By Roojin Habibi, Timothy Fish Hodgson, and Alicia Ely Yamin
Today, as the world transitions from living in the grips of a novel coronavirus to living with an entrenched, widespread infectious disease known as COVID-19, global appreciation for the human rights implications of public health crises are once again rapidly fading from view.
Against the backdrop of this burgeoning collective amnesia, a project to articulate the human rights norms relevant to public health emergencies led to the development of the 2023 Principles and Guidelines on Human Rights and Public Health Emergencies (the Principles).
This symposium gathers reflections from leading scholars, activists, jurists, and others from around the world with respect to the recently issued Principles.
Launched by the Global Health Law Consortium and the International Commission of Jurists during the 76th World Health Assembly, the Principles were developed through a three-year deliberative process between more than 150 individuals from around the world, including international legal scholars and practitioners, human rights defenders, civil society advocates, public health researchers, health workers, and others bearing relevant insights and expertise.
Recalling the increasing recurrence of public health emergencies over the past century and contemplating the possibility of the continued proliferation of emergencies, the Principles clarify human rights law obligations and standards applicable in prevention of, preparation for, response to, and recovery from, such emergencies. In so doing, the Principles take a broad view of what might constitute a “public health emergency,” recognizing that while such crises may vary in scope and in nature, safeguarding human rights remains not only a legal obligation, but vital to an effective and equitable public health emergency response.
Historically, Global Health Law has been permeated with colonialism and concerned with preserving travel and trade rather than protecting human dignity, health and life. Despite more than a century-long existence, for instance, the World Health Organization’s (WHO’s) International Health Regulations only began to incorporate references to human rights in their text as recently as their 2005 iteration and even then engaged with the subject matter in broad strokes.
As recently as the 2023 UN High Level meetings, the adopted text of the political declaration on pandemic preparedness shied away from a mainstreaming of human rights considerations, and instead, steadfastly affirmed the moral equivalence between corporate interests, incentives, and intellectual property rights and human rights in pandemic preparedness.
Experience should have impressed on State representatives — and indeed individuals throughout the world more generally — a different understanding of what is at stake when human rights are neglected in public health emergency planning. More than four decades ago, the HIV pandemic triggered a global reckoning with the inextricable ways that health and human rights are linked. When public health measures are designed and implemented with human dignity, rights and the rule of law at their core, they stand a greater chance of succeeding. In turn, public health measures that are grounded in the best available evidence are more likely to secure the protection of human rights, including the rights to life and to the highest attainable standard of physical and mental health.
The Principles are firmly grounded in legally binding sources of international law and supplemented by authoritative sources, which, while not yet necessarily reflecting binding obligations for all States carry increasing weight in determining States obligations. They moreover build on existing interpretations of international law in times of emergency and exception, such as the Siracusa Principles on Limitations and Derogations Rights Provisions of the International Covenant on Civil and Political Rights (Siracusa Principles), developed by the International Commission of Jurists more than 35 years ago.
Importantly, however, the Principles go beyond a crisis frame. Spanning 28 interrelated provisions, they acknowledge that the impact of a public health emergency depends on how ready and resilient health systems are in “ordinary” times — at international, regional, and national levels. In other words, we must think of preparedness for (inevitable) future emergencies in terms of human rights. Without efforts to prevent and prepare, drastic measures to respond to public health threats — measures that are more likely to restrict human rights — may become necessary.
Some of the key areas of ambiguity and tension in international human rights law that the Principles engage with include:
- Further delineating obligations of private actors in the context of public health emergencies, especially private health care providers and insurers, and manufacturers of health goods, facilities, and technologies;
- Obligations to realize economic, social, and cultural rights in ordinary times to mitigate the occurrence and effects of crisis, as well as sustaining protections for those rights during emergencies;
- The crucial roles of social deliberation, participation, and trust in the design and uptake of public health policies and measures that inevitably require balancing and trade-offs; and
- The nuances of assessing necessity and proportionality during a rapidly evolving emergency triggered by novel pathogens.
The Principles come at an important time, as we mark the 75th anniversary of WHO’s Constitution and of the Universal Declaration of Human Rights. We value these instruments more than ever, as they established the international recognition of the right to health and health-related rights that have set the foundation of so many struggles for rights and dignity in past public health crises.
Building on that 75-year history, the Principles can serve as a basis for developing and improving policies and guidelines that will make future responses to public health emergencies more rights-based. Moreover, the Principles can equip civil society, jurists, and others with the tools to hold their governments and powerful corporate entities accountable to the standards set by human rights. The current reforms of global health law — including amendments to the IHR and negotiations for a new pandemic accord — are an immediate entry point. But the Principles bear relevance and were developed for all levels of governance in mind. Indeed they have already found their way in a resolution of the Council of Europe’s Parliamentary Assembly.
Ultimately, the Principles provide a roadmap to a world where human rights and public health are aligned and mutually reinforcing. They present an opportunity for robust discussions from a diverse array of perspectives, breathing life into the notion of “rights-based approaches to public health emergencies.” We hope that this Symposium brings together the first in a series of such conversations, and that many more take place in the future. The full text of the Principles and Guidelines on Human Rights and Public Health Emergencies can be accessed here.
Roojin Habibi is an Assistant Professor at the University of Ottawa’s Faculty of Law (Common Law Section), a Senior Visiting Fellow of the United Nations University’s International Institute for Global Health, and a Research Fellow of the Global Strategy Lab based at York University and the University of Ottawa.
Timothy Fish Hodgson is a legal adviser on economic, social and cultural rights at the International Commission of Jurists (Africa).
Alicia Ely Yamin is a Lecturer on Law and the Senior Fellow on Global Health and Rights at the Petrie-Flom Center for Health Law Policy, Biotechnology and Bioethics at Harvard Law School; and a Senior Advisor on Human Rights and Health Policy at Partners In Health.