Reshaping Global Health Law in the Wake of COVID-19 to Uphold Human Rights

[Roojin Habibi, Tim Fish Hodgson, Benjamin Mason Meier, Ian Seiderman and Steven Hoffman]

The COVID-19 pandemic unequivocally reveals that human rights, the rule of law, democratic institutions and global solidarity are essential to effective public health emergency preparedness and response. Reiterated throughout discussions in the World Health Assembly (WHA) between 24 and 31 May 2021, there is now clear global consensus on the need to strengthen international legal standards to ensure future global pandemic preparedness.

For months leading up to the WHA, all eyes were on the world’s principal summit on global health to seize upon this pivotal moment to deliberate on the weaknesses that have exacerbated the impact of the COVID-19 pandemic and take decisive steps to ensure, in the words of the Independent Panel for Pandemic Preparedness (‘IPPPR’), that we make COVID-19 “the last pandemic.”

Yet, despite encouraging statements by dozens of WHO Member States, including pronouncements of support for a proposed Pandemic Treaty, there is a serious risk that human rights obligations will be lost, diluted or misconstrued in efforts to reshape global health law. Where the WHA has postponed key multilateral decisions, including ‘negotiations on whether to negotiate’ a formal intergovernmental process, until a November 2021 Special Session of the WHA, the coming months demand urgent discussions in local and multilateral fora to establish principled preparedness through human rights standards that are foundational to global health law. 

Reshaping Global Health Law

If the statements, declarations, and resolutions of the past week are an indication of negotiations to come, world leaders may be on course to miss this crucial but narrow window of opportunity to harmonize global health law with human rights principles.  In the lead up to the WHA, some of the recommendations issued by the Independent Oversight and Advisory Committee (IOAC) for the WHO’s Health Emergencies Programme, the IPPPR, and the Review Committee on the Functioning of the International Health Regulations in the COVID-19 Response (‘IHR Review Committee’) echoed consistent criticisms from global health scholars and human rights advocates. These critics have taken the WHO and its Member States to task for their inability or unwillingness to cooperate in adopting human rights-based approaches to preventing and curtailing public health emergencies, culminating in the failures in the COVID-19 response.

Findings from all three of these reports converge on the role of early and decisive action at the outset of an outbreak to strengthen robust responses to pandemic threats. On this point, criticism is rightly addressed at both the substance and implementation of the International Health Regulations (IHR). Despite their relatively recent revisions in 2005, under a similar but less amplified moment of crisis in the aftermath of SARS, the IHR have come under scrutiny inter alia for their “conservative” nature and the tendency to “constrain rather than facilitate rapid action.”

Yet, despite correctly identifying some of the failings of the current legal regime, these assessments of the pandemic response do not inspire confidence in the global health architecture’s ability to propel reform that is consistent with international human rights obligations. Human rights standards and language were largely omitted from the main reports of the three key independent review mechanisms submitted to the WHA. These omissions risk enabling a critical dereliction of state responsibility given the scale and variety of human rights violations and abuses occasioned by COVID-19 and many States’ apparent lack of understanding or political will in upholding the centrality of human rights standards to the pandemic response.

Learning Lessons and Moving Forward

Even where they are not fully elaborated, the human rights lessons from these reports remain crucial in future reforms. There is, however, a risk of these lessons fading from collective memory as States begin to negotiate a Pandemic Treaty. Global health and human rights experts and advocates must play a crucial role in ensuring this does not happen.

We call on governments and multilateral institutions to act expeditiously to recognize the inextricable linkages between public health and human rights as they prepare for treaty deliberations in late 2021. Neither international human rights nor global health law and standards are self-contained regimes, and the following recommendations provide a basis for harmonizing global health law with human rights law, realizing the right to health through global solidarity, and facilitating international cooperation through global health governance.  

1. Harmonizing Global Health Law and Human Rights Law

While States and the WHO must be empowered to act decisively in responding quickly to a public health emergency, we caution Member States against reflexively embracing the “precautionary principle” – a blunt public health framework which may provide some governments with an all too easy excuse for discriminatory, fear-based, and xenophobic health measures, and unnecessary or disproportionate emergency rules excessively restricting the enjoyment human rights and fundamental freedoms. Seeking to promote multilateral trust and information-sharing, the IHR, consistent with international human rights law and standards, espouse the need for public health measures that are necessary and proportionate (least restrictive), non-discriminatory, clear and narrowly tailored, and based on scientific principles and available scientific evidence. Rather than encouraging nations to turn inwards, a Pandemic Treaty should encourage Member States to collaborate to better understand the empirical effectiveness and consistency with human rights of various public health measures. Evidence-based guidelines must be developed to justify public health measures, harmonizing global health law with international human rights law’s imperative to demonstrate the necessity and proportionality of government measures adopted in times of crisis.

2. Realizing the right to health through capacity building of public health systems

More fundamentally, Member States must understand that application of the precautionary principle in the event of a pandemic can be no substitute for pandemic preparedness commitments that prioritize robust and comprehensive public health systems and infrastructure in all countries. Adequate preparation can only be achieved through global solidarity in compliance with States’ obligations to realize the right to health through international cooperation and assistance. In meeting international obligations under the right to health, States must agree to fund effective and coordinated financing mechanisms that focus on pandemic preparedness but also move beyond it. To be truly prepared for the next pandemic, or even better braced to overcome continued devastation from the current one, States must focus efforts on progressively realizing access to quality universal health coverage, education, food, water, sanitation, housing, social security and other economic and social rights for all people.

3. Facilitating international cooperation through global governance

Following from the right to health, countries must “pull out all the stops” to ensure vaccine equity and more broadly ensure access to necessary healthcare services and products needed to respond to the COVID-19 pandemic. Remarks made by States throughout the WHA emphasize the continued significance of vaccine equity as the pressing issue for the majority of the world’s countries. Despite this, rhetoric on solidarity has remained vague, uttered by political leaders in half-hearted attempts to whisk away the raw truth: States have overwhelmingly prioritized national interests and the interests of the powerful, even as the pandemic has deepened inequalities both within and between societies and imposed disproportionate impacts on the most marginalized. A truly global vaccine drive and public health response substantively powered by global solidarity is the only way these possibilities can be avoided. States must take coordinated action through global governance to enhance manufacturing and production capacities for vaccines and other essential medicines and healthcare services and products in all regions of the world.  

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International human rights law and global governance institutions can and should be powerful drivers for change. Too often, however, their far-reaching potential is curtailed by goals that focus on short-term gains rather than addressing the root causes of human rights and public health failures. If States are to build an international legal instrument that promotes solidaristic measures such as “sharing data, sharing information, sharing pathogens, sharing resources, sharing technology,” they must maintain a sense of urgency while engaging in thoughtful, sustained and good-faith deliberation and consensus-building. They must also ensure full participation of civil society, including independent public health and human rights experts, to improve the effectiveness and legitimacy of these efforts.

It is certain that the world will face many more pandemic threats in the years to come, and, as the IHR Review Committee Chair’s noted to Member States last week, “if we fail to prepare, we are in fact preparing to fail.” Apathy and inaction from States are choices of themselves. So are attempts to avoid difficult political conversations and ignore binding human rights obligations for short-term expedience. States will imperil current and future generations if they fail to see the inextricable linkages between health and human rights.

This post is cross-posted to the Health and Human Rights Journal (https://www.hhrjournal.org/)