Addressing health inequalities in times of COVID-19 Minorities and indigenous peoples between deeply rooted and new, emerging forms of discrimination

In numerous countries, the spread of the COVID-19 epidemic has affected ethnic, racial and religious minorities most severely, along with indigenous peoples. On one hand, the pandemic is laying bare the presence of deeply rooted patterns of discrimination in access to health; on the other hand, for some states and non-state actors, it also represents a useful opportunity to persecute particular ethnic and religious minorities through additional forms of discrimination


Introduction
From the early stages of the spread of the COVID-19 epidemic in different parts of the world, the disaggregated data collected in various countries have shown that ethnic and religious minorities and indigenous peoples have been at higher risk of contracting and dying from the virus. The more severe impact of the virus on these population groups can be explained by several factors, but it is indisputable that the current pandemic has contributed to further deepening the conditions of discrimination and vulnerability faced by those groups. In general, the health impact of COVID-19 reflects deeply rooted patterns of discrimination in access to health services that, in turn, reflect the presence of a broader system age" and the fundamental drivers of these conditions. 4 These factors have been defined as "the cause of the causes of health disparities" 5 since they create the conditions for the origin of health disparities and contribute to creating a vicious cycle: the poorest, most vulnerable and most marginalized segments of the population have no access to health services because they are poor and marginalized, and their condition of marginalization and poverty is a primary source of illness and disease. 6 Although the interrelationship between poverty, marginalization and the burden of disease seems obvious, it is actually more complex than it appears.
What seems uncontroversial is that health generally improves as social position increases. In this respect, the interaction between SDH and the above-mentioned barriers to health plays a central role in creating and consolidating disparities. A number of social and economic factors such as education, employment opportunities, income, and possessions impact each individual's access to various material resources (such as proper housing, food, and sanitation and a healthy workplace) on which health depends. These factors interact with barriers to health such as the geographical location or absence of health facilities and structures, or the incompatibility of health services with the prospective recipient's cultural and religious background, to make healthcare unaffordable, unacceptable or unavailable for some segments of the national population.
Access to health is also basically affected by the functioning of national health systems. In numerous countries where access to health services -most significantly, hospitalization -is determined by the ability to pay out of pocket, the ability to receive adequate treatment in case of illness is almost nil for those who cannot afford the cost. A pernicious combination of environmental and personal factors can therefore substantially impair access to treatment, hospitalization and basic health services which could be essential for health or even survival. Clearly, the underlying problem is the unequal distribution of social and economic factors that make healthcare inaccessible and unavailable. 7 In this respect, policy choices and the government strategies can make a difference. Usually, the combination of SDH and barriers to health, and the resulting discriminatory practices, are the direct consequence of policy choices, economic programmes and bad governance. In 2008, the WHO Commission on SDH pointed out that "where systematic differences in health are judged to be avoidable by reasonable action, they are, quite simply, unfair." 8 The Commission also stressed that the unequal distribution of health-damaging experiences "is not in any sense a natural phenomenon but is a result of a toxic combination of poor social policies and programmes, unfair economic arrangements and bad politics." 9 In the Commission's view, action on SDH is therefore essential "to create inclusive, equitable, economically productive and healthy societies." 10 The dimensions of inequality differ from one country to another. However, although in general the presence of more disadvantaged segments of the national population and the consequential problem of health inequities are pervasive issues, the problem takes on a further dimension in countries characterized by the presence of ethnic, racial and religious minorities and indigenous peoples, regardless of the level of that country's development. 11 Very often, even in developed countries, the condition of belonging to ethnic or racial groups or indigenous peoples and the condition of economic and social marginalization coincide; 12 ethnic and minority groups are indeed disproportionately affected by socio-economic deprivation, with the result that these groups are more vulnerable and exposed to illness and mortality.
Racial and ethnic health disparities can therefore be the consequence of a complex combination of low socio-economic status, less healthy lifestyles and poor access to care. Even in countries where access to care is guaranteed to the vast majority of the population, recourse to healthcare is prevented by other factors, such as lack of documentation of residential status. The lack of access to healthcare could be a consequence of the fact that some segments of the population are invisible; for example, the lack of documents attesting to citizenship or permanent residence excludes numerous people, particularly those belonging to ethnic and religious minorities as well as irregular migrants, from all sorts of state-subsidized social benefits, including healthcare. This problem, in different ways, is shared by various developed nations, including the United States, Canada, Australia and European countries. 13 Even in Europe, although most health systems cover nearly the whole population, the problem of health disparities remains challenging. The European Union has long been focusing on the problem of unequal access to health services and the need to outline specific policies to handle this issue and meet the needs of vulnerable groups. 14 3.
The spread of the COVID-19 pandemic, minorities and indigenous

peoples: a spotlight on inequality
The problem of health disparities is not confined to special circumstances or phases. The combination of SHD and barriers to health plays a primary role in shaping these disparities under normal conditions; these factors become even more important in times of emergency. In such situations, it can indeed produce extremely pernicious effects. In this respect, the ongoing pandemic is not only putting national health systems under exceptional pressure but is also laying bare their shortcomings, revealing the existence of deeply rooted patterns of discrimination, and exacerbating existing inequalities in health and living con-

European countries, 25 and of Rohingya and other ethnic and religious minorities in
Myanmar. 26 Furthermore, since the outbreak of the epidemic, an increase in scapegoating, labelling, stigmatization, and racist speech against minorities or those who are regarded as belonging to lower castes has been reported. This was the case with the Shi'a minority in Pakistan, 27 the Muslim minority in India and Sri Lanka 28 and the Roma communities in several Euro pean countries. 29 They have been scapegoated and blamed for spreading the virus, both by the general population and by public officials.
This situation raises serious concerns about the possibility of effectively protecting vulnerable groups from the pandemic and ensuring that they enjoy the right of access to healthcare and necessary health treatments. Most importantly, it is clearly in contrast with the provisions of international law on human rights and, more specifically, with general provisions that prohibit discrimination.

The right to health and the prohibition of discrimination in international human rights law
In the debate on the prohibition of discrimination in the general system of the international law on human rights, a central point is represented by the nature and scope of the principle of non-discrimination. This principle can be indeed considered as a sort of foundational norm that inspires the entire system of international human rights law and is, as such, incorporated in the most relevant international instruments adopted both at universal and regional levels. of the right to health, some elements deserve to be highlighted, as reflected in General Comment number 14 on the content and scope of Article 12, adopted in 2000 by the CESCR. 31 The CESCR has made clear, first, that Article 12 imposes specific obligations upon the states in terms of availability and access to healthcare facilities, goods and services, and second that the right to health must be ensured without discrimination of any kind, such as by race, sex or religion.
The state's obligations are positive in nature, and the state is called upon to ensure the progressive realization of this right. Such progressive realization implies that an obligation to adopt the necessary measures to ensure this right, taking into account each state's own level of development and available resources. Clearly, this means that the most appropriate measures to implement the right to health will vary significantly across countries. In deciding on the adoption of the necessary or the most appropriate measures, and therefore in how its national health system must be organized, each state has a considerable margin of discretion. But over and above the unavoidable differences and the discretion of each state in implementing the right to health, some basic obligations are common to all states.
The first such obligation pertains to the progressive nature of the right to health, which cannot be interpreted as an alibi for a state that does not wish to fulfil its obligation. Article 12 obliges each state party to take the necessary steps to the maximum of its available resources; it thereby follows that a state which is unwilling to use the maximum of its available resources for the realization of the right to health is violating its obligations under Article 12. The second fundamental obligation pertains to the basic principle of non-discrimination: Article 12, which imposes the obligation to recognize the right to health without any distinction or discrimination, also indicates that states must ensure this right for the most vulnerable and marginalized segments of the population. 32 In this respect, the CESCR has pointed out, "States are under the obligation to respect the right to health by, inter alia, refraining from denying or limiting equal access for all persons, including prisoners or detainees, minorities, asylum-seekers and illegal immigrants, to preventive, curative and palliative health services." 33 Analogously, the misallocation of public resources which results in the denial of the right to health for individuals or groups -particularly those who are vulnerable or marginalized -and the failure to take measures to reduce the inequitable dis-31 CESCR, General Comment No. 14: The Right to the Highest Attainable Standard of Health (Art. 12), E/C.12/2000/4. 32 A similar approach to the issue of the recognition of the right to health under equal conditions characterizes the provisions of the UN Convention against Racial Discrimination. Article 5 of this convention declares that states have the obligation to guarantee without distinction the right of everyone to the equality before the law in the enjoyment of a series of fundamental rights including the right to health. 33 CESCR, General Comment No. 14, cit., at para 34. tribution of health facilities, goods and services represent clear violations of the obligations to fulfil the right to health.
The principle of non-discrimination also inspires the system of the International Health Regulations, which is the system of international rules laid down by the WHO in 2005. These regulations provide for member states' obligations in case of an outbreak of a pandemic and more specifically of a "public health emergency of international concern" (PHEIC). Over and above the duty to report the outbreak of epidemics that could spread across a state's national border and the obligation to cooperate with other states in handling such events, states are also obligated to adopt specific measures aimed at curtailing an epidemic and to protect and safeguard the health of the population. These health measures may include quarantine, screening of and/or restrictions on persons from affected areas, medical treatment, vaccination and prophylaxis. These provisions impose a series of obligations that seem clearly interrelated with those envisaged by Article 12 of the Covenant. In its general comment, the CESCR explains that this rule imposes upon states some "core obligations," among which the Committee has included the obligations to provide immunization against major infectious diseases occurring in the community; to take measures to prevent, treat and control epidemic and endemic diseases; and to provide education and access to information concerning the main health problems in the community. As pointed out above, the system of International Health Regulations is grounded on the basic principle of non-discrimination; Article 42 provides that "health measures taken pursuant to those regulations shall be initiated and completed without delay and applied in a transparent and non-discriminatory manner." It follows that the adoption of measures aimed at curtailing a public health emergency in a discriminatory manner -that is to say, in a manner which does not ensure equal access to the necessary preventive or curative services -is clearly in contrast with the provisions of both Article 12 of the Covenant on economic, social and cultural rights and Article 42 of the International Health Regulations.
Finally, when dealing with the issue of the right to health in international human rights law, we should note that the reduction of health inequalities and the fulfilment of the principle of non-discrimination in health matters constitute one of the pillars of Universal Health Coverage (UHC). The latter has been defined by WHO and the United Nations as a strategy to be implemented by all states as part of strengthening national health systems so that all people have access to promotive, preventive, curative, and rehabilitative health services of quality, when and where they need them, without financial hardship. 34 UHC -which, given its importance, has been included in the SDGs -is strongly focused on the goal of breaking the link between illness and poverty and making access to health and healthcare affordable and available for all. Clearly, the achievement of this goal requires a progressive reorientation and strengthening of national health systems, but it mostly requires that a commitment to leaving no one behind in terms of health protection must become the founding principle of any national health system.

Conclusions
As noted at the beginning of this article, the COVID-19 pandemic has proved to be a very important test and an important lesson should be learnt from it. We have often heard -particularly when dealing with the problem of vaccinations -that until every country is safe, no country will be safe; however, the same principle also applies to the internal situation of each country, and indeed, until every person is safe, there is a real risk that the epidemic will remain out of control. COVID-19 should represent a watershed moment for health inequalities. It is demonstrating that the appropriate allocation of resources to create conditions for healthy lives is an essential prerequisite for the state to be able to react adequately to emergencies of the magnitude of COVID-19. The problem is not merely one of increased earmarking of resources necessary for strengthening and improving the efficiency of the health system; rather, it is a matter of ensuring access to healthcare and health facilities for all segments of the national population on equal terms. Ensuring access to healthcare and treatment becomes particularly important in times of emergency, when there is a real risk that, due to limited resources and exceptional pressure on health systems, national authorities will give priority to certain groups, thereby discriminating in access to care or reinforcing existing discrimination. The ongoing pandemic is demonstrating that inequalities and discrimination in health not only create favourable conditions for the spread of diseases, especially infectious diseases, but can also put the health of the entire population at risk.
As a last point, with specific regard to the problem of other forms of discrimination generated by the pandemic, we should recognize that an efficient health system capable of providing assistance for all is also a useful and effective instrument for preventing other adverse effects that a pandemic could provoke.
If the national health system functions in such a way as to guarantee access to treatment and care without distinction, it will be more difficult for even a health emergency to become a pretext for fuelling other pre-existing forms of discrimination against minorities and other vulnerable groups or a further tool to exacerbate inter-ethnic and inter-religious conflicts.