Do Not Leave Human Rights Behind in the WHO Pandemic Agreement.
A briefing for Member States from the Civil Society Alliance for Human Rights in the Pandemic Treaty.
The Negotiating Text states that “the objective of the WHO Pandemic Agreement, guided by equity, the right to health and the principles and approaches set forth herein, is to prevent, prepare for and respond to pandemics, with the aim of comprehensively and effectively addressing the systemic gaps and challenges that exist in these areas, at national, regional and international levels.”
The COVID-19 pandemic has demonstrated that the right to health, the first binding right enshrined in the WHO Constitution, is pivotal to all aspects of effective pandemic prevention, preparedness and response (PPPR). The right to health is inseparable from equity as a central pillar and objective of the WHO negotiations. It is the key to building more resilient and inclusive health systems and societies that are better able to prevent, prepare for, respond to, and recover from pandemics.
To deliver on its core objective, the Pandemic Agreement must be fully aligned with, and not diminish or impair, Member States’ existing human rights obligations under the WHO Constitution and other human rights instruments, and clearly set out Parties’ right to health and associated human rights obligations in its substantive provisions.
While initial drafts of the Pandemic Agreement contained strong provisions on human rights, the INB has repeatedly weakened human rights language and proposals at various points in the negotiating process. The current Negotiating Text fails to mainstream human rights across the text, stepping back from previous INB advancements and neglecting crucial opportunities to recognize the inextricable linkages between human rights and public health.
The upcoming INB negotiations provide a crucial opportunity to redress the weakening of human rights language and provisions in the Pandemic Agreement to ensure that it will be fit for purpose in future pandemics. To avoid the abandonment of human rights, there is a need to revise the Negotiating text to advance (1) the right to health as central to PPPR, (2) the human rights-based approach in pandemic responses, (3) the proportionality of human rights restrictions to protect public health, and (4) the imperative for international assistance and global solidarity.
1. Right to Health
The right to health remains part of the “objective and scope” (art. 2) of the Negotiating Text; however, the relationship between the right to health and Pandemic Agreement obligations is no longer clear. The Pandemic Treaty can recognize the centrality of the right to health in global health governance and the legal foundations of that right under international law by detailing the “right to the highest attainable standard of health” as a distinct “general principle” of the Pandemic Treaty (art. 3), with this provision specifically providing a legal foundation to ensure the “availability, accessibility, acceptability, and quality” of health care and underlying determinants of health.
In realizing the right to health in line with the definition of health in the WHO Constitution, the definition of “persons in vulnerable situations” (art. 1(i), 3.3 and 17.6) should also be expanded to reflect the indivisibility of the right to health and other associated human rights, incorporating individuals, groups, or communities with a disproportionate increased risk of infection, severity, disease or mortality or other harms impacting on the right to health, including vulnerability due to discrimination. Additionally, provisions setting out PPPR at the national level (arts. 6, 16 and 17) should reflect the close interdependence of the right to health upon the realization of other human rights, including provisions to ensure holistic responses to the multifaceted consequences of pandemics impacting on the right to health, including the rights to food, housing, work, education, human dignity, life, non-discrimination and equality.
2. Human Rights-Based Approach to Health
The Negotiating Text includes “respect for human rights” as a “general principle” (art. 3); however, this language should refer to the “full realization” of human rights – instead of “respect” – encompassing the obligation under international human rights law to respect, protect, and fulfill rights. (This framing of obligations to “respect, protect, and fulfill human rights” is currently included only under obligations on “international collaboration and cooperation” (art. 16), but this obligation should be extended to the national level, including preparedness, readiness and resilience (art. 6) and whole-of-government and whole-of-society approaches (art. 17).)
Where negotiations on the Pandemic Agreement eliminated the discrete article on human rights (A/INB/4/3, art. 14), it will be necessary in this absence to incorporate human rights obligations of the rights-based approach to health:
(a) Non-Discrimination and Equality – expanding the General Principles (art. 3) related to equity – to consider the “structural challenges” that prevent “Equity” and reintroduce the separate principle on “non-discrimination and respect for diversity” (including intersectional discrimination).
(b) Participation – adding new provisions for civil society participation in the Guiding Principles (art. 3) and International Collaboration and Cooperation (art. 16) – providing that governance mechanisms include “participation of affected persons and community-led organizations.”
(c) Transparency – ensuring that efforts to strengthen Communication and Public Awareness (art. 18) increase public health literacy through “timely and equitable access to information on pandemics” (considering cultural barriers and digital divides) and government efforts to “address misinformation and disinformation” (through international cooperation).
(d) Accountability – providing that efforts to establish a peer-review monitoring mechanism as part of Preparedness Monitoring and Functional Reviews (art. 8) enhance human rights accountability by “considering recommendations provided by human rights monitoring mechanisms, especially in relation to the right to health.”
3. Proportionality of Human Rights Restrictions
There are clear standards under human rights law for permissible limitations of or derogations from human rights in times of public health emergencies; however, the Negotiating Text deleted previous recognition of human rights limitations and derogation standards (A/INB/4/3, art. 14). This human rights provision should be reintroduced as a basis to harmonize restrictions of human rights in pandemic responses with guidelines developed under human rights law. As a minimal way of addressing this absence of guidance on human rights limitations, the concept of “proportionality” under the General Principles (art. 3) should explicitly include reference to human rights (“…in a manner consistent with Article 2 of the International Health Regulations and international human rights law”) and affirm that the application of proportionality exists alongside the principles of legality and necessity.
4. International Assistance & Global Solidarity
As international human rights law obligates states to take steps through collective action towards the full realization of human rights, the Pandemic Agreement can ensure human rights obligations of “international assistance and cooperation” by (a) including “extraterritorial obligations” under the right to health, looking (under art. 3) to “individual and collective action” to promote human rights through “global solidarity;” (b) include human rights obligations to be considered in efforts to ensure transfer of technology (art. 11), prioritizing the right to health over intellectual property obligations that hinder equitable access to diagnostics and therapeutics; and (c) support “extraterritorial” human rights obligations (art. 16(2)(c)) as a basis for “international collaboration and cooperation.”
The Pandemic Agreement provides new opportunities for strengthening human rights obligations under global health law. While the obligations of international human rights law remain essential across the Pandemic Agreement—with universal human rights obligations providing a common foundation for our collective response to future pandemic threats—the coming negotiations will determine the future of human rights in global health.