Society or population, social diversity. Flat cartoon vector illustration.

The Right to Participation in Global Health Governance: Lessons Learned

This post was originally published on the Verfassungsblog as part of our joint symposium on international pandemic lawmaking.

By Sara (Meg) Davis, Mike Podmore, and Courtenay Howe

What should the role of those most affected by pandemics be in future pandemic governance and co-ordination mechanisms?

Drawing on human rights standards and principles, and on existing structures in the HIV, TB and malaria sectors, we argue that the human right to participation should extend to permanent seats and votes for civil society and affected communities on governance boards.* Our argument is informed by an analysis by STOPAIDS, Aidsfonds, CSSN and Frontline AIDS, by consultations led by STOPAIDS, and by the examples of the Global Fund to Fight AIDS, TB and Malaria (“the Global Fund”), Unitaid, and the Access to Covid Technologies-Accelerator (ACT-A).

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Linking entities.

A Shared Responsibility Model

This post was originally published on the Verfassungsblog as part of our joint symposium on international pandemic lawmaking.

By Sharon Bassan

Piecemeal and fragmented policymaking during COVID-19 underscored the need for an equity-focused global health agenda. Several international health law mechanisms, such as the International Health Regulations (IHR) and “soft law” frameworks, try to bring together relevant stakeholders to the table, help ensure international sharing of medical information, and facilitate equitable distribution of the benefits of research in developing vaccines and therapeutics. Nevertheless, their application during COVID-19 did not result in an effective global governance. Most responses were nationally-focused, lacked global commitment and solidarity, failed to notify the WHO of novel outbreaks, and were non-compliant with its professional recommendations.

Many agree that the solution should be multileveled and structural­ — a result of the connection and cooperation between participants. The prism of the “shared responsibility model” provides an interesting opportunity to consider potential global health governance models for emergency actions. My refined version of the model is based on Iris Young and Christian Barry’s suggested models, and includes two pairs of parameters, engaging and assigning. Engaging parameters locate the involved actors, and explain why they are assigned responsibilities. Assigning parameters address the type of duties each actor bears, and the site where they are expected to take action.

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Vial and syringe.

Addressing IP Barriers in the Context of a Pandemic Treaty

This post was originally published on the Verfassungsblog as part of our joint symposium on international pandemic lawmaking.

By Paul Ogendi

Tackling the question of how to address the needs for sharing scientific research, pooling technology, and know-how in diagnostics, therapeutics, and potential vaccines in future epidemics is fundamental to any pandemic treaty discussion. Moreover, we also need to consider how such a treaty might address potential conflicts with the Trade Related Intellectual Property Rights (TRIPS) agreement.

First of all, market-based solutions do not work in the context of global pandemics as has been demonstrated in the COVID-19 pandemic that is currently ravaging the world. Market-based solutions demand putting too much faith in the private sector, both in terms of capacity (supply chains, etc.) and in terms of equity. By relying on the private sector in the context of COVID-19, many countries are struggling to secure adequate personal protective equipment, testing kits, and more importantly life-saving vaccines.

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Illustration of multicolored profiles. An overlay of strings of ones and zeroes is visible

Taking Data Sharing Seriously: Public Interest and Solidarity as Principles for an International Pandemic Treaty

This post was originally published on the Verfassungsblog as part of our joint symposium on international pandemic lawmaking.

By Ciara Staunton and Deborah Mascalzoni

COVID-19 demonstrated the interconnectedness of the world and that our collective protection and well-being is contingent on our individual response. The importance of solidarity and acting in the public interest became key messages in public health, as too were these principles justified as the basis for data-sharing across borders. Accessing this data was critical and its timely access to this data was essential in research for the much-needed new vaccines.

Solidarity can be understood as the commitment to carry costs to assist others. In the same way that we were told to keep away from loved ones (the cost) to stop the spread of the virus (to assist others), individuals were encouraged to share their data with researchers and in turn researchers were encouraged to share their data with other researchers (the cost) to develop vaccines (to assist) for the global collective benefit (others). The response was remarkable. Data sharing became the default (the cost), vaccines were rapidly developed (to assist), but herein the solidarity pathway stopped. Access was (and still is) largely driven by national and private interests rather than the global collective benefit.

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Scales of justice and gavel on table.

Limiting Human Rights During Pandemics: Recommendations for Closing Reporting Gaps and Increasing International Oversight

This post was originally published on the Verfassungsblog as part of our joint symposium on international pandemic lawmaking.

By Cassandra Emmons

Sovereign governments have the prerogative to declare states of emergency when sudden, unanticipated events threaten the lives of the nation and its people. In so doing, government decrees sometimes must contradict other international human rights commitments, balancing the individual versus the collective. Established derogation procedures are supposed to ensure such restrictions are proportionate, non-discriminatory, and last only as long as necessary (for an overview, see Emmons 2020). COVID-19 has proven that public health emergencies are not equally recognized in either international law or national constitutions; some international treaties permit “limiting” rights in the name of public health rather than requiring derogation, and nationally some governments authorize emergency measures in practice without ever doing so in name. These parallel processes and conceptual gaps create space for governments to restrict individuals’ rights with little to no international accountability during pandemics.

In this piece, I recommend a new international instrument on pandemic response be explicit about reporting requirements when governments suspend rights during such emergencies. These suggestions incorporate advice from the American Association for the International Commission of Jurists’ Siracusa Principles on the Limitation and Derogation Provisions in the International Covenant on Civil and Political Rights (1985), the International Law Association’s Queensland Guidelines for Bodies Monitoring Respect for Human Rights during States of Emergency (1990), case law of the European Court of Human Rights (ECtHR), and learned experience from the COVID-19 pandemic.

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Globe.

Killing Locally or Killing Globally? Inequalities in Framing Cooperation Through Pandemics

This post was originally published on the Verfassungsblog as part of our joint symposium on international pandemic lawmaking.

By Luciano Bottini Filho

COVID-19 made “pandemic” a buzzword. The world expressed anxiety on the eve of a pandemic declaration from the WHO, a decision monitored as closely as the white smoke for a newly elected pope. Yet, “pandemic” has no legal value in international law by contrast with a declaration of public health emergency of international concern (PHEIC). It is no accident that the 12th Commission of the Institute of International Law issued a report on Epidemics and International Law, which bluntly avoided the term pandemic.

Despite this, for the general public, the role of a PHEIC determination remains unknown. Given the inconsistency in declaring PHEIC (only 6 events between 2007 and 2020), many epidemics of considerable proportion were ignored by the international community. Yet the mismatch in the general public consciousness regarding the legal implications triggered by a WHO declaration of a PHEIC is not as problematic as the way lawyers and public health practitioners reinforce the centrality of a pandemic, a concept that still requires a more solid definition.

As an international instrument potentially moves forward to galvanize “pandemics” as a legally defined term — and part of global health governance — we must understand the implication that this word has in relation to disparities between developing countries‘ problems and the interests of their richer counterparts. After all, any pandemic would have originated from one or more national epidemics, but it would require a globally recognized procedure to trigger stronger international obligations. As opposed to pandemics, though, epidemics have persisted for decades and raged in low- and low-middle income settings from Zika to Ebola, demanding support from international actors.

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Globalization concept illustration.

Human Rights and Global Responses to the Pandemic in the Age of Hyper-globalization

This post was originally published on the Verfassungsblog as part of our joint symposium on international pandemic lawmaking.

By Sakiko Fukuda-Parr

In 1999, the Human Development Report called for stronger international arrangements to govern people in a globalized world, stating: “the present era of globalization, driven by competitive global markets, is outpacing the governance of markets and the repercussions on people…. An essential aspect of global governance is responsibility to people – to equity, to justice, and to enlarging the choices of all.” As the 21st century sped into an era of hyper-globalization, new global institutions are urgently needed to protect the public interest. The architecture of global health emergencies is a case in point. Its core agreement, the International Health Regulations (2005) (IHR) remains state centric, catering to national interests, bound to colonial epistemic frameworks, and silent on market power that can trample on human rights. The age of hyper-globalization requires global institutions that enable global – collective – responses to contain pandemics worldwide, that build on international solidarity and human rights norms, and structures that break free from North-South hierarchies of power and knowledge.

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Researcher works at a lab bench

Governance Needs for Pandemic Preparedness and Response: How to Ensure the Science-Policy Interface

This post was originally published on the Verfassungsblog as part of our joint symposium on international pandemic lawmaking.

By Gian Luca Burci

The COVID-19 pandemic has been characterized by mistrust in science, the manipulation of science for political purposes, the “infodemic” of mis- and disinformation, and a repeated failure to base policy decisions on scientific findings.

The crisis of confidence in scientific analysis is paradoxical and disquieting, particularly in light of increasing international regulation to manage acute or systemic risks and its reliance on science.  This so-called “science-policy interface” (SPI) incorporates scientific expertise into global policy-making and regulation in fields as diverse as climate change, biodiversity, and nuclear safety, but it is arguably less developed in global health and in particular for pandemic preparedness and response (PPR).

As international policymakers consider various proposals aimed at preventing another pandemic through better and stronger global rules — whether in the form of a WHO “pandemic treaty,” revised International Health Regulations, a UN political declaration, or regulatory framework — the integration of SPI in their design will be of crucial importance for their credibility and effectiveness.

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WHO flag.

Can a Pandemic Lawmaking Exercise Promote Global Health Justice? — Final Symposium Editorial

By Alicia Ely Yamin, on behalf of the editors*

Leer en español.

Lire en français.

Amid the unfolding “moral catastrophe” of COVID-19, and across the entries in this symposium, we see a clamor for any pandemic law-making exercise to promote more justice in global health.

However, this universally-embraced imperative masks a wide array of divergent views about the nature and sources of inequalities in global health, and in turn what should be done if we were to think beyond a narrow pragmatism of the moment.

In this final editorial, we attempt to surface some of the critical contestations that underlie any future pandemic treaty or revisions of the International Health Regulations (IHR).

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Compass on a tree stump.

From Cooperation to Solidarity: A Legal Compass for Pandemic Lawmaking

By Guillermo E. Estrada Adán

Leer en español.

This post proposes incorporating solidarity as a legal compass for international norms in a new international pandemic law agreement or reform.

The current model of global health governance espoused by the World Health Organization (WHO), based heavily on cooperation between states, has significant shortcomings. An approach that relies on solidarity, rather than cooperation, would better advance states’ responsibilities to ensure the protection and enjoyment of each individual’s rights. Read More