By Suliyat Omotolani Olapade, LL.M. International Human Rights Law, suliyatolapade0@gmail.com

In October, 2022, authors from over 260 academic health journals endorsed a Comment in The Lancet Global Health by African health journal editors calling for urgent action for Africa and the world on climate change. [1] The Comment repeated the moral and practical reasons for urgent action now, yet overlooked compelling legal arguments.

In discussions on international issues regarding what the high-income countries (HICs) owe Africa and vulnerable countries, moral reasons are often put forward as the justification for assistance while international legal obligations of assistance and cooperation (IAC) are usually ignored.

For example, the challenges in access to Covid-19 vaccines in the global South are caused partly by the failure of HICs to accept and act on their IAC obligations in international law.[2] However, instead of affirming the legal character of these obligations, the WHO Director-General and the UN Secretary-General have framed HIC (in)action solely as a moral failure.[3] Yet, cooperation and assistance are at the heart of our international legal order, including in global health - as enshrined in the 1945 Charter of the United Nations. There, Member States pledged to ‘take joint and separate action in cooperation with the Organization’ (art. 56) to achieve, inter alia, ‘…solutions of international economic, social, health, and related problems…’ (art. 55).[4]

In November 2022, the 27th Conference of the Parties (COP27) to the United Nations Framework Convention on Climate Change will be held in Sharm El Sheik, Egypt. On 18 October 2022, editors of major African health journals pleaded for rich world support for climate finance and justice for African and vulnerable countries. Basing the justification for this support on morality, they submitted that it is unjust for HICs not to support Africa in its fight against the climate crisis because Africa has only contributed 3% to the global cumulative emissions causing the crisis.[5] This line of thought – again – completely overlooks obligations of international assistance and cooperation.

The climate crisis, the right to health and obligations of international assistance and cooperation in international law

Almost every country has ratified one or more human rights treaties which affirm the right to health. The International Covenant on Economic, Social and Cultural Rights (ICESCR) recognizes the right of everyone to the enjoyment of the highest attainable standard of physical and mental health (Art 12(2)(c) (right to health)), stating also the importance of ‘the improvement of all aspects of environmental and industrial hygiene’ (Art 12 (1)(d)).

Undoubtedly, the right to health is threatened by environmental degradation and the climate crisis. Climate change has already caused severe harm in Africa ranging from increase in diseases across sub-Saharan Africa, mental and physical health problems, severe flooding, malnutrition, and destruction of the gross domestic product of the countries most vulnerable to climate shocks.[6]

The UN treaty committee which monitors the implementation of ICESCR (CESCR) has addressed the impact of environmental degradation, including the climate crisis, on the right to health. In its General Comment (GC) No. 14, the CESCR gave an authoritative interpretation to the right to health and the obligations arising therefrom. The GC notes that “the right to health embraces a wide range of socio-economic factors that promote conditions in which people can lead a healthy life, and extends to the underlying determinants of health, such as … a healthy environment.”[7] In 2007, the then UN Special Rapporteur on the right to health, Paul Hunt addressed the impact of climate change on the right to health.[8] In 2018, the CESCR released a statement on climate change and the ICESCR, emphasising that climate change constitutes a huge threat to the enjoyment of economic, social and cultural rights (ESCRs), including the right to health.[9]

Thus, the climate crisis has a massive impact on the enjoyment of the right to health guaranteed under ICESCR. HICs must increase the support for Africa and vulnerable countries in addressing past, present, and future impacts of climate change. The ICESCR provides that a State Party is legally bound to ‘…take steps, individually and through international assistance and cooperation, especially economic and technical, to the maximum of its available resources…’ (art. 2.1) to realize the rights in the Covenant (including, specifically the right to health).

States’ obligations under the right to health have mostly been interpreted as primarily owed to their own populations. More recently, commentators have suggested that ICESCR Article 2(1) also establishes ‘health-related extraterritorial obligations (ETOs) that exist alongside (and separate to) a state’s domestic human rights obligations.’[10] Obligations of IAC are also found in other international legal instruments including the UN Charter (Arts. 55 and 56), the Universal Declaration of Human Rights (Art. 22), and the International Health Regulations (Art. 44). An examination of the ICESCR travaux préparatoires reveals that States recognised when the ICESCR was drafted that low income countries (LICs) would require international assistance for the realisation of the rights under the Covenant.[11]

The CESCR under its treaty mandate has stressed the obligation of LICs to seek assistance in implementing ESCRs when required.[12] The CESCR has also provided guidance on IAC obligations on the realisation of the right to health in other countries. These obligations include preventing third parties from violating the right in other countries; facilitating access to essential health facilities, goods and services in other countries, depending on the availability of resources; and providing the necessary aid when required.[13]

The 2011 Maastricht Principles on Extraterritorial Obligations of States in the Area of Economic, Social and Cultural Rights also address the issue and note that States ‘…that are in a position to do so, must provide international assistance to contribute to the fulfilment of economic, social and cultural rights…’ (Principle 33.)[14]

It has been argued that ‘the human rights responsibility of international assistance and cooperation is a legally binding obligation on states parties to the ICESCR, as well as other relevant human rights treaties’,[15] and further that the ‘duty of assistance is the extraterritorial form of the requirement on states to fulfil the right to health domestically. It lies on states even where others, who are similarly capable, fail to help.’[16] However, the exact extent of these obligations remains unsettled. At a minimum, it has been proposed that, ‘(t)he international obligation also demands that states must actively consider measures by which they can individually and collectively assist other states fulfil the right to health... states may enjoy significant discretion with respect to the measures they adopt to satisfy their international obligation to secure the right to health but they are still required to justify whatever measures they adopt as being reasonable in the circumstances.’[17]

Conclusion

HICs must intensify support for Africa and vulnerable countries in addressing past, present, and future impacts of climate change based on their legal obligations of international assistance and cooperation arising under the UN Charter and human rights treaties, as well as from the Paris Agreement, moral reasons, and pragmatic concerns about knock-on impacts affecting all nations. Very regrettably, the failure of the African health journal editors to justify the call for climate finance on international legal obligations grounded in the UN Charter and multiple human rights treaties may also undermine such arguments in future health crises.

HICs may not wish to be reminded of their legal obligations regarding international assistance and cooperation. But it is absolutely necessary to do so in the call for climate justice ahead of COP27. This is so, not only because Africa and these vulnerable countries need to be compensated for loss and damage arising from a crisis they did not cause. It is also because there exist standing legal obligations of international assistance and cooperation to assist countries to realise the right to health. HICs may not be persuaded to give the required support based on moral arguments alone. Now is not the time to shrink from affirming that States have legal, as well as moral, obligations to render support. No country and no one in any country should be left behind. No one is safe until everyone is safe.

[1] Lukoye Atwoli et al ‘COP27 Climate Change Conference: urgent action needed for Africa and the world’ (2022) Lancet Glob Health https://doi.org/10.1016/S2214-109X(22)00457-0 accessed 29 October 2022.

[2] Suliyat Omotolani Olapade, ‘Call for Contributions ensuring equitable, affordable, timely and universal access for all countries to vaccines in response to the coronavirus disease (COVID-19) pandemic’, Groningen Centre for Health Law (October 10, 2022). Available at https://www.rug.nl/rechten/onderzoek/expertisecentra/gchl/blog/contributions-ensuring-equitable-affordable-timely-and-universal-access-for-all-countries-to-v

[3] WHO Director-General's opening remarks at the 148th session of the Executive Board available at https://www.who.int/director-general/speeches/detail/who-director-general-s-opening-remarks-at-148th-session-of-the-executive-board accessed 20 December 2021. UN Secretary-General Statements and Messages, https://press.un.org/en/2022/sgsm21137.doc.htm accessed 13 February 2022.

[4] David Patterson, ‘On the brink of a catastrophic moral failure’ – not the time to abandon international law’ (Human Rights Here, 15 April 2021) https://www.humanrightshere.com/author/David-Patterson accessed 20 February 2022.

[5] Lukoye Atwoli et al (n1).

[6] Ibid.

[7] Committee on Economic, Social and Cultural Rights, General Comment No. 14, The Right to the Highest Attainable Standard of Health, UN Doc. E/C.12/2000/4 (2000), para. 4.

[8] United Nations General Assembly, Report of the Special Rapporteur on the Right of Everyone to the Enjoyment of the Highest Attainable Standard of Physical and Mental Health, UN Doc. A/62/214 (2007).

[9] United Nations, Climate change and the International Covenant on Economic, Social and Cultural Rights: Statement of the Committee on Economic, Social and Cultural Rights (October 8, 2018). Available at https://digitallibrary.un.org/record/1651395?ln=en accessed 1 November 2022. See also David W. Patterson, ‘The Right to Health and the Climate Crisis: The Vital Role of Civic Space’ (2021) 23 Health and Human Rights Journal, 109-120. 111.

[10] Bogdandy and Villarreal, 110. See also Martin Buijsen, ‘The Meaning of “Justice” and “Solidarity” in Health Care’ in: Andre den Exter (ed.), International Health Law. Solidarity and Justice in Health Care (Apeldoorn: Maklu, 2008), 55; Alicia Ely Yamin, ‘Our Place in the World: Conceptualising Obligations Beyond Borders in Human Rights-Based Approaches to Health’, 12(1) Health and Human Rights Journal (2010) pp. 3-14; Judith Bueno de Mesquita, Paul Hunt and Rajat Khosla, 'The Human Rights Responsibility of International Assistance and Cooperation in Health’, in Mark Gibney and Sigrun Skogly (eds.), Universal Human Rights and Extraterritorial Obligations, University of Pennsylvania Press 2010, pp.104-129.

[11] See generally Philip Alston and Gerard Quinn, ‘The Nature and Scope of States Parties’ Obligations under the International Covenant on Economic, Social and Cultural Rights’ (1987 Hum Rts Q) 156. See also Ben Saul, ‘The International Covenant on Economic, Social and Cultural Rights, Travaux Préparatoires 1948-1966, (Vol 1, OUP 2016).

[12] CESCR, General Comment No. 3. ‘The Nature of States Parties Obligations’, (1990) UN Doc. E/1991/23, para. 13-14; General Comment No. 17. The right of everyone to benefit from the protection of the moral and material interests resulting from any scientific, literary or artistic production of which he or she is the author (2006) UN Doc. E/C.12/GC/17, para. 36; CESCR, The right to sexual and reproductive health (article 12 of the International Covenant on Economic, Social and Cultural Rights, General Comment No. 22’ (May 2016) UN Doc. E/C.12/GC/22, para. 50; CESCR, General Comment No. 25. Science and Economic, Social and Cultural Rights (2020) UN Doc. E/C.12/GC/25, para. 77.

[13] CESCR, ‘UN Committee on Economic, Social and Cultural Rights, ‘General Comment No 14: The Right to the Highest Attainable Standard of Health, UN Doc E/C/12/2000/4 (11 August 2000) [hereinafter CESCR General Comment No. 14]. para. 38.

[14] ETO Consortium, Maastricht Principles on Extraterritorial Obligations of States in the area of Economic, Social and Cultural Rights. Available at https://www.etoconsortium.org/en/main-navigation/library/maastricht-principles/ accessed 1 November 2022.

[15] Judith Bueno de Mesquita, Paul Hunt and Rajat Khosla, 'The Human Rights Responsibility of International Assistance and Cooperation in Health’, in Mark Gibney and Sigrun Skogly (eds.), Universal Human Rights and Extraterritorial Obligations, University of Pennsylvania Press 2010, pp.104-129, 128.

[16] See M E Salomon ‘Is there a Legal Duty to Address World Poverty’ (2012 European University Institute, Robert Schumann Centre for Advanced Studies) 3.

[17] John Tobin, ‘The Right to Health in International Law’, Oxford University Press 2011, at p 369-370.