In mid-May, the World Health Organization officially declared the “emergency” phase of the COVID-19 pandemic over. However, the deep wounds of the pandemic remain, compelling those concerned about this pandemic and future health emergencies to account for catastrophic failures by those in power. These reflections suggest that the public health crisis could have been addressed differently, both reducing COVID-19’s unprecedented magnitude of illness and death, and preserving human dignity.
The COVID-19 pandemic isn’t over, and the end of this pandemic’s emergency phase certainly doesn’t mean we accept the widely abysmal response as the model for the world’s reaction to the next one. Public health emergencies aren’t entirely preventable. We live in a complex world where health is increasingly affected by a changing climate, extraordinary levels of pollution, and inadequate preventive and responsive health services. Emergencies will happen. But when they do, responses that uphold human rights need to be the norm.
Drawing on the lessons from these failures, the Principles and Guidelines on Human Rights and Health Emergencies offer an important framework for centering human rights in preventing, preparing, and responding to health emergencies. More specifically, the development of “solidarity” as an emerging principle of international human rights law creates a duty for states to achieve common goals in the context of public health emergencies, as well as to prevent non-state actors from frustrating solidarity efforts.
Solidarity operates at two intersecting levels. Global solidarity requires cooperation between governments, while national solidarity involves cooperation within a state to address common challenges and achieve shared goals. During the height of the COVID-19 pandemic, we noted that governments around the world scrambled to coordinate responses to the novel virus, while often trampling on basic rights domestically.
As reasonable and evidence-based adjustments to prevent transmission and protect health became the norm, authorities continued to fail on equity. In some cases they weaponized public health measures to target activists and opponents and consolidate power. Internationally, rich countries hoarded vaccines, letting them expire in warehouses, and blocked a proposal to share the vaccine recipe, while those in poorer countries died waiting for a first dose.
The Principles also significantly recognize the role of non-state actors in using intellectual property and trade protections to advance a profit-centered approach to health. By noting that non-state actors, such as the pharmaceutical industry, have a “duty to respect human rights in the context of a public health emergency,” the Principles acknowledge the outsized power of non-state actors in global health, and the ways in which they undermine solidarity in the face of a global health emergency.
In fact, the most important global policy debate of the COVID-19 pandemic – over intellectual property as it related to vaccines, testing, and treatment – took place inside a commerce body, the World Trade Organization (WTO), with no health or human rights mandate. The WTO’s promotion of trade and protection of intellectual property has historically taken priority over health, environment, and human wellbeing. This pattern has had lethal consequences during the COVID-19 pandemic, harming efforts to advance global solidarity.
It is already well-established in international human rights law that states should not frustrate the efforts of other states to fulfill their human rights obligations, including when negotiating international agreements or participating in decisions as members of international organizations, such as by invoking intellectual property protections to slow vaccine distribution or production.
The pandemic has laid bare the dangers of having manufacturing capacity for life-saving vaccines concentrated in a few countries where governments have refused to prioritize and mandate intellectual property waivers and technology transfers for rapid, diversified, and global production. That has created deep inequities in access to health products that can save lives. The Principles therefore lay the foundations for holding non-state actors accountable when they fail to respect human rights by exacerbating inequities in access to health products.
Cementing solidarity as part of international law will be an important step in the right direction. Beyond that high-level shift that should influence global health diplomacy, the Principles also offer critical guidance on how to support people most affected by health crises with a call to “take into account the health needs and rights of the whole population, including marginalized, disadvantaged and disproportionately affected individuals and groups, as well as health and frontline workers.”
As the post-emergency phase of the COVID-19 pandemic so far shows the predictable fallout of infections and severe illness among marginalized groups, the Principles should reinvigorate a global health system in dire need of reform toward equity. Solidarity doesn’t have to remain relegated to platitudes and lamentations if we enshrine it in the legal thinking that guides our next response.