By Benjamin Mason Meier, Judith Bueno de Mesquita, and Sharifah Sekalala
Rising nationalism has presented obstacles to global solidarity in the COVID-19 pandemic response, undermining the realization of the right to health throughout the world.
These nationalist challenges raise an imperative to understand the evolving role of human rights in global health governance as a foundation to advance extraterritorial human rights obligations under global health law.
This contribution examines these extraterritorial obligations of assistance and cooperation, proposing human rights obligations to support global solidarity through the prospective pandemic treaty.
1. Limitations of Global Solidarity in the COVID-19 Response
Global governance is central to the advancement of human rights in global health.
Although the World Health Organization (WHO) long neglected human rights in global health governance, WHO has increasingly assumed obligations to implement human rights under a United Nations (UN) mandate to mainstream human rights throughout global governance, including in the global response to infectious disease.
WHO secured the incorporation of human rights in the 2005 revision of the International Health Regulations (IHR), with States recognizing that “implementation of these Regulations shall be with full respect for the dignity, human rights and fundamental freedoms of persons.” These efforts provided a legal foundation to align global health law with human rights law, harmonizing treaty interpretation across legal regimes.
Drawing from these human rights foundations of infectious disease governance, the UN immediately saw COVID-19 as a human rights crisis. A range of UN institutions released human rights guidance on COVID-19, providing necessary frameworks for pandemic responses across States and international organizations. This human rights guidance embraced not only domestic obligations, but also extraterritorial obligations, framing international cooperation in the COVID-19 response, coordination in sharing health resources, and collaboration to reduce economic and social impacts.
However, these extraterritorial human rights obligations have not been implemented in global health governance, with WHO instead pleading for “global solidarity” as a moral responsibility, charitable imperative, and means to collective self-interest. While facing nationalist opposition to WHO guidance and global inequalities in vaccine distribution, WHO has repeatedly implored that “health is a human right,” but has stopped short of invoking extraterritorial obligations of international assistance and cooperation.
Through the implementation of human rights, WHO has an opportunity to advance extraterritorial obligations under the right to health as an international legal basis for global solidarity.
2. Evolving Extraterritorial Obligations Under Human Rights Law
Extraterritorial human rights obligations speak to State acts or omissions that affect human rights beyond their territory, providing a human rights framework to structure international assistance and cooperation. Positing legal obligations beyond national borders — conceptualizing international assistance not as a voluntary, charitable gesture, but rather as a binding form of reparative and distributive justice to rectify past and ongoing structural harms — States have codified extraterritorial obligations under international human rights law.
These extraterritorial obligations complement States’ domestic obligations, recognizing that the enjoyment of human rights in a globalizing world is often determined by actors beyond the territory of a State, including other States, international organizations, and multinational corporations.
As a framework for global governance, extraterritorial obligations include obligations of a global character – to take action jointly through international organizations. The 1948 Universal Declaration of Human Rights first acknowledged a human rights imperative for international cooperation, declaring that “everyone is entitled to a social and international order in which the rights and freedoms set forth in this Declaration can be fully realized.” States codified this obligation under the 1966 International Covenant on Economic, Social, and Cultural Rights, requiring every State “to take steps individually and through international assistance and cooperation, especially economic and technical, to the maximum of its available resources…”
Through this grounding in international law, extraterritorial obligations provide a binding framework for global health governance to progressively realize the right to health.
Yet, while these health-related extraterritorial obligations have evolved under human rights law, they have found limited application under global health law. States have developed only broad declaratory language on international assistance and cooperation in the World Health Assembly. Leaving States without clear guidance, the IHR obligate States to “undertake to collaborate with each other,” but the relationship between these IHR obligations and human rights obligations remains unclear.
As a result, the meaning of collaboration has been left to State interpretation. Without oversight procedures to review State compliance with global health law, WHO has limited authority to clarify these obligations and hold States to account.
3. Codifying Extraterritorial Human Rights Obligations in Global Health Governance through a Pandemic Treaty
The codification of extraterritorial obligations through a pandemic treaty would provide a pathway to strengthen international cooperation to realize the right to health in global health governance.
Even as high-income States in the Global North have challenged the framing of international cooperation as a legal obligation, States in the Global South have emphasized the centrality of such obligations to the universal realization of human rights. These extraterritorial obligations would allow States in the Global South to enter global health negotiations not merely with a plea for charity, but with a right to assistance and cooperation through global health governance.
Mainstreaming extraterritorial obligations in the pandemic treaty would provide international commitments under global health law and facilitate, through proposed institutional oversight mechanisms, accountability for global solidarity.
The right to health can provide the normative basis for negotiations on the pandemic treaty. Clarifying extraterritorial obligations under the right to health, the UN Committee on Economic, Social and Cultural Rights (CESCR) reiterated in 2000 that “it is particularly incumbent on States parties and other actors in a position to assist, to provide ‘international assistance and cooperation, especially economic and technical’” to support States in realizing the right to health. In the context of the COVID-19 pandemic, the CESCR and UN Special Rapporteur on the right to health have repeatedly recognized that global governance is necessary to realize the right to health, clarifying extraterritorial obligations to cooperate with WHO.
These obligations require that States implement the right to health through their engagement with WHO, implementing extraterritorial obligations through global health governance.
The pandemic treaty provides a path to advance human rights in global health law by strengthening extraterritorial obligations. A new pandemic treaty can recognize extraterritorial obligations under the right to health by:
- prioritizing support for low-income States in the Global South;
- cooperating through WHO in coordinating pandemic responses;
- regulating pharmaceutical companies to secure equitable vaccine access; and
- facilitating accountability through complementary monitoring and review mechanisms under WHO and the UN human rights system.
In overcoming nationalist challenges to global health governance, the pandemic treaty can structure global solidarity through extraterritorial obligations, aligning global health law and human rights law in meeting the challenges ahead.
Benjamin Mason Meier is a Professor of Global Health Policy at UNC-Chapel Hill.
Judith Bueno de Mesquita is a Lecturer and Co-Deputy Director of the Human Rights Centre in the School of Law and Human Rights Centre at the University of Essex.
Sharifah Sekalala is a Reader/Associate Professor in Global Health Law at the University of Warwick.