Thomas Schwarz
Executive Secretary of Medicus Mundi International
When the UN Secretary-General called COVID-19 a "pandemic of human rights abuses", he was referring primarily to certain public health responses that were abusive and violated the individual civil and political rights of many people in many countries. Certain governments have used COVID-19 as an excuse to crush dissent, silence independent reporting and press freedom, or restrict NGO activities. However, many other views argued that, quite apart from a "state power" that could affect people's rights, the pandemic also affected people's social rights in many other ways, threatening their lives and livelihoods. For example, because of the public health measures that were implemented, people became unemployed, or suffered from untreated illnesses, or were unable to move around, and so on. This infringement of our social rights affected almost everyone, and not just the "most vulnerable".
What would it take for governments, when working on pandemic preparedness and response, to respect and comply with their human rights obligations? What existing and new international legal instruments can or should provide guidance in this regard? In an attempt to curb these abusive responses to pandemics such as COVID-19, the main legal instrument available for the regulation of pandemic preparedness and response are the "International Health Regulations" (IHR), which, until very recently, have received little attention. However, in May 2022, at the World Health Assembly, a process of "specific amendments to the IHRs" was initiated, so they may be given more attention in the future. So far, IHR-related input from human rights lawyers has focused on implementing and advocating for the Siracusa Principles, which aim to "ensure that human rights protection is treated as an integral component in emergency response, rather than an obstacle".
However, since the launch of the proposal for what is being called the "Pandemic Treaty", a new international legal instrument that should serve to guide member states in the fields of pandemic prevention, preparedness and response, and with the creation at a Special Session of the World Health Assembly in 2021 of an "Intergovernmental Negotiating Body" related to the Pandemic Treaty, the eyes of all human rights advocates have been on this Pandemic Treaty proposal and its drafting process.
For this reason, early in this process, a mixed group of human rights and global health advocates asserted that "human rights must underpin any pandemic treaty" and began to disseminate and promote a set of ten "Human Rights Principles for a Pandemic Treaty". More directly related to the Intergovernmental Negotiating Body, civil society organisations began to work together and have created the "Civil Society Alliance for Human Rights in the Pandemic Treaty (CSA)", with the aim of participating and having a common voice in this instrument. Since then, various civil society groups have been engaged in a two-pronged activism that seeks, on the one hand, to ensure that solutions involve "meaningful engagement with civil society" and, at the same time, that "human rights are at the heart of the Pandemic Treaty". These groups have launched various public initiatives and contacted the UN High Commissioner for Human Rights for support.
At first glance, it would appear that human rights advocacy has attracted considerable attention at the WHO's Intergovernmental Negotiating Body. Its report on the results of a first round of public hearings in April 2022 notes that "the majority of submissions called for human rights to be respected in the process of drafting and negotiating a convention, agreement or other international instrument, including among others, the right to bodily autonomy through informed consent, freedom of information, freedom from discrimination and freedom to choose medical interventions".
Since then, "respect for human rights" along with the "right to health" have made their way into these instruments, but only as a vaguely defined principle and general obligation in the two preliminary documents of the Intergovernmental Negotiating Body: a "preliminary annotated draft" (June 2022) and a first "working draft" (July 2022). However, human rights have not yet been brought to bear on the more operational aspect, the list of 14 issues enumerated and described in more detail in "specific provisions, areas, components or obligations" in the working draft.
Thus, the Intergovernmental Negotiating Body is still a long way from respecting the notion that an international pandemic treaty must focus on human rights. This is not particularly surprising, if one looks at the discussions, and even the very notion of "human rights", as expressed in many debates and decisions regarding the UN's human rights institutions. On the whole, there is little hope that the ten principles proposed within the framework of human rights will be systematically and explicitly applied in negotiations for the Pandemic Treaty.