Advancing Human Rights in Pandemic Treaty Debates

[Benjamin Mason Meier, Sanhita Ambast, Jacquelyn Bedingham, Judith Bueno de Mesquita, Alessandro Figueroa, Roojin Habibi, Timothy Fish Hodgson, Ashley Lim, Alexandra Phelan, Sharifah Sekalala, and Adam Strobeyko]

This blog represents the opinions and positions of the undersigned individuals, and not that of the Civil Society Alliance for Human Rights in the Pandemic Treaty (CSA) as a whole. The CSA is an informal, open group of organizations and individual experts working to mainstream human rights considerations in the negotiations of the “Pandemic Treaty” and related processes in the field of governing health emergency and pandemic prevention, preparedness and response. Find more information here or here.

This is a pivotal moment in the global governance response to future pandemic threats, with crucial global health law reforms being undertaken through the World Health Organization (WHO) to “draft and negotiate a convention, agreement or other international instrument on pandemic preparedness and response.”  To be developed by the World Health Assembly of WHO Member States, this so-called “Pandemic Treaty” provides a crucial opportunity to advance human rights in global health governance, responding to human rights challenges in the COVID-19 response and establishing human rights obligations to meet future pandemic threats.  With the World Health Assembly appointing an Intergovernmental Negotiating Body (INB) to begin the drafting process, the INB recently released a “Conceptual Zero Draft” of the Pandemic Treaty.  WHO Member State negotiations in the coming months will be crucial to the future of human rights in global health.

A Pandemic Treaty in Global Health Law

During the COVID-19 pandemic, the International Health Regulations (IHR) provided the primary international legal authorities in the pandemic response; however, states had long neglected IHR “core capacities” to prepare for public health emergencies, limiting state notification of disease outbreaks, government compliance with WHO guidance, and global solidarity in facing a common threat. These limitations of global health law underscored the importance of developing a novel Pandemic Treaty to complement the IHR – establishing new legal authorities to prevent, prepare for, respond to, and recover from future pandemics. 

To ensure global justice amid future pandemics, it will be necessary to align obligations of the Pandemic Treaty with obligations under human rights law. The 1946 WHO Constitution recognized for the first time that “the enjoyment of the highest attainable standard of health” is the “fundamental right of every human being,” laying a foundation for United Nations (UN) efforts over the past 75 years to advance human rights in global health governance.  The Pandemic Treaty provides a necessary opportunity to develop human rights obligations to strengthen global health law, overcoming human rights limitations in the COVID-19 pandemic.

Human Rights Limitations in the COVID-19 Pandemic

There have been wide-ranging human rights violations throughout the pandemic response, revealing inequities in global health governance, weakening the global health response, and raising an imperative for human rights in global health law.  From the earliest days of the pandemic, the UN Secretary-General recognized COVID-19 as a “human rights crisis,” with UN human rights institutions and mechanisms rapidly issuing human rights guidance and authoritative interpretations of human rights obligations, but states largely neglected these legal frameworks in their domestic and international actions.  Learning from this human rights neglect in the COVID-19 response will be pivotal to the future of human rights – framing new obligations to ensure (1) public health capacities to prevent and prepare for future pandemics, (2) equitable health systems to provide health care and underlying determinants of health in pandemic responses, and (3) global solidarity to realize the right to health throughout the world.  

States bear obligations under the right to health to prevent and prepare for diseases through the creation of national health systems to respond to crises, epidemiological surveillance to recognize outbreaks, and public health infrastructures to mitigate determinants of disease; however, states neglected these international obligations to ensure prevention and preparedness. Structural adjustments have left national health systems weakened by years of funding cuts—driven by continuing deregulation, privatization, and austerity—with many states lacking core public health capacities necessary to prevent and prepare for pandemic threats. 

In responding to the pandemic, the COVID-19 crisis has illustrated the challenge for health systems in withstanding a prolonged health crisis. Discharging State obligations to realize the right to health requires that governments ensure “medical care and medical attention in the case of sickness,” providing available, accessible, acceptable, and good quality care; yet, many countries have been unable to meet the public need for care (for treatment of the disease, related health conditions, and “long COVID” challenges) and ensure universal health coverage. With health systems overwhelmed, states rapidly instituted emergency measures for “social distancing,” with lockdowns and other restrictions that often discriminatorily, unnecessarily or disproportionately limited fundamental freedoms, undermined rights to access to justice and effective remedies, neglected economic and social rights (including, education, housing, food, water, sanitation, and social security), and increased inequities faced by vulnerable communities.  

These inequities have been extended globally, with a failure of international cooperation undermining global solidarity in facing a global threat.  Looking to human rights as a foundation for global solidarity, states bear obligations for international cooperation and assistance under international law, but WHO has been repeatedly stymied in efforts to realize solidarity in the pandemic response.  Neglecting this global obligation, some wealthier nations have hoarded COVID-19 vaccines, with this “vaccine nationalism” leaving lower-income countries with few options for acquiring sufficient doses from private companies. This inequitable distribution of essential vaccines and other medical countermeasures has reinforced colonial dynamics in global health, stifling the progressive realization of the right to health throughout the world.  

Human Rights in Pandemic Treaty Negotiations

Prospective reforms of global health law amid the COVID-19 pandemic have the potential to strengthen the foundations of human rights in global health governance.  Given the limitations of the pandemic response, advocates have called for a new treaty to codify effective legal obligations to address future pandemics while advancing principles of equity, human rights, and accountability.  In September 2020, the WHO Director General appointed an Independent Panel on Pandemic Preparedness and Response (IPPPR) to identify the factors that led to COVID-19 pandemic, with the final IPPPR report recommending the adoption of a “Pandemic Framework Convention.”  The World Health Assembly thereafter resolved in November 2021 to develop this new treaty under WHO authority, empaneling the INB to draft treaty provisions. 

Human rights advocates have sought to engage with these INB negotiations, coming together in a Civil Society Alliance for Human Rights in the Pandemic Treaty (CSA).  To ensure civil society participation in the treaty development process and advance human rights in the pandemic treaty negotiations, the CSA first sought to frame INB debates through the December 2021 development of “Ten Human Rights Principles for a Pandemic Treaty,” framing human rights norms to be considered when drafting, negotiating, and implementing the new treaty.  To build support for this human rights imperative, the CSA developed the #AJustPandemicTreaty campaign to draw attention to limitations on civil society participation in the treaty drafting process, recognizing that civil society is uniquely situated to contribute perspectives of rights-holders and rights-based approaches. 

Taken up in the Pandemic Treaty negotiations, the INB has hosted a series of informal, focused consultations (IFCs) with interdisciplinary experts, whose interventions have revealed the need for human rights standards in:

• Public health prevention and preparedness – given state limitations in meeting IHR core capacities to progressively realize the human right to health, the INB emphasized capacity building in public health systems, including upstream determinants of health (a “deep prevention” and “one health” approach).
• Domestic health systems – with human rights implicating access to medical interventions and personal protective equipment, INB debates centered equity as a foundation to provide services across populations, support vulnerable populations during lockdowns, and ensure care for COVID-19 illnesses and long-COVID symptoms.
• Global solidarity – with inequitable access to essential vaccines and health resources across countries, structured by the international intellectual property regime, experts argued that the lack of global solidarity reflects a failure of the “duty to cooperate,” with the INB considering obligations for international assistance and cooperation.

Based upon these early diplomatic processes, the INB has now developed a Conceptual Zero Draft of the Pandemic Treaty, looking to this framework to develop a draft agreement for consideration by the World Health Assembly in May 2024. 

Human Rights in the Conceptual Zero Draft

The Conceptual Zero Draft provides a foundation to establish human rights law in the Preamble, Vision, and Principles sections of the Pandemic Treaty and to mainstream human rights norms in substantive obligations for public health prevention and preparedness, equitable access to health care and underlying determinants of health, and global solidarity.

Beyond the preambular recognition of human rights, the Conceptual Zero Draft merges consideration of public health prevention and preparedness, seeking to strengthen:

• public health functions – to ensure research and development systems (art. 8), sharing of pathogen genetic sequence data (art. 9), and continuity of primary health care, including “efficacious, quality, safe, effective, affordable, and equitable” health services (art. 10),
• health workforce – with due protection of their employment and rights (art. 11),
• preparedness monitoring – alongside simulation exercises and peer reviews to assess preparedness (art. 12),
• community engagement– to ensure participation in whole-of-society actions (art. 15), and
• One Health approach – including the coordination of multisectoral surveillance systems and the inclusion of “whole-of-government and whole-of-society perspectives” (art. 17).

Reforms of these provisions will be crucial to ensure that prevention and preparedness look to human rights law and standards in framing public health systems and rights-based approaches to protect the health workforce and community participation. 

The right to health, recognized as a cross-cutting principle of the Pandemic Treaty (art. 4), provides a foundation under international law to ensure the availability, accessibility, acceptability, and quality of health care and underlying determinants of health.  Providing opportunities to implement the right to health on the basis of equality and non-discrimination through health care systems, the Conceptual Zero Draft (chapter III) explicitly embraces equity in provisions on the global supply chain (art. 6), access to technology (art. 7) and access and benefit sharing (art. 9). To ensure a human rights-based response to pandemics beyond the health sector, recognizing that states often undertake public health measures that unlawfully, discriminatorily, unnecessarily and/or disproportionately limit human rights (through quarantines, travel bans, prohibitions of assembly, and “lockdowns”), it will be crucial to reform provisions on the proportionality of public health responses (art. 4) to comport with human rights principles on limitations and derogations, support communities in adhering with public health measures, and employ safeguards to mitigate disproportionate effects on persons from marginalized groups.

Global solidarity remains an essential guiding principle of the Pandemic Treaty, with the preamble recognizing the “need to enhance global solidarity and effective coordination.” The Conceptual Zero Draft further recognizes that the “effective prevention of, preparedness for, and response to pandemics” requires “solidarity” – that is, “national, international, multilateral, bilateral, and multisectoral collaboration, coordination and cooperation in order to achieve a fairer, more equitable and better prepared world” (art. 4). Other experts of international law and relations argue that global solidarity encompasses not only pandemic preparedness, but espouses broader obligations, including the notion of common but differentiated responsibility, the denouncing of charitable assistance, and intergenerational equity – providing for manifestations of solidarity in pandemic prevention, preparedness, response, and recovery. Aligning this clear commitment to global solidarity with extraterritorial human rights obligations of international assistance and collaboration will require greater specificity of human rights responsibilities across institutions of global governance.

The Pandemic Treaty provides hope in these uncertain times for strengthening human rights obligations under global health law.  Amid sweeping reforms across the global health landscape, the international obligations of human rights will be necessary across these reforms – with universal human rights obligations shaping a common normative foundation for global health governance in responding to future pandemic threats.