The Role of the Right to Health in a “Hidden” Pandemic: Antimicrobial Resistance

Last week, UK health officials declared that a “hidden pandemic” of antibiotic-resistant infections could soon threaten human health and lives. More cold symptoms are expected this winter, due to an increase in social mixing, but the UK Health Security Agency warn against premature and inadequate use of antibiotics. However, this menace is not new and not specific to the UK. In fact, the World Health Organization recognises antimicrobial resistance (including antibiotic resistance) as one of the top 10 global health threats facing humanity and organises a World Antimicrobial Awareness Week in November every year. Antibiotic resistance, like its name suggests, is the phenomenon describing the change that bacteria develop in order to resist the efficacy of antibiotics designed to kill them. As noted by the WHO, this phenomenon and the decreased effectiveness of antibiotics that it entails, jeopardise our ability to treat common infectious diseases, such as pneumonia, tuberculosis, blood poisoning, gonorrhoea, and foodborne diseases. This can lead, in turn, to prolonged hospital stays and increased mortality. This phenomenon is particularly worrying for people with weaker immune systems, such as persons living with HIV or pregnant women, as well as very young children and elderly persons since they are more often at risk of developing complications than the rest of the population. This phenomenon is also particularly worrying for low- and middle-income countries (LMICs), since they experience higher burdens of bacterial infections, unequal access to effective antibiotics, and inconsistent regulation of inappropriate use of antibiotics. Therefore, scientists across the globe are calling for better use of antibiotics, in order to protect populations’ health and conserve the efficacy of antibiotics in the longer term.

But this pandemic in the waiting is not ‘hidden’. In fact, it has been discussed by global health scholars and practitioners for decades, and its effects have been reported worldwide, with 700,000 deaths a year caused by antimicrobial resistance. Furthermore, antibiotic resistance directly threatens a number of well-known human rights: individuals’ right to life, right to health, and their right to be free from discrimination; and it triggers tragic health inequities across the globe. Therefore, it should have caught the attention of human rights lawyers a long time ago. Few scholars have discussed the role of international law in the face of antimicrobial resistance (e.g., Hoffman, Røttingen and Frenk; Hoffman and Ottersen; Daulaire, Bang, Tomson, Kalyango and Cars; Hoffman and Behdinan). Fewer have focused on the role of international human rights law and in particular the right to health, despite its capacity to bridge international human rights law and global health law, paving the way for a powerful tool in this major global health threat.

Looking more closely into this reveals that no research so far analyses how human rights law should respond to the unique dilemma raised by States’ obligations to realise the right to health for all in the face of antibiotic resistance. The questions it raises, nonetheless, are paramount to understanding whether and how international human rights law can adapt to contemporary and complex crises, especially following the COVID-19 pandemic. How can States comply with a human right which requires that: 1) they guarantee ‘the highest attainable standard of (…) health’ for all (ICESCR, Article 12), including by ensuring access to essential drugs preventing deaths and suffering such as antibiotics (UN CESCR General Comment No. 14, para. 43(d)); whilst 2) restricting the use of these unique essential medicines to prevent their future ineffectiveness? The silence of international human rights law on this issue and the fact that key human rights treaties pull States parties in different directions, affects States’ ability to understand and to comply with the right to health correctly in one of the greatest health threats of our time.

The challenge stems from the fact that antibiotic resistance is not one problem; it is really four large, interrelated problems, which need to be addressed simultaneously and action on one aspect of the problem will directly affect how action needs to take place on another aspect. First, we need to increase access for millions of people without antibacterials. Millions of people, every year, suffer and die from bacterial infections, such as pneumonia – the majority of which are avoidable. Second, we need to steward existing antibiotics in order to conserve their effectiveness for as long as possible for as many people as possible – especially antibiotics of last resort, which should be reserved for only the most serious infections. Third, we need to innovate new diagnostic and antibiotic therapies to replace drugs that are no longer effective at fighting infections, which will require new ways of approaching the financing and incentivizing of drug development, with its associated intellectual property rights implications. Fourth, we need to prevent infections and their spread in the first place, especially drug-resistant infections. This means developing vaccines, strengthening universal health care, enhancing infection control and prevention methods, expanding water, sanitation, and hygiene (WaSH), and addressing the social determinants of infection (e.g., poverty, housing, over-crowding, malnutrition, contaminated food, limited educational opportunity, war/conflict).

The right to health is a social right, which means it is often understood through the concept of progressive realisation: States are required to realise the right to health ‘progressively’ and to the to ‘the maximum of (their) available resources’ (ICESCR, Article 2(1)). In the context of antibiotic resistance, such requirements would seemingly translate into a general obligation to take measures ‘as expeditiously and effectively as possible’ to regulate the use of antibiotics (see UN CESCR General Comment No. 14, para. 31). Furthermore, States would be obliged to take these measures both at a national and international level, by reference to their obligation to provide ‘international assistance and cooperation’ (ICESCR, Article 2(1)). In this context, States’ obligation to provide international assistance and cooperation would place a higher burden on States with higher income to support individuals in LMICs. However, States’ obligation to progressively regulate the use of antibiotics in order to prevent antibiotic resistance, would necessarily depends on resources – a concept that has not been defined with sufficient clarity in right to health scholarship. Could LMICs be ‘excused’ from failures to regulate the use of antibiotics (especially when such regulation may come at low costs)?

Beyond the issue of resources is even that of ‘permissible limitations’ under the right to health (ICESCR, Article 4): can States refuse to grant universal access to antibiotics and allow preventable human deaths and suffering in the short-term, to prevent further deaths and suffering caused by ‘superbugs’ in the longer term? Human rights law is dedicated to the protection of human dignity and equality and thus, could never be used to authorise human deaths or ill-treatment, which are both absolute and non-derogable rights, as argued by Mavronicola. However, this discipline does prioritise certain values over others; and starts recognising intergenerational rights), including in the context of the right to health. What should be prioritised: the lives of vulnerable individuals now or later? Or is there a way to protect both? This brings us to our next point: States’ minimum core obligations to realise this right (UN CESCR General Comment No. 14, para. 43 and 44).

States’ obligation to progressively realise the right to health must be appreciated in light of immediate obligations (where progressive realisation is – in theory – not applicable) and in light of elements that ought to be prioritised over others: minimum core obligations. Indeed, the UN Committee on Economic, Social and Cultural Rights urges States to realise the right to health ‘immediately’ when it comes to the principle of non-discrimination, or as a matter of ‘priority’ when it comes to the provision of essential medicines (see UN CESCR General Comment No. 14, para. 30 and 43(d)). In our context, these requirements would translate into States’ obligation to prioritise access to antibiotics, as well as States’ immediate obligation to protect individuals with weaker immune systems, especially in LMICs. However, the vulnerability of these individuals creates a twofold obligation to not discriminate. On one hand, persons with weaker immune systems (especially those living in LMICs) must be protected against bacterial infections (i.e., States must implement preventive measures to protect these individuals and states must guarantee these individuals can access antibiotics when needed). On the other hand, this vulnerable group must be protected against drug-resistant infections since, without any efficient antibiotics, they are more at risk of mortality and morbidity (i.e., States must regulate the use of antibiotics at both a national and international levels). The two aspects of the principle of non-discrimination in this context do not necessarily have to clash with one another, but they do require coherent and careful balancing.

To conclude, analysing the role of the right to health in the face of antimicrobial resistance, including antibiotic resistance, highlights how complex this right is, and presents a unique test case allowing human rights scholars to identify, weigh, and balance related competing claims under this right. The COVID-19 pandemic has already triggered these discussions, but it must now pave the way for more to come.