International Law for a Fragile World: Health and Human Risk – Pandemics, Inequality, and the Limits of Solidarity

[Dr Sergey Sayapin is Professor of Law at KIMEP University (Almaty, Kazakhstan) and Distinguished Visiting Global Scholar at the NUS Centre for International Law (2025)]

If global risk has become the defining condition of contemporary international law, its most immediate and consequential expression lies in human vulnerability. Climate change destabilises ecological systems, technological innovation diffuses agency and outpaces control – yet it is through human exposure to disease, deprivation, and inequality that these risks ultimately materialise. The COVID-19 pandemic made this unmistakably clear – it was not merely a public health crisis but a systemic shock that revealed both the fragility of global society and the limits of existing legal frameworks to organise protection under conditions of interdependence.

This post argues that pandemics expose a structural limitation at the heart of international law – its inability to govern the distribution of risk across populations. While my earlier posts have traced the mismatch between legal form and systemic and technological risk, the pandemic context reveals a further, distinct problem. Risk is not only transboundary and cumulative – it is profoundly unequal in its incidence and effects. Yet international law remains oriented toward coordination among formally equal states, with obligations framed in reciprocal and consent-based terms rather than toward managing asymmetries in vulnerability. This creates a structural blind spot – legality can be satisfied even as exposure to harm remains radically uneven. In this context, the absence of solidarity as a meaningful legal principle is no longer a secondary concern – it is a central deficiency in the architecture of global governance. A legal order that cannot organise collective responses to shared but unequal vulnerability risks failing precisely where its relevance is most urgently required.

Pandemics as Systemic Human Risk

Pandemics are often treated as discrete biological events. In legal terms, they tend to trigger emergency responses, exceptional measures, and temporary derogations. This framing obscures their deeper character. Modern pandemics are systemic phenomena – they arise from the interaction of ecological disruption, global mobility, urban density, and economic integration. Their effects propagate through interconnected infrastructures – health systems, supply chains, and labour markets – producing cascading consequences far beyond the initial site of infection. In this sense, pandemics are not external shocks to otherwise stable systems – they are manifestations of structural interdependence.

The COVID-19 pandemic illustrates this dynamic with particular clarity. The risk of a global pandemic was not unforeseen. It had been extensively documented in WHO reports, national risk assessments, and academic literature – yet international law largely failed to internalise this knowledge in operational terms. The International Health Regulations (IHR, 2005), the central legal instrument governing global health emergencies, focus primarily on notification, reporting, and coordination. They impose obligations of information-sharing (Articles 6 – 7) and capacity-building (Annex 1) but stop short of creating enforceable duties of preparedness, rapid disclosure backed by verification, or equitable resource distribution. Even the declaration of a Public Health Emergency of International Concern (PHEIC) remains dependent on state-reported information and institutional discretion, limiting its effectiveness as an early-warning trigger.

When COVID-19 spread globally, the legal response was therefore reactive rather than anticipatory. Border closures, emergency powers, and export restrictions were adopted rapidly, often in ways that strained or bypassed existing legal commitments, including trade disciplines and the spirit – if not always the letter – of the IHR. The framework proved effective in facilitating communication but largely incapable of ensuring timely compliance or coordinated action. Delays in reporting and inconsistencies in data-sharing during the early stages of the pandemic exposed not only political hesitation but the structural weakness of a regime that relies on self-reporting without meaningful enforcement or independent verification. In effect, core procedural obligations operated more as expectations of good faith than as binding constraints.

More fundamentally, pandemics do not align with the classical model of international responsibility. They are not the result of a single internationally wrongful act, nor can their consequences be meaningfully attributed to discrete decisions in the sense required by the law of state responsibility. Instead, they emerge from the cumulative effects of lawful activities – including deforestation, wildlife trade, global transport, and scientific research. In such contexts, harm is systemic rather than attributable, and causation is diffuse rather than linear. This places pressure on doctrines of breach and attribution, which presuppose identifiable conduct and traceable consequences. An international legal order structured around breach and reparation is therefore inherently ill-equipped to govern the conditions under which pandemics arise and unfold. What is required, but only partially developed in existing law, is a conception of due diligence that operates ex ante – focused on risk reduction, transparency, and preparedness – rather than ex post allocation of responsibility.

Inequality as a Risk Multiplier

If pandemics reveal the systemic nature of global risk, they also expose its unequal distribution with unusual clarity. Risk is not experienced uniformly – it is mediated by structural inequalities that shape exposure, resilience, and recovery. At the international level, vaccine distribution during COVID-19 offers a paradigmatic example. By early 2021, high-income states had secured the majority of available vaccine doses through advance purchase agreements, often far exceeding their population needs. Canada, for instance, secured doses sufficient to vaccinate its population multiple times over. In contrast, many low- and middle-income countries remained dependent on delayed deliveries through the COVAX mechanism. While COVAX represented a significant effort at multilateral coordination, it was structurally constrained by underfunding, supply limitations, and – crucially – the absence of binding redistribution obligations or enforceable allocation criteria within the existing legal framework.

The debate over the proposed TRIPS waiver at the World Trade Organization further illustrates the limits of existing legal frameworks. Advocates argued that temporary suspension of intellectual property protections under the TRIPS Agreement was necessary to expand global vaccine production and address supply bottlenecks. Opponents emphasised innovation incentives, technology transfer complexities, and manufacturing constraints. The eventual compromise, adopted only after prolonged negotiation, fell far short of the original proposal, underscoring the difficulty of reconciling global health imperatives with entrenched legal and economic structures. Importantly, the core architecture of intellectual property protection remained intact, even as its distributive consequences – limited manufacturing capacity, restricted access, and delayed immunisation – became increasingly difficult to justify in light of a global public health emergency.

Within states, the distribution of risk followed similarly unequal patterns. Essential workers – often in low-paid and precarious employment – faced higher exposure to infection due to the impossibility of remote work. Migrant populations frequently lacked access to healthcare and social protection, particularly where legal status restricted entitlement. In many jurisdictions, racial and socio-economic disparities translated directly into differential infection and mortality rates, as documented in the United States, the United Kingdom, and parts of Latin America. These outcomes were not incidental – they reflected pre-existing inequalities embedded in labour markets, housing conditions, and access to care.

From a legal perspective, these dynamics pose a fundamental challenge. International law operates on the premise of formal equality among states, with obligations framed in reciprocal and consent-based terms – yet pandemic risk is structured by asymmetry. The same legal framework produces radically different outcomes depending on underlying conditions of wealth, infrastructure, and governance capacity. This tension is also visible in international human rights law. The right to health, as articulated in the International Covenant on Economic, Social and Cultural Rights, includes obligations of international assistance and cooperation. However, these obligations remain weakly specified and rarely enforced, leaving significant gaps between normative commitments and material outcomes. In this sense, inequality is not external to risk – it is constitutive of it. A legal order that does not directly engage with these asymmetries risks stabilising them under the guise of formal equality.

The Limits of Consent-Based Health Governance

The pandemic also exposes the structural limits of consent-based governance. International health law remains grounded in the principle that states voluntarily assume obligations and retain primary authority over their implementation. This model presupposes that coordination among sovereign equals is sufficient to address collective problems. Pandemic risk challenges this assumption: infectious disease spreads irrespective of consent, and the actions – or inactions – of one state can have immediate global consequences. Yet states retain broad discretion over critical aspects of pandemic response, including data transparency, border control, and resource allocation. During COVID-19, this discretion translated into a pattern of nationally oriented decision-making that often undermined collective outcomes. Export restrictions on personal protective equipment and vaccines illustrate this dynamic.

Despite commitments to international cooperation, numerous states imposed controls on the export of essential medical supplies at the height of the crisis. These measures were often legally defensible under trade and health exceptions, yet they contributed to global shortages and delayed responses in more vulnerable regions. The result was a persistent disjunction between formal legality and substantive effectiveness – consent-based governance ensures participation but does not guarantee outcomes aligned with the collective interest.

This raises a deeper doctrinal question. International law has long recognised obligations erga omnes – duties owed to the international community as a whole, such as the prohibition of genocide or slavery. It has also developed the concept of due diligence, requiring states to prevent harm originating within their jurisdiction. Pandemic risk suggests that similar reasoning may need to be extended to global health. Where the failure to contain disease in one jurisdiction endangers all others, the distinction between domestic discretion and international obligation becomes increasingly difficult to sustain.

The Failure of Solidarity as a Legal Principle

At the centre of these difficulties lies the limited legal status of solidarity. While frequently invoked in political discourse and reflected in soft law instruments, solidarity remains weakly articulated as a binding legal principle. The pandemic revealed the practical consequences of this gap. Initiatives such as COVAX, the Access to COVID-19 Tools (ACT) Accelerator, and various bilateral donation programmes were framed in terms of solidarity – yet their operation depended on voluntary contributions and political will. Where cooperation occurred, it was often contingent and uneven. Where it did not, there were few legal mechanisms to compel participation.

This stands in contrast to the functional reality of interdependence. Pandemic control is inherently collective – no state can achieve durable protection in isolation. The emergence of new variants in under-vaccinated populations demonstrates that failures of solidarity are not merely unjust – they are self-defeating. In a globally connected system, vulnerability in one region translates into risk for all.

From a legal perspective, the marginalisation of solidarity reflects the persistence of a framework built around reciprocity and sovereignty. These principles assume that states can pursue their interests within a system of mutual restraint. Pandemic risk, however, collapses this distinction. The interests of states are no longer separable in any meaningful sense. Health security is indivisible. The challenge, therefore, is not simply to invoke solidarity more frequently but to translate it into legal obligation. Without such translation, solidarity remains aspirational – normatively appealing but structurally ineffective.

Beyond Attribution – Toward Shared Vulnerability

The limitations of classical responsibility become particularly evident in this context. While debates about state responsibility for pandemic-related conduct – such as delayed reporting or inadequate notification – have attracted attention, they address only a narrow and ultimately secondary dimension of the problem. They remain anchored in a framework that presupposes identifiable breach, attributable conduct, and retrospective evaluation. Pandemic risk does not conform to this structure. The central issue is not isolated wrongdoing but shared vulnerability arising from systemic interdependence.

This suggests a need to reframe core legal concepts rather than merely extend them. The duty to cooperate, recognised in numerous international instruments and reaffirmed in the jurisprudence of international courts, provides one possible foundation. Similarly, the principle of due diligence – increasingly understood as an obligation of conduct requiring states to prevent transboundary harm – can be reinterpreted in a forward-looking manner to encompass preparedness, transparency, and sustained participation in collective response mechanisms. Importantly, recent developments in international law point toward a gradual expansion of such obligations beyond narrowly defined bilateral contexts. The reasoning of the International Court of Justice in cases involving environmental protection and shared resources, as well as its articulation of obligations erga omnes, suggests that certain risks engage duties owed to the international community as a whole.

Parallel developments in international human rights law reinforce this trajectory. The right to health, as interpreted under the United Nations human rights framework, encompasses obligations of prevention, preparedness, and, at least in principle, international assistance and cooperation. While these obligations remain weakly specified and unevenly implemented, they reflect an emerging recognition that states’ responsibilities are not confined to their own populations where systemic risks are concerned. In conditions of global health interdependence, failure to act domestically may generate consequences that extend well beyond national jurisdiction.

In a risk-oriented framework, responsibility would therefore no longer be confined to ex post attribution. It would extend to the adequacy of institutional and regulatory systems designed to anticipate and mitigate harm before it materialises. The relevant question shifts accordingly: not simply whether a state violated a specific rule but whether it exercised sufficient vigilance, maintained adequate preparedness, and engaged meaningfully in cooperative structures aimed at reducing shared risk. This marks a shift from reactive liability to proactive stewardship. It also signals a deeper transformation in the function of international law – from a system primarily concerned with the consequences of failure to one increasingly oriented toward the governance of vulnerability itself.

Toward a Law of Global Health Risk Governance

What would such a shift entail in practice? It does not point to a single institutional reform but to a gradual yet decisive reorientation of legal priorities – from reactive coordination to anticipatory governance structured around shared vulnerability.

First, anticipatory obligations must be strengthened and rendered operational. This includes not only timely reporting and transparent data-sharing, as required under the existing International Health Regulations (2005) but also enforceable standards for early detection, independent verification, and rapid information exchange. The new Pandemic Agreement adopted under the auspices of the World Health Organization on 20 May 2026 reflects recognition of this need. Its effectiveness will now depend on whether it moves toward establishing clearer compliance mechanisms, including peer review, monitoring, and, potentially, graduated responses to non-compliance.

Second, preparedness must be treated as a matter of international legal concern rather than domestic discretion. The COVID-19 pandemic demonstrated that inadequate national health capacity generates transboundary risk. Legal frameworks could therefore articulate minimum standards for core public health capacities – building on Annex 1 of the IHR – combined with binding commitments to provide financial and technical assistance to states unable to meet them. Such an approach would align preparedness with emerging understandings of due diligence as a continuing obligation to reduce foreseeable systemic risk.

Third, distributive mechanisms must be embedded within legal design. Equitable access to vaccines, therapeutics, and diagnostics cannot be left to market allocation or voluntary initiatives alone. More robust legal tools already exist but remain underutilised or politically constrained. These include compulsory licensing under the TRIPS Agreement, coordinated procurement frameworks, and pooled manufacturing initiatives. The limited outcome of the TRIPS waiver negotiations during COVID-19 demonstrated both the availability of legal flexibility and the reluctance to deploy it at scale. A risk-oriented legal framework would treat such mechanisms not as exceptional responses but as integral components of global health governance.

Fourth, governance must be adaptive and institutionally reflexive. Legal regimes should incorporate mechanisms for continuous review, data-driven adjustment, and integration of scientific expertise. This may include regular compliance assessments, stress-testing of national systems, and formalised processes for revising obligations in light of new evidence. Crucially, adaptability must be structured rather than ad hoc – learning from failure should be embedded within institutional design, rather than left to post-crisis political negotiation.

These elements are already emerging in fragmented form across existing regimes and reform initiatives. The central challenge is to integrate them into a coherent legal framework capable of managing systemic health risk before it crystallises into crisis. Without such integration, international law risks remaining trapped in a cycle of reactive adjustment – normatively active, yet structurally outpaced by the conditions it seeks to govern.

The COVID-19 pandemic will not be the last global health crisis. As ecological disruption, technological transformation, and deepening interdependence continue to reshape the conditions of human life, similar risks will recur with increasing frequency and complexity. The question is no longer whether international law can prevent such crises in the abstract but whether it can meaningfully govern their conditions. A legal order that can translate shared vulnerability into structured cooperation – grounded not only in consent but in responsibility to the collective – may remain central to global governance. One that cannot will not simply be ineffective – it will become increasingly peripheral to the forces that shape the future.

Photo attribution: by Tai’s Captures on Unsplash