New Technologies in International Law / Tymofeyeva, Crhák et al.

4.2 B ridging the G ap : A L egal A nalysis

of A rtificial I ntelligence ’ s (AI) I mpact on P romoting the R ight to H ealth in D eveloping C ountries

By Oshokha Caleb Ilegogie (Charles University)

Introduction The right to health has been aptly described as a right that one would need help finding a more controversial or nebulous human right. 431 This right is characterized as a ubiquitous right whose actual meaning appears elusive despite its meaning being commonly assumed to be understood by all, mainly due to its status as a recognized human right under international law. 432 This misunderstanding of what the right to health entails can be attributed to conceptual confusion, as well as a lack of effective implementation of the right, which provides a source of significant problems for policymakers seeking to deploy the right to health as a strategy to influence health outcomes and implement their obligations under international law. The lack of a clear universal definition of the right is also confusing. It creates structural problems within international law, placing significant constraints on understanding what the right means, even for those working in the health and human rights field. 433 The right to health stems primarily, although not exclusively, from Article 12 of the International Covenant on Economic, Social, and Cultural Rights (ICESCR) and requires State governments to recognize “the right of everyone to the highest attainable standard of physical and mental health.” 434 However, to avoid going into further detail, 431 Ruger JP, ‘Toward a Theory of a Right to Health: Capability and Incompletely Theorized Agreements’ (2006) 18(2) Yale J Law Humanit 273, p. 3. 432 Ibid. 433 Lawrence G, ‘Global Health Law Governance’ (2008) 22 Emory International Law Review 35, pp. 35–36. 434 The right to healthcare was first articulated in the WHO Constitution (1946) which states that: „the enjoyment of the highest attainable standard of health is one of the fundamental rights of every human being…”. The preamble of the Constitution defines health as: “A state of complete physical, mental and social well-being and not merely the absence of disease or infirmity”. The 1948 Universal declaration of Human Rights mentioned health as part of the right to an adequate standard of living (article 25). It was again recognised as a human right in 1966 in the International Covenant on Economic, Social and Cultural Rights, Article 12 which states: “1. The States Parties to the present Covenant recognise 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 realisation 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.” This right can also be found in regional human rights instruments, which include: American Declaration on the Rights and Duties of Man (art. 33), European Social Charter (art. 11) and African Charter on Human and Peoples’ Rights (art. 16). The right to

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