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

this paper does not mainly focus on the concept of the right to health. In an attempt to prevent further perpetuation of the existing conceptual confusion regarding the right to health, this paper embraces the simplified understanding of the right to health as “the right of every individual to access the necessary determinants of health, required to enjoy the highest attainable standard of physical and mental health.” 435 Understanding the right in this light is predicated on protecting and promoting human dignity, the central tenet of the right to health. The effective promotion of the right to health and access to healthcare is, however, subject to the availability of resources of subjective state governments, with resource constraints typically being the primary determinant that prevents the successful implementation of the duty of state governments to promote this right. 436 These resource constraints, mainly financial and human resource constraints are especially felt in developing nations, as individuals in less developed countries tend to have less access to healthcare services compared to their contemporaries in developed countries. This paper categorizes developing countries as countries whose governments typically fail to meet their obligations that promote and protect the right to health under international law, and sometimes under domestic constitutional law, by allocating little to no resources to healthcare and having deficient healthcare standards. These countries typically rely heavily on the private and international sectors for the provision of healthcare, as the governments in these countries usually fail to meet the minimum level of government involvement that is necessary to meet basic healthcare needs, causing the standard of healthcare of the populations of these nations to suffer. Although the problem of access to healthcare services is also reflected within countries (regardless of their stage of development), as poorer members of society tend to have less access to health services compared to their wealthier contemporaries. 437 Lack of financial resources can create barriers to accessing health services, as the causal relationship between access to health services and poverty runs contemporaneously, with limited access to healthcare worsening the health outcomes of individuals, resulting in loss of income and higher healthcare costs, both of which contribute to poverty and negatively affect the development of a nation. 438 Deprivation of access to healthcare creates poorer, undeveloped nations and puts societies at risk, as poverty leads to ill health, and ill health maintains poverty, which stagnates national development. Considering the preceding, this paper seeks to contribute to the discussion on the benefits and ethical and legal implications of adopting an emerging technological advancement like Artificial Intelligence (AI) to sustainably promote the right to health in developing countries. This paper avers that despite the potential of AI as a tool to healthcare is relevant to all States: every State has ratified at least one international human rights treaty that recognises the right to healthcare. 435 Chapman A, ‘The Foundations of a Human Right to Healthcare: Human Rights and Bioethics in Dialogue, Health and Human Rights’ ( HHR , 9 June 2015). 436 Article 2 ICESCR. 437 Peters DH et al, ‘Poverty and Access to Health Care in Developing Countries’ (2008) 1136 Annals of the New York Academy of Sciences 161. 438 Guo J and Li B, ‘The Application of Medical Artificial Intelligence Technology in Rural Areas of Developing Countries’ (2018) 2 Health Equity 174.

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