Strasbourg, France - April 13, 2018: the Hemicycle of the Parliamentary Assembly of the Council of Europe, PACE.

The Parliamentary Assembly of the Council of Europe: Responding to Public Health Emergencies by Upholding Human Rights, Democracy, and the Rule of Law

By Anita Gholami

The Parliamentary Assembly of the Council of Europe, which brings together parliamentarians from 46 member States, has been a vigilant guardian of respect for the European Convention on Human Rights and other international standards throughout the COVID-19 pandemic. The Assembly has adopted a number of resolutions and recommendations seeking to equip parliaments in our European member States and beyond with the relevant tools and expertise to uphold human rights, democracy and the rule of law. It has been an important forum for enabling States to address the fault lines in national public health systems, bridge gaps in global health security and policy, and strengthen collective efforts to build back better.

In June 2023, the Assembly adopted Resolution 2500 (2023) on “Public health emergency: the need for a holistic approach to multilateralism and health care.” The report supports the ongoing processes taking place at the international level to transform global health governance. It considers that States must build on the principles of equity and the protection of human rights and fundamental freedoms during public health emergencies, and thus makes specific and productive reference to the Principles and Guidelines on Human Rights and Public Health Emergencies (“the Principles”).

Read More

hospital equipment

Scarcity Is Not an Excuse to Discriminate: Age and Disability in Health Care Rationing

By Silvia Serrano Guzmán

On July 4, 2023 the Constitutional Court of Colombia handed down a landmark decision on one of the most difficult dilemmas faced during the COVID-19 pandemic: the rationing of intensive care in situations of scarcity. Although the need for prioritization was a reality almost globally, many countries had no such regulation in place, which frequently led to the adoption of fragmented and discriminatory triage protocols.

The Colombian case reinforces that human rights and public health are not mutually exclusive. Importantly, this is reflected in the Principles and Guidelines on Human Rights & Public Health Emergencies (2023). Though the Principles did not exist during the litigation of the case, they will be of use in similar instances going forward, both for States working to develop human rights-compliant public health measures, as well as for courts reviewing such measures.

Read More

Person filling syringe from vial.

Public Health Emergencies and Human Rights Principles: A Solidarity Approach

By Anne Kjersti Befring and Cecilia Marcela Bailliet

  1. Introduction

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.

Read More

Group of Diverse Kids Playing in a Field Together.

Securing a Place for Children’s Rights in Public Health Emergencies

By Sheila Varadan, Ton Liefaard, and Jaap Doek

The Principles and Guidelines on Human Rights and Public Health Emergencies (Principles) make a significant contribution towards clarifying the scope of States’ legal obligations under international human rights law during public health emergencies. What is missing, however, is a specific and detailed discussion on the rights obligations and principles owed to children during public health emergencies. This leaves open the question of how States will guarantee respect for and protection of children’s rights in future public health emergencies, and what measures, if any, will be taken to ensure children are actively listened to and engaged with in the prevention of, preparedness for, and response to public health emergencies (PPRR).

Read More

scales on blue background.

Judging in the Pandemic – A Malawian Perspective

By Zione Ntaba

Malawi is not a stranger to public health crises in the last number of years, having faced a severe HIV epidemic and several cholera outbreaks continuing into 2023. Nevertheless, the onset of the COVID-19 pandemic caused a major panic in the country’s legal system and judiciary. COVID-19 brought to fruition a major ethical dilemma in ensuring the justice system’s continued functioning, while also protecting the lives of all those involved, and simultaneously ensuring the promotion and protection of human rights.

The constitutional mandate of ensuring access to justice in Malawi, a country which already struggles with effective and efficient justice delivery at the best of times, required urgent resolution, especially noting the potential of human rights violations arising from State responses to COVID-19 worldwide. Interestingly, in addition to the general need to safeguard the justice system as a whole, the pandemic itself brought before the courts issues relating to public health and human rights.

The prevailing principle in Malawi, as it is internationally, is for the judicial system to ensure that there exists an equal balance between the protection and promotion of human rights and the fair and just administration of justice. The courts in Malawi were called upon to rise above the political bureaucracy, to ensure judicial impartiality when dealing with pandemic-related issues. This was crucial in a context in which political responses to the pandemic sometimes remained unquestioned or unchallenged. However, unless these principles — of human rights and fair administration of justice — were properly upheld by the courts, sadly they may have remained in the world of the metaphysical.

It is with this context in mind that I turn to reflecting on the Principles and Guidelines on Human Rights and Public Health Emergencies (“Principles”).

Read More

Bill of Health - Gavel on mask during pandemic, class action lawsuits during pandemic

Old Dogs and New Tricks: A Case for the Principles and Guidelines on Human Rights & Public Health Emergencies

By Nerima Were and Allan Maleche

Taking into account our experiences as human rights lawyers working in Kenya during the COVID-19 pandemic, in this article we briefly analyze the Principles and Guidelines on Human Rights and Public Health Emergencies (the Principles) and make a case for their utility in guiding State measures to prepare for, prevent, and respond to future pandemics consistently with international human rights law and standards.

Read More

Globe on clean yellow background.

Reviewing Solidarity in the Principles and Guidelines on Human Rights and Public Health Emergencies

By Eduardo Arenas Catalán

The Principles and Guidelines on Human Rights and Public Health Emergencies (the Principles), entail a notable attempt to consolidate lessons learned from the COVID-19 pandemic. After the largely non-solidaristic international response to COVID-19, the Principles outline the advantages and limitations of embedding human rights discourse within the global public health machinery.

One key element that will test the Principles will be their ability to influence the measures taken, including by States, in preparing for, preventing, and responding to future public health emergencies with increased solidarity. That uncertain future aside, by incorporating critical elements of solidarity, which so far have been largely absent in the human rights corpus, these Principles strengthen the protection of human rights in international law.

Read More

Emergency department entrance.

Reflections on the United States Health Care System and the Right to Health

By Brianna da Silva Bhatia, Michele Heisler, and Christian De Vos

American health care too often fails to protect the right to health or promote health-related rights. Despite efforts to increase access to health care and to better incentivize high-quality, value-based care, the United States’ health care system remains fragmented, largely profit-based, and predominantly disease-focused rather than prevention-focused.

To design systems and policies that promote the right to health, a holistic and proactive approach is needed, one in which people, institutions, and corporations have a shared responsibility in promoting physical, mental, and social well-being. The Principles and Guidelines on Human Rights and Public Health Emergencies (the Principles), allow us to imagine a new future and help outline a path for how to get there. In this piece, we discuss how the Principles might be applied in a rights-based approach to address some of the core problems in the U.S. health care system.

Read More

gavel and old papers on grey background.

Human Rights Principles in Public Health Emergencies: From the Siracusa Principles to COVID-19 and Beyond

By Eric A. Friedman and Lawrence O. Gostin

In 1984, the United Nations Economic and Social Council (ECOSOC) adopted the Siracusa Principles, which state that restrictions on human rights must meet standards of legality, necessity, and proportionality. States must use the least restrictive means available when putting in place rights-restricting measures.

One of us (LG) was involved in the drafting of the Siracusa Principles, which have become the chief international instrument governing permissible human rights limitations during national emergencies. Yet when COVID-19 – the greatest health emergency in a century – devastated the world, the Siracusa Principles seemed unequal to the task – too narrow, including with their remit limited to civil and political rights, not sufficiently specific, and above all, without sufficient accountability.

During the pandemic phase of COVID-19, human rights violations were widespread and spanned the full gamut of rights: from arbitrary detentions and suppression of free expression, to violations of the right to health, failure to ensure sufficient food and other necessities during lockdowns, quarantines, and isolations, and woefully inadequate international cooperation and assistance, including discriminatory travel and trade restrictions.

Extensive abuses of human rights during the pandemic led international experts to draft the Principles and Guidelines on Human Rights and Public Health Emergencies (HR Principles). Firmly embedding these principles in international law and creating accountability will be critical for realizing the HR Principles’ potential.

Read More

Doctor asking patient to fill out survey before medical treatment.

Key Considerations for Patient-Reported Outcome Measures

By Sharona Hoffman

Patient-reported outcome measures (PROMs) are questionnaires that patients fill out on tablets or other computers or devices. They ask patients to check boxes in answer to questions about their symptoms, treatment effects, and ability to function physically, emotionally, and socially. They thus may solicit very sensitive information about matters such as anxiety, depression, and sexual satisfaction. To illustrate, a query might be “in the past month, how often did you have a lot of trouble falling asleep,” and the patient is asked to check “never,” “rarely,” “sometimes,” “often,” or “always.”

PROM responses can be used for purposes of clinical care, research, quality improvement, Food and Drug Administration (FDA) approval of drugs and devices, and even insurance reimbursement. For example, insurers hypothetically could decide to decline coverage of particular treatments based on PROM responses indicating that many patients find them to be unhelpful.

I first became interested in patient-reported outcome measures because of an experience my husband had. Andy has Parkinson’s disease, and one of the neurologists he saw asked him to fill out a long questionnaire on a tablet computer before each appointment. This task was difficult for Andy because he had a hand tremor, and it was stressful because Andy worried that he would not have time to complete the survey before his appointment began. Moreover, Andy’s physician never referred to his responses and appeared never to look at them. Upon investigation, I found little to no analysis of PROMs in the legal literature, so Andy and I recently published a law review article about them.

Read More