Human Rights Must Guide a Pandemic Treaty

[Timothy Fish Hodgson is a Legal Adviser at the International Commission of Jurists. Roojin Habibi is a Research Fellow, Global Strategy Lab, and PhD Candidate, Osgoode Hall Law School, York University, Canada. Benjamin Mason Meier is Professor of Global Health Policy at the University of North Carolina at Chapel Hill, USA. Sharifah Sekalala  is an Associate Professor of Global Health Law at the University of Warwick, UK. Ian Seiderman is the Legal and Policy Director at the International Commission of Jurists. Tomaso Falchetta is the Head of Advocacy and Policy Team at Privacy International. Thomas Schwarz is the Executive Secretary of Medicus Mundi International Network. Letta Tayler is an Associate Director in the Crisis and Conflict Division at Human Rights Watch. Sean Tait is the Director of the African Policing Civilian Oversight Forum. Gerald Staberock is the Secretary General of the World Organization Against Torture. Sara (Meg) Davis is a Senior Researcher, Digital Health and Rights Project, at the Global Health Centre, Graduate Institute of International and Development Studies, Geneva.]

The World Health Assembly (WHA) will be holding a special session in November 2021 “dedicated to considering the benefits of developing” a pandemic treaty. This session will build upon the efforts of the Working Group on Strengthening WHO Preparedness and Response to Health Emergencies (WGPR) to assess the benefit of a new World Health Organization (WHO) convention, agreement, or other international instrument on pandemic preparedness and response.  Human rights must guide the process of developing reforms and the substance of legal obligations. The right to health places obligations on States and is therefore central to all measures aimed at preparing for and responding to pandemics. The prospective reforms of global health law amid the COVID-19 pandemic, including a prospective pandemic treaty or other international legal revisions, have the potential to strengthen or weaken the central foundation of human rights obligations to support sustainable, equitable, and effective efforts to prevent, prepare for, and respond to future pandemics.

A wide range of authorities within the United Nations (UN) have pushed states repeatedly to adopt human rights-based responses to the pandemic, with scant success. Instead, many states have neglected rights-based preparedness and responses to COVID-19. National health systems have frequently neglected public health systems for disease prevention, and national responses have undermined sexual and reproductive health and rights, disproportionately impacted a range of marginalized populations, and failed to ensure equitable access to COVID-19 vaccines. Echoing criticisms from authorities within the UN human rights system, independent reviews of the WHO response have taken states to task for, amongst other things, their inability or unwillingness to cooperate in adopting human rights-based approaches to preventing and curtailing public health emergencies. These violative public health responses have impaired the pandemic response, with the UN Secretary General decrying a “pandemic of human rights abuses.”

The potential drafting of a pandemic treaty could extend and compound these failures, posing a clear risk that “human rights obligations will be lost, diluted or misconstrued in efforts to reshape global health law.” There remain concerns that a hastily established treaty drafting process may not adequately engage with civil society and community organizations, allowing states to slip back into the habit of “all-too-easily sidelin[ing] the international human rights framework.” Leading researchers, academics, experts and human rights defenders have warned that global health law reforms may further marginalize human rights in global health governance. In order prevent this from occurring, a group of such experts has come together to develop “Ten Human Rights Principles for a Pandemic Treaty” that could assist in guiding the treaty negotiations.

To ensure the rights-based development of a prospective treaty, consultative processes guided by the right to participation are both necessary and required under international law; however, the ability of civil society to participate in the process of treaty deliberations and stakeholder consultations has thus far been severely limited. The WGPR has not granted non-state actors the opportunity to speak at its regular meetings, and, after an initial period of entirely closed sessions, only nongovernmental organizations in official relations with WHO have been permitted to even observe discussions. International human rights law and best practices in global health governance require the full and meaningful participation of a wide range of civil society and community organizations, and in particular marginalized individuals and groups. It also requires that low- to middle-income states, and civil society and community organizations from such states, are given voice in the drafting of a prospective pandemic treaty. Meaningful global participation in the drafting process is essential to ensuring that any pandemic treaty will fully and consistently embrace the human rights principles necessary to guide preparedness for and response to future public health emergencies and try to realize the aspiration that COVID-19 is “the last pandemic.”

Beyond the process of reforming global health law, the substance of a pandemic treaty must uphold specific human rights obligations. Specifically, a pandemic treaty must be grounded in the human right to health, following from the WHO Constitution and framing efforts to: maintain core public health capacities; ensure the availability, accessibility, and quality of diagnostics, medications, vaccines, therapeutics, and other health services; and ensure access to basic needs during lockdowns.More broadly, as a foundation of the pandemic treaty, human rights principles can and should provide a framework for rights-based public health practices, including equity and non-discrimination in pandemic response, participation from affected communities, transparency in government decision-making, and accountability for health outcomes and rights protections. In assessing limitations of human rights to protect public health, a pandemic treaty should provide a basis to clarify restrictive measures adopted in response to pandemic threats and establish monitoring mechanisms to facilitate state accountability under global health law.

These procedural and substantive elements are equally necessary to facilitate the universal realization of the human right to the highest attainable standard of health. In supporting states to realize these human rights obligations in the prevention, treatment, and control of pandemic threats, it will be crucial to strengthen global health governance through WHO, which should frame effective international cooperation and assistance in a manner that upholds health and human rights. The right to health provides a basis for global solidarity in pandemic preparedness and response, but to realize these global obligations, it will be essential that WHO and its Member States mainstream human rights in the development of a prospective pandemic treaty.

Finally, a pandemic treaty will fail to address the current challenges of inequitable global access to COVID-19 vaccines and therapeutics unless world leaders also introduce, as a matter of urgency, temporary intellectual property waivers to bolster availability and access of vaccines and therapeutics needed to combat the ongoing COVID-19 pandemic. Failure to do so amounts to a continuing violation of states’ human rights obligations, at the very least in terms of the rights to health, life, equality, and science.

[This piece was posted first in the Health and Human Rights Journal here.]