefore increasing the risk of the spread of the virus. Similarly, Honduras is struggling to provide health workers with adequate protection, creating high risks of contamination.
The right to health is provided by a number of texts, including Article 12 of the International Covenant on Economic, Social and Cultural Rights (ICESCR).
1. The States Parties to the present Covenant recognize the right of everyone to the enjoyment of the highest attainable standard of physical and mental health
2. The steps to be taken by the States Parties to the present Covenant to achieve the full realization of this right shall include those necessary for:
a. The provision for the reduction of the stillbirth-rate and of infant mortality and for the healthy development of the child;
b. The improvement of all aspects of environmental and industrial hygiene;
c. The prevention, treatment and control of epidemic, endemic, occupational and other diseases;
d. The creation of conditions which would assure to all medical service and medical attention in the event of sickness.”
The United Nations Committee on Economic, Social and Cultural Rights defines State obligations with regard to the right to health as follows:
“The right to health, like all human rights, imposes three types or levels of obligations on States parties: the obligations to respect, protect and fulfil. In turn, the obligation to fulfil contains obligations to facilitate, provide and promote.23 The obligation to respect requires States to refrain from interfering directly or indirectly with the enjoyment of the right to health. The obligation to protect requires States to take measures that prevent third parties from interfering with article 12 guarantees. Finally, the obligation to fulfil requires States to adopt appropriate legislative, administrative, budgetary, judicial, promotional and other measures towards the full realization of the right to health.”
(CESCR General Comment No. 14 : The Right to the Highest Attainable Standard of Health (Art. 12 of the ICESCR), para. 33)
In response to the crisis, the Government of Honduras approved a special budget of several millions of dollars, aimed at deploying more staff in hospitals and acquiring more medical equipment, supplies, and personal protective equipment. The effort on the part of State was particularly appreciated and unexpected by our partners.
Unfortunately, however, public authorities do not seem to have honoured their commitment as of yet. The promised amounts have yet to be injected into the country’s health system, while conditions in hospitals remain inadequate to respond effectively to the crisis, and the security of medical personnel has not yet been addressed by the public health authority. Many health professionals have even stepped down from their positions because of a lack of protective measures against high risks of contamination.
To remedy this situation, our partners initiated an action on constitutional grounds (amparo remedy) with the aim of securing supplies of equipment and medication for hospitals, clinics, and health centres around the country. The purpose of this legal action is to establish health as a fundamental right and a public service, and to remind the State that it is responsible for implementing the necessary measures to ensure universal access to health care.
Even though the judicial system is currently paralyzed as a result of the declared state of emergency, the Supreme Court of Honduras recently ruled in favour of this legal action. This ruling is a significant step in the right direction in light of the current situation, especially given that the Supreme Court plays a fundamental role in monitoring the legality and illegality of executive measures.