By Anne Kjersti Befring and Cecilia Marcela Bailliet
The COVID-19 pandemic posed a grave threat to humanity and revealed the need for a new approach to improve transnational cooperation within the global health system and new perspectives on solidarity addressing the cross-border spread of infection and distribution of vaccines.
The Principles and Guidelines on Human Rights and Public Health Emergencies (“the Principles”), developed by the Global Health Law Consortium and the International Commission of Jurists, set forth a human rights-based solidarity approach that can provide a basis for implementing the obligations of States and responsibilities of Non-State actors to achieve the goal of limiting the harmful effects of serious health crises.
- Human Rights and Solidarity: The Case of COVID Vaccines
The Principles and Guidelines refer to the principle of solidarity as applying individually and collectively to both state and non-state actors (see article 2). In the context of a public health emergency, States have the duty to ensure that all individuals can, on the basis of equality and non-discrimination, participate meaningfully in, contribute to, and enjoy a social and international order in which their human rights can be fully realized.
During the COVID-19 pandemic, vaccine production and distribution provided a particularly stark example of the challenges to solidarity. Global financing for low-income and middle-income countries (LMICs), as classified by the World Bank, and equitable distribution of vaccines, global supplies and equitable distribution of key commodities – including protective equipment, diagnostics, medicines, medical equipment, proved to be a major challenge. Pharmaceutical companies were able to develop pandemic vaccines at a faster pace than before, but the distribution of vaccines between countries was not based on actual needs.
- Solidarity in the Principles
Experience from the COVID-19 pandemic and previous pandemics demonstrate the inter-dependence between countries and the increased risk of failure of the international community to act in solidarity. The mutual dependence between countries to fulfill human rights is reflected in the Principles.
For example, in Article 2.2, the principles encourage international cooperation, “including measures for technical and economic cooperation, and equitable access to health goods, facilities, services and technologies.” The ability to limit the spread of epidemics and other health threats requires cooperation between countries to monitor and report on health threats. The World Health Organizations (WHO) agreements are central in this context.” Moreover, Article 2.4 of the Principles indicates that “Non-State actors, including those whose activities have extraterritorial effects, have a responsibility to refrain from impeding international solidarity efforts.” This can apply to both the fair distribution of vaccines and protective equipment. Article 25. 2 articulates a positive obligation for States to: “remove or limit, through appropriate temporary or permanent measures, legal or non-legal barriers to the equitable access to health goods, facilities, services and technologies that are necessary for PPRR. . . Such measures may include: a. the adoption of technology transfer agreements; b. emergency use agreements; c. other information sharing agreements and other arrangements for the just and equitable sharing of data and health goods, facilities, services and technologies; and d. by collaboratively setting up capacities and infrastructure for PPRR.”
- The Draft Declaration on the Right to International Solidarity and its Added Normative Value in Relation to the Principles
In harmony with the Principles is the recently revised Draft Declaration on the Right to International Solidarity from the UN Independent Expert on the Right to International Solidarity. This Declaration aims to provide a framework for network solidarity policies and actions among States, International Organizations, NGOs, Companies, and civil society actors in order to prevent and respond to global challenges, including health emergencies (see A/HRC/53/32: Revised draft declaration on human rights and international solidarity – Report of the Independent Expert on human rights and international solidarity, Obiora Chinedu Okafo, Article 2).
Article 6 sets forth the duty of States to respect, protect, and fulfill the right to international solidarity, while International Organizations and Non-State Actors have the duty to respect the right to international solidarity. According to Article 8: “States may give full effect to the right to international solidarity by adopting legislative, administrative, budgetary or other measures. States and non-State actors can pursue solidarity agreements to facilitate access to technology, financing and infrastructure. States and international organizations should create indicators to measure the impact of transnational solidarity actions and deliver reports to the universal periodic review.” The Independent Expert on Human Rights and International Solidarity issued a report on Global Vaccine Solidarity and Human Rights in the Context of the Coronavirus disease (COVID-19) pandemic in which he recommended that States and other relevant actors “urgently develop legislative and/or administrative solutions to end the monetization of COVID-19 disinformation, to refrain from taking any measures (such as export bans) that impose a disproportionately negative impact on equitable access to vaccines around the world, and to prioritize the protective coordination, support, and reinforcement of WHO-led global vaccine solidarity initiatives, such as COVAX facility, and fully support the proposal before the to allow all states that are able, especially lower-income countries to manufacture and use already developed COVID-19 vaccines without being subject to restrictions within intellectual property. (See here.) States would be able to file best practices reports to the UPR.
Hence, the Draft Declaration on the Right to Solidarity and the Principles are complementary and may provide a strengthened framework to promote implementation of solidarity strategies in the realm of health emergencies.
- Global Health Solidarity Through the Rule of Law – Filling the Gaps
A rule of law approach involves the protection of human rights and public health through legality and legal certainty. An essential part of the law in a modern society consists of legislation passed by democratically elected authorities (laws) and delegated legislation by the administration (regulations). EU legislation has gradually become more important in the field of health for member states and has recently adopted a regulation that obliges countries to help limit cross-border health crises but are limited in these contexts as they only regulate EU countries (see Helseretten, ch. 2.2.4 and Tradisjonelle smitteverntiltak, ch. 4,5.).
In line with this type of approach, it is clear that a global health crisis must be handled with global standards. WHO is working on a separate treaty that will oblige countries to handle more effectively health crises and also supports a revision of the international health regulations. However, strong tensions between China, Russia and the Western world about the war in Ukraine and also about blame for the COVID-19 pandemic may weaken the possibility of further developing legal instruments in this context.
Common understanding of the seriousness of the crisis brought on by COVID-19 and threatened by future public health emergencies and agreement on principles and standards can be a basis for countries striving to establish common practices. Critically, the Principles operationalize key human rights into concrete duties for states in connection with a pandemic.
The need for learning and continuity in the realization of positive human rights obligations in connection with public health crises is emphasized in the Principles. In doing so, they expand the focus beyond public health as a permissible reason for human rights derogation or limitation in emergency situations. Global innovation and the spread of new therapies should be supported and disseminated in a fair and efficient way. The experience of the COVID-19 pandemic in terms of the transmission of infection between countries and challenges in achieving a fair distribution of vaccines should be used in further work to develop common driving rules.
Anne Kjersti Befring is a Professor of Law at the University of Oslo.
Cecilia Marcela Bailliet is a Professor of Law and Director of the Masters Program in International Law at the University of Oslo. She is the UN Independent Expert on Human Rights and International Solidarity.