Advancing Human Rights in Global Health through the Pandemic Treaty
By Benjamin Mason Meier and Sonam K. Shah
The World Health Assembly will be meeting in an extraordinary Special Session in the coming week, with only one item on the agenda – the development of a “convention, agreement, or other international instrument on pandemic preparedness and response.” This “pandemic treaty,” as it has come to be known, provides hope in these uncertain times for strengthening human rights obligations under global health law. Examining human rights limitations in the COVID-19 response, this three-part perspective analyzes opportunities to mainstream human rights in pandemic treaty negotiations.
I. Human Rights are Central to Global Health
Human rights seek to uphold the inherent dignity and universal equality of all people everywhere, creating a universal framework to advance freedoms and entitlements under international law. In 1946, the Constitution of the World Health Organization (WHO) declared for the first time under international law that health is a human right. Establishing a foundation to incorporate human rights under international law as a basis for public health, human rights law evolved through the United Nations (UN) to encompass a wide range of disease prevention and health promotion efforts. The UN’s 1948 Universal Declaration of Human Rights (UDHR) proclaimed “a common standard of achievement for all people and nations,” enumerating a broad set of fundamental rights underlying health. Amid the challenges of the Cold War, the UN would codify the right to health under the 1966 International Covenant on Economic, Social and Cultural Rights (ICESCR), framing government obligations to realize the “highest attainable standard” of health.
The right to health would prove to be central to global health governance. WHO worked through the 1978 Declaration of Alma-Ata to develop a rights-based strategy to advance primary health care. Extended across a wider range of rights, the early injustices of the AIDS response raised an imperative for human rights in global health, with WHO coming to see human rights promotion as essential to public health protection. Human rights advocacy in the AIDS response gave rise to a “health and human rights” movement, seeking to mainstream human rights across global health policy.
This movement has elaborated the right to health under international law while mainstreaming human rights in health governance. Responding to the rising health threats of a rapidly globalizing world, the UN Committee on Economic, Social, and Cultural Rights in 2000 adopted General Comment 14, interpreting the ICESCR to address a wide range of underlying determinants of health, including food, housing, work, education, and non-discrimination. As the UN shifted from the development to the implementation of rights, this “era of implementation” highlighted the importance of mainstreaming human rights across global governance institutions. Within WHO, the 2005 revision of the International Health Relations (IHR) explicitly included human rights as one of its pillars, requiring that states implement the IHR “with full respect for the dignity, human rights and fundamental freedoms of persons.”
II. COVID-19 has Challenged Health and Human Rights
Despite these advancements in developing and implementing human rights in global health, the COVID-19 pandemic has tested efforts to safeguard human rights, as national policies and global responses have faced challenges in upholding human rights in the pandemic response.
A. National Violations
National health systems have been overwhelmed by the COVID-19 pandemic, limiting the realization of human rights. Following from years of austerity measures, health systems have proven ill-equipped to deal with the unprecedented challenge of COVID-19. Many health facilities lacked necessary staff, protective equipment, and diagnostic testing – hobbling efforts to treat, care, and vaccinate all those in need. These failures to ensure universal health coverage have imposed increasing burdens on the realization of the right to health for vulnerable populations. Iniquitous public health responses have raised sweeping implications for a far larger set of rights. Freedom of movement was infringed through travel bans, quarantine policies, and population-wide lockdowns. With these restrictions additionally undermining economic and social rights, social distancing measures infringed on the rights to education, housing, food, water, sanitation, and physical and mental health, disproportionately impacting marginalized and disadvantaged communities.
These limitations on the implementation of health-related human rights have continued with the scientific development and distribution of COVID-19 vaccines and treatments. Given restrictive intellectual property regimes, wealthy nations in the Global North have bought hundreds of millions of doses of the vaccine from private drug companies, leaving lower-income countries with few options in acquiring access to sufficient doses. Where wealthy nations have increasingly sought to donate their surplus vaccine supply, this charitable dynamic has proven grossly inadequate to the scale of global need. Such an inequitable distribution of an essential COVID-19 vaccine has reinforced colonial dynamics in global health, stifling the progressive realization of the right to health (and the right to enjoy the benefits of scientific advancements) throughout the world and undermining human rights in global health governance.
B. Global Governance Limitations
WHO was intended to serve at the forefront of efforts to realize human rights through global health governance; yet rights-based approaches to health have been threatened by political constraints in international relations, limiting efforts to develop a collective response to this common challenge. Political limitations have increased as nationalist leaders rejected efforts to achieve international cooperation through international organizations, pursuing isolationist policies in the pandemic response and rejecting human rights obligations to support global health governance. Delegitimizing WHO’s leadership in responding to the pandemic, these nationalist attacks challenge human rights under international law as a basis for public health, constraining international efforts to advance human rights as a foundation for global health governance.
Weaknesses of global health governance have limited efforts to realize global solidarity in vaccine distribution, with global governance institutions finding diminished national support and increased vaccine inequity. This “vaccine apartheid” has rapidly escalated as wealthy states in the Global North have amassed vaccine supplies that exceed the needs of their populations, remaining hesitant to provide their vaccine surpluses to lower-income countries through the COVAX initiative. Patent bottlenecks have imperiled universal access to these vaccines, creating tensions between human rights and intellectual property regimes as states have been unwilling to waive patent protections in the World Trade Organization. It will be necessary to strengthen legal authorities in global health law to uphold human rights in these challenging times – preparing for future pandemics under a pandemic treaty.
III. Strengthening Human Rights in Global Health
In codifying human rights under global health law, a new pandemic treaty provides opportunities to promote global health security while upholding human rights obligations. Following from the WHO Constitution and core international human rights treaties, the pandemic treaty must reaffirm the right to health as a foundation of pandemic preparedness efforts, framing efforts to
maintain core public health capacities;
ensure the availability, accessibility, and quality of health services; and
provide access to basic needs during lockdowns.
Mainstreaming human rights as a foundation of the pandemic treaty, human rights can establish a cross-cutting lens through which to assess rights-based public health practices, protecting vulnerable populations in the pandemic response through principles of:
equity and non-discrimination,
participation from affected communities,
transparency in government decision-making, and
accountability for health outcomes.
By circumscribing restrictions of human rights to protect public health, aligning global health law and human rights law, the pandemic treaty can (a) clarify circumstances that warrant restrictive public health measures in response to pandemic threats and (b) establish monitoring procedures to facilitate accountability for disproportionate restrictions.
In carrying out the human rights aspirations of a pandemic treaty, it will be crucial to strengthen global health governance through WHO to ensure global solidarity. The codification of extraterritorial human rights obligations through the pandemic treaty can provide a pathway to strengthen international cooperation to realize the right to health. Ensuring that global health law reconciles public health preparedness with human rights imperatives, this unprecedented public health crisis offers a unique opportunity to strengthen WHO authorities to coordinate pandemic preparedness and ensure global solidarity through global governance.
About the Authors
Benjamin Mason Meier is a Professor of Global Health Policy at the University of North Carolina at Chapel Hill, a Senior Scholar at Georgetown University’s O’Neill Institute for National and Global Health Law, and the Human Rights Chair of the Global Health Law Consortium. Dr. Meier’s interdisciplinary research—at the intersection global health, international law, and public policy—examines rights-based approaches to health. In advancing human rights in global health governance, he is an editor of Human Rights in Global Health: Rights-Based Governance in a Globalizing World (Oxford 2018), Foundations of Global Health & Human Rights (Oxford 2020), and a quarterly column on Global Health Law in the Journal of Law, Medicine & Ethics (Cambridge 2020/2021). He tweets @BenjaminMMeier
Sonam K. Shah is a JD and MPH candidate at the University of North Carolina School of Law and the Gillings School of Global Public Health. She works as a staff member on the North Carolina Law Review and as a research assistant for Professor Meier, with her research focusing on issues of global health law and global health governance in the COVID-19 pandemic response. She tweets @sonams16.