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International Human Rights Law

International Human Rights Law (4th edn)

Daniel Moeckli, Sangeeta Shah, Sandesh Sivakumaran, and David Harris
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date: 29 January 2023

p. 66132. Pandemicsfree

p. 66132. Pandemicsfree

  • Meghna Abraham

Abstract

The COVID-19 pandemic has exposed the difficulties that states face when responding to public health emergencies. This chapter explores obligations under human rights law and health law treaties to prepare and prevent pandemics and the reasons that states have failed to meet these obligations. Next, it considers the challenges of responding to a pandemic and the difficulties of striking an appropriate balance between protection of life and health and enjoyment of other rights. Finally, the scope of the obligation to provide international assistance in the form of vaccines and other medical resources is discussed.

Summary

The COVID-19 pandemic, like all pandemics that have preceded it, poses challenges about how societies respond to major public health emergencies and what interests they prioritize as they do so. A massive global outbreak of an infectious disease and states’ responses to it inevitably impact the full range of human rights discussed in this book. It therefore brings into focus the adequacy of systems that are in place to prevent and respond to the health emergency, to monitor restrictions on rights, and to alleviate impacts on marginalized groups. The response to the pandemic has highlighted areas where the human rights framework could be clearer or stronger. The greater challenges, however, are around states’ implementation of their human rights obligations and the weight that they give to these obligations, both within their own countries and when required to cooperate internationally.*

1 Introduction

Pandemics1 have a long history of severe global consequences. From plague, cholera, smallpox, influenza to HIV, each pandemic has resulted in the deaths of millions of people and economic and social devastation. Public health experts have repeatedly warned governments that the world is ill-prepared for the likely emergence of a fast-moving, virulent respiratory pathogen pandemic. The World Health Organization (WHO) has tracked numerous epidemics in the last decade such as Severe Acute Respiratory Syndrome (SARS), Middle East Respiratory Syndrome (MERS), Zika, and Ebola. These were considered ‘harbingers of a new era of high-impact, potentially fast-spreading outbreaks that are more frequently detected and increasingly difficult to manage’.2 These disease outbreaks amply demonstrated the serious social, economic, and human rights challenges brought about by a pandemic.

Despite these warnings, most governments were woefully unprepared for the severe acute respiratory syndrome coronavirus 2 (SARS-CoV-2). This novel coronavirus emerged p. 662when a cluster of atypical pneumonia-like symptoms were identified in patients in Wuhan, China in early December 2019. From there, it spread all over the world causing coronavirus disease (COVID-19), a multi-system disease which leaves a significant percentage of those who survive it with longer term health effects or lasting disability (referred to as ‘long COVID’). The WHO declared the novel coronavirus outbreak a ‘Public Health Emergency of International Concern’ on 30 January 2020. Due to its alarming levels of severity and spread, the WHO characterized COVID-19 as a pandemic in March 2020.

Since then, COVID-19 has left a swathe of devastation all around the world that is unparalleled in living memory and resulted in the worst economic recession since the Great Depression. By August 2021, 211 million confirmed cases of COVID-19, including over four million deaths, had been reported to the WHO.3 However, there are serious gaps in reporting infections, deaths, and longer term health effects in numerous countries and so these numbers underestimate the actual toll of the disease.

The pandemic has exposed the fault lines of inequality and gaps in implementation of human rights in every state irrespective of its level of wealth and development. It has revealed systemic weaknesses in investment in health and social security systems. Its impacts, whether in relation to health effects and mortality or negative economic consequences, fall disproportionately on those who already face marginalization and discrimination. Restrictions that were imposed by states to contain the public health emergency have impacted the enjoyment of a range of human rights. Furthermore, several governments have used the pandemic as a pretext to severely curtail freedom of speech, persecute critics, and roll back social, environmental, or labour rights safeguards.

Section 2 discusses the obligations which arise under international human rights and health law treaties to prepare for and prevent pandemics and the failure of states to meet these obligations. It summarizes the main shortcomings which have led to these failures. Section 3 describes the challenges of striking an appropriate balance between the protection of health and life and restrictions of other rights. It briefly sets out the framework for states’ responses to the pandemic. It also assesses the adequacy of the legal framework for imposition of limitations or derogations. Section 4 analyses whether states have an obligation to provide assistance to other states in the context of pandemics. It suggests that states are breaching their obligations of international assistance cooperation through the manner in which they have addressed global distribution of vaccines and other medical resources. The chapter concludes in Section 5.

2 Obligations to Prepare for and Prevent Pandemics

Discussions on the challenges posed to the enjoyment of human rights by the COVID-19 pandemic often focus on measures, such as the imposition of lockdowns, that states have taken after the novel coronavirus began spreading. However, states have obligations to take adequate steps in advance of such an outbreak to prepare for it and prevent it. The obligation to prepare for and prevent pandemics arises both from international human rights law and international health law. Under international human rights law, states have obligations to prevent, prepare for, and control infectious diseases as part of their obligations to protect the right to life and ensure the right to health of all persons.

p. 663The content of these (human rights) duties will, as a matter of practice, be informed by the content of complementary obligations and guidelines assumed under international health law. The Constitution of the WHO mandates the organization to adopt regulations designed to prevent the international spread of disease. The International Health Regulations (IHR), adopted by the WHO in 2005, set out a detailed international framework to respond to public health emergencies and prevent the international spread of diseases. They spell out the specific measures that states need to take to increase their core capacity for health surveillance and to respond to public health risks and emergencies. The extent to which states have complied with this more detailed framework is relevant when considering whether states have met their obligations under Article 12(2)(c) of the International Covenant on Economic, Social and Cultural Rights (ICESCR) to prevent and control epidemic diseases.

2.1 Human Rights Obligations

The duty to protect life under Article 6 of the International Covenant on Civil and Political Rights (ICCPR) requires states to adopt measures in order to protect life from all reasonably foreseeable threats. The Human Rights Committee has stated that this covers general conditions in society that may give rise to direct threats to life, including the prevalence of life-threatening diseases.4 The Committee has confirmed that states should take ‘measures designed to ensure access without delay by individuals to essential goods and services such as food, water, shelter, health care, electricity and sanitation’, as well as develop ‘contingency plans and disaster management plans designed to increase preparedness and address natural and man-made disasters that may adversely affect enjoyment of the right to life’.5

Article 12(2)(c) ICESCR sets out a specific obligation on states to take the necessary steps for the prevention, treatment, and control of epidemic diseases. The Committee on Economic, Social and Cultural Rights has specified that ‘the right to treatment includes the creation of a system of urgent medical care’ in cases of epidemics. The ‘control of diseases’ requires individual and joint efforts by states to make available relevant technologies, to use and improve epidemiological surveillance and disaggregated data collection, and to implement or enhance immunization programmes and other strategies of infection disease control. The Committee has clarified that these obligations are on a par with other ‘minimum core’ obligations,6 and so states are required to prioritize them both within their countries and through international assistance and cooperation.7

These requirements are closely linked to broader obligations to realize the right to health. Mechanisms of prevention, treatment, and control of infectious diseases have to be located within well-functioning, accessible, public health systems. States must ensure that healthcare facilities, goods, and services are available, accessible, acceptable, and of good quality. They must also ensure the availability and accessibility of the underlying determinants of health such as safe water and sanitation, food and housing, healthy occupational conditions, and health-related education and information.8 While pandemic preparedness is viewed primarily through a public health lens, it is not possible for governments p. 664to mitigate the social and economic impacts of a pandemic, particularly on marginalized groups, without an adequate social protection system. Therefore, obligations to ensure the rights to social security, food, work, an adequate standard of living, and to ensure equality and non-discrimination are also vital building blocks of preparation for pandemics.

The COVID-19 pandemic has revealed broad patterns of failure by states to meet these obligations. For example, despite the obligations under the ICESCR, governments have not invested resources, to the maximum available level, to increase access to public healthcare for many years. Austerity policies adopted in the aftermath of the 2008 financial crisis have impacted health spending all over the world. Spending on health in 2018 ranged from 4.8 per cent of GDP in lower middle-income countries to 8.2 per cent in high-income countries.9 There are also major disparities between rural and urban areas. The majority of people living in rural areas do not have access to essential healthcare services.10 People cannot protect their own health or others’ health if they have to make choices between exposing themselves to the risk of infection or providing for themselves and their families. The right to social security provides the critical buffer in this context as do protections for workers’ rights. However, more than one-third of the world’s population over the age of 15 was not covered under national labour legislation or entitled to social protection or employment benefits prior to the pandemic.11 These shortcomings are not linked to levels of development. Rather, as illustrated by the high levels of mortality from COVID-19 in the richest countries in the world, they reflect political choices by governments.

2.2 International Health Law

The IHR were adopted in 2005 after the SARS epidemic to replace earlier regulations which were limited to specific diseases. The IHR seek ‘to prevent, protect against, control and provide a public health response to the international spread of disease in ways that are commensurate with and restricted to public health risks, and which avoid unnecessary interference with international traffic and trade’ (Article 2). Human rights are incorporated into the framework. States are obliged to implement the Regulations with full respect for the dignity, human rights, and fundamental freedoms of persons (Article 3). All 194 WHO member states are parties to the IHR.

The IHR require states to increase their core capacity for health surveillance and to respond to public health risks and emergencies. They also create obligations for states to monitor and notify the WHO about public health events which may constitute a Public Health Emergency of International Concern (PHEIC). The WHO can consider reports from other unofficial sources but must then verify the information from the concerned state. The Director-General of the WHO has the authority to declare a PHEIC but does so after considering all the information and on the advice of an Emergency Committee which he or she convenes. States are required to adopt national public health measures in response to a PHEIC based on necessity, proportionality, scientific evidence, and risk assessment. These measures, which also have to be reported to the WHO, should not be more restrictive of international traffic and not more invasive or intrusive to persons than reasonably available alternatives that would achieve the appropriate level of health protection. They should also be non-discriminatory in their application.

p. 665As of 2018, however, only one-third of states had the capacities required under the IHR. The great majority of national health systems were also considered unable to handle a large influx of patients infected with a respiratory pathogen capable of easy transmission and high mortality.12 These failures should not come as a surprise, however, as multiple reviews over the last two decades had pointed to significant shortcomings in states’ pandemic preparedness and the need to scale up capacity. They recommended accelerating the implementation of IHR core capacities and infrastructure, aligning these with national plans for strengthening health systems and mobilizing financial and technical support to build these capacities.13 The monitoring system under the IHR is weak and dependent on self-reporting by states. The Independent Panel on Pandemic Preparedness was established by the WHO Director-General to review the experience gained and lessons learned from the WHO-coordinated international response to the COVID-19 pandemic. It has also concluded that the alert system under the IHR does not operate with sufficient speed and that the Regulations are a conservative instrument that serves to constrain rather than facilitate rapid action.14

The WHO lacks the power to enforce cooperation or corrective actions if states do not build their core capacities or national public health measures do not comply with its advice. Several developed countries which have historically reported better core pandemic preparedness capacity ignored the WHO’s advice to follow a model of elimination and instead allowed the virus to spread, treating it like influenza.15 The broad mandate of the WHO, its funding model, and its reliance on voluntary contributions from states also makes it difficult for the organization to exercise authority if governments are unwilling to cooperate. It has therefore not even used the avenues that are at its disposal for enhancing compliance and focused instead on building collaboration.16

2.3 Persistent Failures to Meet Obligations

We need to identify how states have been able to continue to breach their international obligations despite multiple warnings of the risks and the consequences of doing so. This is significant not just for accountability for human rights violations arising from the COVID-19 pandemic, but to prevent future violations. The reasons are complex but the main shortcomings can be summarized as follows.

2.3.1 Short-sightedness and under-resourcing

States have displayed the same kind of myopia on ensuring preparedness for pandemics that we have seen in other areas—such as the climate crisis—by choosing to defer action on issues which appear distant and complex. Ultimately, the key challenge is the lack of political will and the unwillingness of states to address problems which are less visible to electorates. Various commissions and panels, including those convened after the H1N1 pandemic and the Ebola epidemic, have called for scaled up financing for pandemic preparedness. However, despite these recommendations and the evidence of the p. 666huge economic toll of past outbreaks, public spending on preparedness and prevention has been extremely low within countries and as a proportion of development assistance.17 This is a blatant breach of treaty obligations, under the ICESCR and IHR. A common shortcoming with implementation of obligations under both treaties is the lack of domestic incorporation in many states and the absence of adequate scrutiny, by parliaments and courts, of governmental decisions on allocation of resources.

2.3.2 Siloed approach

UN treaty bodies have not focused on pandemic preparedness as part of their review of state parties’ implementation of their obligations. Their recommendations have focused on broader concerns about health systems, and impacts of epidemics and other specific diseases only in affected states. Limited scrutiny of the issue of preparedness also has consequences in terms of platforms of engagement from civil society on this issue. Treaty bodies appear to have deferred to the WHO on this topic, perhaps because of its technical nature. The WHO, on the other hand, is not in a position to exercise authority over states and highlight non-compliance. It does not have enough staff with human rights expertise across the organization or who are involved in pandemic preparedness.18 It has provided limited practical guidance on how the IHR should be implemented with full respect for human rights, even though this is a key principle in the Regulations. These siloes are also reflected at the national level where responsibilities for implementation tend to be concentrated in ministries for health with insufficient collaboration with other relevant parts of government.19 It has also meant that barriers to access healthcare, social security, housing, and food that reflect wider patterns of inequality and discrimination and determine people’s ability to protect themselves have been neglected while scrutinizing pandemic preparedness.

It takes time and resources for governments to build the necessary health system and surveillance capacity. Waiting until an infectious disease starts spreading before doing so will only result in preventable deaths and suffering. Excess deaths result not just from the disease causing the pandemic but also from disruption to treatment for other health conditions once health systems are overrun. The COVID-19 pandemic has demonstrated how states have failed to take their international obligations seriously.

3 Responding to a Pandemic

In accordance with their obligations to protect the right to life and ensure the right to health, states needed to take necessary measures to prevent, control, and treat COVID-19. The failure to prevent the large-scale community transmission of COVID-19 created a situation where governments had to rely on broad-based measures such as lockdowns, social distancing, and the use of personal protective equipment to reduce transmission. The need for these measures was more acute when vaccines and medicines had not been identified or developed. This continues to be the case for states that do not have access to these in sufficient quantities. The WHO’s guidance on preparing and responding to p. 667COVID-19 highlights that states, with some exceptions,20 should adopt targeted and time-limited population-level distancing measures, movement restrictions, and other measures to reduce exposure once community transmission is established. These include suspension of mass gatherings, closure of non-essential places of work, limits on national and international travel, self-isolation, and quarantine requirements.21 However, the imposition of measures to suppress transmission, even if in the pursuit of protection of the right to life or health, necessarily involves limitations on other human rights. Based on the nature of the measure, these could include limitations of the rights to freedom of movement, assembly, work, and education, amongst others.

Human rights have been invoked by people who called on governments to take stronger measures to control transmission,22 as well as those who consider such measures to be unjustified.23 The fact that both sides are able to rely on human rights law to make their case highlights the challenges of striking an appropriate balance between the protection of health and lives and the limitation of other rights. The challenge is exacerbated by the scientific uncertainties that inevitably arise when dealing with a new virus. This balancing act also raises distributive justice concerns. The risk of serious disease is not universal; the disease itself, and the measures taken to contain it, have disproportionate impacts on vulnerable groups.

This section looks at two aspects of responses to a pandemic once community transmission is established: the priorities for responses to pandemics set out under human rights treaties (Section 3.1) and the adequacy of the framework on limitations and derogations for striking an appropriate balance between the protection of various rights (Section 3.2).

3.1 Priorities in Pandemic Responses

Human rights treaties set out the framework and priorities for states’ responses to pandemics. For example, states have minimum core obligations in relation to economic, social, and cultural rights, including to ensure minimum essential levels of food, healthcare, housing, water, and education, which they are required to prioritize.24 States have to demonstrate that they have made use of all the resources that are at their disposition to satisfy these minimum core obligations and this takes on even greater significance in the context of a pandemic. There is also a strong presumption that any deliberately retrogressive measures which hinder the realization of economic, social, and cultural rights, such as cuts to benefits, are not permissible.25 The Committee on Economic, Social and Cultural Rights has clarified that the burden of proof rests with the state to show that the adoption of a retrogressive measure ‘was based on the most careful consideration and can be justified by reference to the totality of the rights provided for in the Covenant and by the fact that full use was made of available resources’.26

p. 668States must prioritize the most disadvantaged when allocating resources, especially at times when they face resource constraints.27 There has been considerable guidance from various UN treaty bodies and UN special procedure mandate holders on the measures that states should take to mitigate negative impacts on disadvantaged groups and those who already face discrimination to avoid exacerbating inequalities.28 States should try and scale up health and other responses to ensure minimum essential levels of food, water, housing, and so on and, as they do so, prioritize the most vulnerable groups and those who would face the greatest barriers in accessing services. Based on the country context, this could include indigenous and other communities in remote rural areas; minority or other groups that face discrimination; women and children who face abuse within families or domestic employment; homeless people; and/or people in institutional settings such as prisons. States should also mobilize all available resources through international assistance and cooperation, remove financial barriers, and regulate private health providers to maximize coverage and reduce profiteering.29

The Committee on Economic, Social and Cultural Rights has called on states to adopt special targeted measures to mitigate the impact of the COVID-19 pandemic on vulnerable groups and those subject to structural discrimination and disadvantage. These range from social relief and income-support programmes, a moratorium on evictions or mortgage bond foreclosures, to ensuring that everyone has affordable and equitable access to internet services for educational purposes.30 States need to collect disaggregated data to assess and address impacts on particular groups.

Many states have failed to respond to the pandemic with resource-allocation decisions that prioritize the most disadvantaged groups. Concerns have been raised about economic bailouts of companies without social conditionalities, and tax relief packages which benefit those who are in better financial positions. Even though numerous states have adopted some form of social protection measures, the UN Special Rapporteur on Extreme Poverty and Human Rights has highlighted significant weaknesses in the design and implementation of those measures.31 There have been concerns about the failure to address institutional barriers to healthcare for indigenous communities and people with disabilities in many countries.32 There have been stark inequalities in access to medicines and oxygen in developing countries because they are only available in private hospitals and traded at exorbitant prices on the black market.33 Children in many parts of the world have entirely lost out on education because of the heavy reliance on online learning platforms and connectivity technologies which continued to be unaffordable or unavailable.34 Overall, the fact that state responses to pandemics should comply with their human rights obligations, p. 669particularly to realize economic, social, and cultural rights, has not received the attention that it deserves in public, legal, and political debates.

There are numerous factors which underlie poor implementation but there is no doubt that the historic de-prioritization of these rights by states and international NGOs has played a contributory role.35 While legal recognition is not a magic solution, an appropriate legal and institutional framework is essential to hold governments accountable for developing and funding policies and programmes that ensure the realization of human rights for all persons. Such a legal framework is critical for providing effective remedies for individual or groups whose rights are violated. It should enable parliamentary and judicial scrutiny of governmental allocation of resources, including whether they prioritize the most vulnerable. The legal framework should require the adoption of policies and strategies with clear objectives and indicators to measure progress. It should also provide avenues for meaningful participation for affected individuals and groups in the development of these policies and strategies, including through a focus on groups that may otherwise be neglected. A legal framework with these features—binding rules, avenues for meaningful participation, scrutiny, and effective remedies—can ensure that economic, social, and cultural rights continue to be prioritized over time. If such legal frameworks were in place prior to the COVID-19 pandemic, they could have helped to maintain a sustainable focus on critical areas of health and social protection thereby preventing or minimizing the impacts of the pandemic.

3.2 Striking the Appropriate Balance Between Rights

The International Center for Not for Profit Law (ICNL) has created the COVID-19 Civic Freedom Tracker. According to its research, 109 states have adopted emergency declarations, 150 measures that affect assemblies, over 50 measures that affect expression, and 60 measures that affect privacy.36 Restrictions on rights imposed because of the pandemic will be legitimate if they meet the criteria set out in the legal framework for the imposition of limitations or derogations.37 The section below examines the applicability of these frameworks to the COVID-19 pandemic and considers the extent to which they are appropriate for regulating state action.

3.2.1 Limitations

The legal framework for imposition of limitations applies to all restrictions on rights imposed because of the pandemic. Broadly, the main criteria for a valid limitation are that the restriction should be prescribed by law, pursue a legitimate aim (in certain cases the permissible grounds are spelt out in the treaty), and be necessary and proportionate to the aim sought. The limitations should also be time-bound, reviewed periodically, and applied in a non-discriminatory manner.

Prescribed by law

Many of the legal measures adopted in response to the pandemic have taken the form of orders, decrees, or regulations which are adopted by the executive. Some of these executive orders lack a clear legal basis. Others fall short of the requirement that they must be formulated with sufficient precision to enable individuals to regulate their conduct, or offer p. 670unfettered discretion to those charged with their execution.38 This has been a particular concern in relation to the policing of lockdowns in various jurisdictions, where the regulations which give the police the power to monitor and sanction breaches are insufficiently clear. The lack of clarity has led to certain communities being disproportionately targeted because of their race, ethnicity, or economic status.39 The lack of precision also makes it harder for people to comply with the guidance and creates distrust. These concerns are exacerbated by the closure of courts and/or suspension of parliamentary activity in many states, which has allowed governments to bypass scrutiny of these measures.

There are concerns that such breaches of the rule of law in the context of a health emergency may leave an unwelcome legacy for the future. These are valid concerns, but it is important that they do not overshadow the need for legitimate action during health emergencies. A critical failure that led to such breaches, which can and should be addressed for future emergencies, is the absence of national legal frameworks for pandemics. Most states did not have adequate enabling legislation to deal with pandemics as part of their national plans for pandemic preparedness and response. Enabling legislation is encouraged by the WHO to support national plans for pandemic preparedness and response. Ideally, legislation of this nature needs to be developed in advance of the occurrence of emergency situations to allow for sufficient consideration of safeguards and development of support mechanisms.

Legitimate purpose

The Siracusa Principles, adopted by the UN Economic and Social Council, offer guidance to states on the limitation and derogation provisions in the ICCPR.40 They clarify that public health may be invoked as a ground for limiting certain rights, such as freedom of movement, in order to allow a state to take measures dealing with a serious threat to the health of the population or individual members of the population. These measures must be specifically aimed at preventing disease or injury or providing care for the sick and injured.41 Governments need to adopt measures to stop the spread of COVID-19 to meet their obligations to protect lives, and the health risks posed by the disease would meet the threshold of a serious threat to the health of the population. However, even if the measures are imposed to pursue public health objectives, they have to meet the other tests for limitations, in particular that they are prescribed by law, necessary, and proportionate.

Necessity and proportionality

The principle of necessity requires that measures are evidence-based and effective to meet the aims sought to be achieved. Measures such as quarantines, movement restrictions, stay at home orders, and closures of schools or other places of assembly are linked to public health objectives to suppress community transmission and are consistent with the WHO’s guidance to states.

However, some measures have been taken that lack a clear connection to legitimate public health objectives and so cannot be said to be ‘necessary’. These include broad and far-reaching restrictions on freedom of expression (such as restricting media coverage and reporting) and restrictions on access to information held by public bodies. Attempts by officials in US states such as Texas to restrict abortion by categorizing it amongst p. 671non-essential medical procedures blatantly pursues other aims that cannot be justified as necessary to meet the public health objective and are discriminatory.42

The proportionality principle requires states to demonstrate that the means chosen are commensurate with the ends sought to be achieved. It requires governments to choose the least restrictive option of those available to achieve the ends sought. A practical application of this to restrictions on assemblies, for example, would suggest that states can impose restrictions where gatherings are dangerous in the context of an outbreak of an infectious disease like COVID-19. However, a state should adopt the least restrictive option of those available to reduce the risk. This may require exploring distancing and mask requirements or even limits on the number of people who can gather within a certain space to exercise their rights of peaceful assembly.43 A blanket ban on peaceful assemblies, which provides no possibility for adopting precautions that would enable the exercise of this right while minimizing risk of infection, would be unlikely to meet the requirements of necessity and proportionality.

3.2.2 Derogations

Where human rights treaties include derogation provisions,44 states may suspend some of their treaty obligations when there is a situation of public emergency threatening the life of the nation. Where permitted, derogating measures must be strictly required by the exigencies of the situation and must be terminated when the emergency has come to an end. They should be temporary. There is normally a requirement that states publicly proclaim the emergency. States should also notify other states parties of any derogation.

Less than one-fifth of the states that have adopted emergency declarations have notified the UN Secretary-General that they have proclaimed a state of emergency and derogated from specific provisions of the ICCPR.45 The ICESCR does not contain a derogations clause. Some states, such as the UK, have declared a public emergency but explicitly confirmed that they do not consider it necessary to derogate from the treaty. However, there is still a considerable mismatch between the number of notifications of derogations and declarations of public emergencies. There are concerns that states have failed to declare derogations to rights such as the right to freedom of expression, while severely restricting their enjoyment in order to evade international oversight.46

There has been considerable debate about whether states need to declare states of emergency and if they should derogate from some treaty obligations in order to respond to the pandemic.47 Much of the debate centres on whether use of derogations limits the potential for abuse of rights or, in fact, increases it. This hinges on whether the conditions for a valid derogation provide more effective safeguards than reliance on ordinary health- or disaster-related legislation combined with limitations on relevant rights.48 There is also a concern that if states do not derogate and the ordinary limitations regime is relied on p. 672because of the existence of an exceptional crisis, this could lead to a permanent weakening of human rights protections.49 The counter-argument is that the tests for a valid limitation offer sufficient safeguards and policy space to states to strike the right balance between health and other rights, whilst derogations involve the suspension of rights protections and reduce scrutiny by the courts. The Human Rights Committee has made it clear that if states can meet their public policy objectives by introducing permissible limitations on the rights in question, then they should pursue that option rather than resort to derogations.50

In practice, it appears that states that have declared states of emergency and derogated from their obligations, as well as those that have used ordinary legislation to limit the enjoyment of rights, have misused or abused their powers.51 A government’s own commitment to respecting safeguards, oversight by courts, parliaments, or other accountability mechanisms, and transparency in decision making may be stronger factors in ensuring human rights compliance.52

Broadly speaking, the frameworks on limitations and derogations provide clear guidance. Many of the more concerning restrictions, which represent forms of governmental overreach unrelated to a public health objective, contravene the frameworks. However, there are two areas where these frameworks appear inadequate: the impact of uncertainty and the failure to consider distributive justice.

3.2.3 The impact of uncertainty

A relatively neglected area is the implication of uncertainty while undertaking an assessment of the necessity and proportionality of measures which may restrict rights. This is particularly acute during the initial phase of a pandemic when there is greater scientific uncertainty about the disease. The measures that states take to control the spread of a new infectious disease have to be based on the best scientific evidence available to them at the time about the nature of the causative organism, methods to prevent transmission, and severity of the disease. It is not possible to assess legal responsibility in such a context without engaging closely with the scientific evidence and public health expertise.

However, some governments have used scientific uncertainty to justify inaction. For example, the President of Brazil denied the seriousness of COVID-19 and chose not to adopt a centralized and coordinated public health response.53 Variations of this approach have been seen in other states which chose not to impose adequate measures to suppress and control transmission because they prioritized economic concerns. Others wanted to pursue experiments around natural herd immunity54 and ignored the WHO’s advice that pursuing an objective of herd immunity by allowing the disease to spread through any segment of the population would lead to unnecessary cases and deaths.55

p. 673The precautionary principle may provide effective parameters for any margin of appreciation afforded to states dealing with uncertainty associated with serious threats to health. The principle requires that states take precautionary measures when there are serious threats to health even if causal relationships are not fully established scientifically.56 It incorporates a focus on proportionality and requires governments to define and choose policy options which are commensurate with the harm they seek to address. It recognizes the value of preventative action in the face of uncertainty, when there is evidence of potentially significant impacts and waiting until there is full scientific evidence may lead to serious harms. The principle has played a significant role in the authorization of new products or technologies, but has broader implications for other situations of risk. It recognizes that states need to take positive action to limit the spread of infection and choose more rather than less protective measures, albeit that such measures must be tailored to the harms they seek to address.

There appears to have been insufficient engagement with the impact of uncertainty, the precautionary principle, and the need for the state to take preventative action when there are significant risks of harms. It is unclear how treaty bodies will balance and reconcile these frameworks and there is a wide range of divergence between domestic courts in how they have done so. Some, like the German Federal Constitutional Court, have struck a good balance between appropriate latitude to the government to prevent the spread of COVID-19 while maintaining protections for human rights.57 Others, like the Brazilian Constitutional Court, have had to mandate action when the government chose to ignore scientific evidence and had failed to take even basic measures to protect people from the health emergency.58 At the other end of the spectrum, the Indian Supreme Court entirely deferred to the government on its lockdown measures despite its failure to put measures in place to protect the most vulnerable.59

International human rights bodies may need to offer greater leeway—or a wider margin of appreciation—to states when they are taking preventative measures to protect human health and manage risks in the face of gaps in scientific knowledge of cause-and-effect relationships. However, states should not be able to rely on uncertainty to justify inaction when there are serious threats to health. This is an area which requires further attention in any post-pandemic legal framework.

3.2.4 Distributive justice

Lockdown measures, quarantine requirements, and closures for preventing the spread of COVID-19 have severe consequences on a range of other rights apart from freedom of movement, such as education, work, food, and so on. This was starkly demonstrated by the Indian government’s imposition of a national lockdown without making adequate provision for support to marginalized groups, leading to debates about trade-offs between the risk of death from COVID-19 or from starvation. A major lesson from the HIV/AIDS and Ebola crises is the need to address the barriers that people face when called on to comply with restrictions aimed at protecting public health, which range from a lack of access to information, concern about loss of wages, and carer p. 674responsibilities to fear of stigma. It also highlighted the need for community engagement to build better communication and greater trust, especially with those who may be most vulnerable or marginalized.60 There is strong evidence that using punitive approaches to those who fail to comply with restrictions without addressing the complex underlying factors behind non-compliance can lead to disproportionate impacts based on economic status.

Arguably, the biggest weakness of the framework for assessing limitations of rights in the context of a pandemic is the absence of a holistic assessment which considers the impacts on other interdependent rights. Such an assessment requires ascertaining the extent to which the government has adopted positive measures to mitigate the negative impacts of the measure not just on the right in question but other rights that may be affected. For example, an analysis of movement restrictions that could lead to starvation needs to consider the extent to which the state has taken measures, to the maximum of its available resources, to mitigate such risks and prioritize support to the most marginalized groups. It should not be restricted to only considering two options: interference or non-interference with freedom of movement. It is important that any analysis balances the range of obligations that states must comply with to manage the pandemic.

The current framework does not enable such assessments, particularly because treaty bodies focus on the consistency of any measures with the rights covered in the treaty they monitor, rather than all potential rights that are impacted. At the domestic level, courts may also be circumscribed in their ability to undertake such an analysis, especially when there are gaps in the incorporation of economic, social, and cultural rights within national law. This leads to a significant deficit when the measures required for mitigation go beyond partial exemptions (such as relaxing the rules to allow children with autism not to wear masks) and require allocation of resources to alleviate negative impacts.

The framework also fails to scrutinize whether states have built in sufficient protection for groups, such as medical personnel, who may be exempted from restrictions that apply to other members of the population and therefore continue to be exposed to risks. The Siracusa Principles were developed to focus on restrictions of civil and political rights and do not address these aspects. There is a need for a more holistic framework which can address the challenges of striking the appropriate balance while limiting rights in a global health emergency. In the EU and other jurisdictions which have requirements to conduct equality impact assessments, this can go some way to requiring states to assess and address impacts on protected groups. This does not, however, replace the need for more joined-up scrutiny of the impact of restrictions on interdependent rights to establish how best to protect all persons and all the rights affected. As Justice Sachs noted in the Soobramoney judgment:

When rights by their very nature are shared and inter-dependent, striking appropriate balances between the equally valid entitlements or expectations of a multitude of claimants should not be seen as imposing limits on those rights … but as defining the circumstances in which the rights may most fairly and effectively be enjoyed.61

4p. 675 International Cooperation

Pandemics inevitably create an urgent need for global cooperation to control the spread of the disease, develop systems to share medical resources fairly in the face of high demand, and provide support to the worst affected. However, the COVID-19 pandemic has been characterized by an absence of cooperation. Wealthier developed states have grabbed scarce medical resources and supplies. This is not new. Significant inequalities in accessing life-saving medicines during the HIV and H1N1 pandemics were experienced by people in developing states. The lack of global solidarity has generated numerous ethical, moral, and political debates. It also raises legal issues: in particular, the scope and applicability of the obligation of international assistance and cooperation in Article 2 ICESCR and similar provisions requiring international cooperation in Article 4 of the Convention on the Rights of the Child and Article 4 of the Convention on the Rights of Persons with Disabilities.

The initial response to the COVID-19 pandemic was characterized by a scramble between states for scarce medical equipment and supplies, such as personal protective equipment (PPE), ventilators, and materials required for testing. Eighty states had imposed export restrictions on medical equipment and supplies by April 2020.62 There was also panic about cross-border supply chains that depended on China, given that production had slowed down there owing to COVID-19.63 Due to these actions, prices shot up considerably and developing states could not source basic PPE such as masks for health workers or supplies for testing, undermining their capacity to protect health workers and identify infections.

The development of multiple vaccines for the SARS-CoV-2 virus, which can considerably reduce the risk of serious disease and death, by the end of 2020 was both remarkable and fortunate. At this stage, it was a story of the triumph of international scientific collaboration that one can only dream about for neglected diseases. Scientists were able to build on years of research on related viruses, there was enormous funding available from public and private sources, and regulators shadowed the research to cut delays in the approval process. Access to the vaccines has unfortunately, however, as with all other aspects of this pandemic, been a tale of inequality between states and, in many cases, within states. By September 2021, 1 in 2 people (57.34 per cent) in high-income countries had been vaccinated with at least one dose compared to only 1 in 47 people (around 2.14 per cent) in low-income countries.64 The critical barrier is a limited supply of vaccines manufactured by a handful of companies, which have been bought in advance by wealthy nations. This echoes the experience of the 2009 H1N1 influenza pandemic, during which rich countries bought up almost all available supplies of the vaccine. Other barriers to access include the cost of the vaccines, and the logistical and administrative challenges of delivering a mass vaccination campaign.

Some developed states have historically taken the view that international cooperation and assistance to realize economic, social, and cultural rights is a moral—not legal—obligation.65 Echoes of this approach can be seen in the manner in which most developed p. 676states have dealt with the issue of global distribution of COVID-19 vaccines. These states have preferred to treat the issue as one of charity, rather than one regulated by legal obligations. The key legal issues are considered in the following section.

4.1 International Assistance and Cooperation

Article 56 UN Charter imposes an obligation on UN member states to take joint and separate action to cooperate for the achievement of human rights and solutions of international economic, social, health, and related problems. Article 2(1) ICESCR provides that states parties should ‘take steps, individually and through international assistance and cooperation’ to secure the full realization of the rights protected by the treaty. The Committee on Economic, Social and Cultural Rights has emphasized that ‘in accordance with Articles 55 and 56 of the Charter of the United Nations, with well-established principles of international law, and with the provisions of the Covenant itself, international cooperation for development and thus for the realization of economic, social and cultural rights is an obligation of all States’.66 These provisions and the Committee’s guidance reflects the reality that there are a number of areas, such as management of global threats to health, where progress on rights is dependent on international arrangements and this necessitates collective or coordinated action by states.

Furthermore, all states have extraterritorial obligations to respect, protect, and fulfil economic, social, and cultural rights.67 The Maastricht Principles on Extraterritorial Obligations in the Area of Economic, Social and Cultural Rights (the Maastricht Principles) clarify the situations in which jurisdiction may extend extraterritorially. These include situations: where a state exercises authority or effective control; when the acts or omissions of a state bring about foreseeable effects on the enjoyment of economic, social, and cultural rights outside its territory; and where it, acting separately or jointly, is in a position to exercise decisive influence or take measures to realize economic, social, and cultural rights extraterritorially.68 These obligations are not suspended in a global health emergency. Instead, they take on more importance because states may require greater assistance in achieving the full realization of economic, social, and cultural rights. In its statement on COVID-19, the Committee on Economic, Social and Cultural Rights stressed that states have extraterritorial obligations to combat the disease. It stressed that states are required to share research, medical equipment, and supplies and take coordinated action to reduce economic and social impacts and ensure an equitable economic recovery. They should also support measures of debt relief and promote flexibilities in intellectual property regimes to allow universal access to medicines and vaccines.69

4.2 Stockpiling of Vaccines

The WHO created the COVID-19 Vaccines Global Access (COVAX) initiative70 with the Global Vaccine Alliance (GAVI) and CEPI (Coalition for Epidemic Preparedness) to avoid the problems around access to vaccines faced in the H1N1 pandemic. COVAX aims to secure low prices for vaccines through pooled procurement and distribute them to all countries, with subsidised prices for low- and middle-income countries. It set an initial goal of making two billion doses available by the end of 2021 to cover 20 per cent of the p. 677world’s population, particularly health workers, the elderly, and other high-risk people. Most developed states opted not to purchase their vaccines through COVAX and pre-ordered vaccines directly from manufacturers. As it was unclear which vaccines would be successful, developed states such as Canada and the UK purchased options to procure vaccines which could cover their populations multiple times over. Even after knowing which vaccines were viable, the US, UK, EU, Canada, and Japan have continued to hold on to excess options, only releasing or donating a small percentage.71 It has been estimated that the G7 countries and the EU have one billion excess vaccines after factoring in their vaccination roll-outs and even administering booster shots to everyone over the age of 12. If released, these excess vaccines, combined with those already purchased, could enable lower income and lower middle-income countries to vaccinate 70 per cent of their population by May 2022 and prevent nearly one million deaths. Even more disturbingly, 100 million of these excess vaccines are expected to expire by the end of 2021 and risk being wasted unless redistributed immediately.72

The Maastricht Principles clarify that as part of their obligation to avoid causing harm, states are required to desist from acts or omissions, including indirect interference, which could foreseeably nullify or impair the enjoyment of economic, social, and cultural rights in other states.73 States must also regulate the conduct of non-state actors to ensure that their actions do not adversely impact the enjoyment of these rights.74 They are also under an obligation to coordinate with each other, including in the allocation of responsibilities in order to cooperate effectively towards the goal of universal fulfilment of economic, social, and cultural rights.75 States are therefore responsible for coordinating distribution of COVID-19 vaccines and medicines in a manner that does not impair the ability of other states to access these resources and which supports global availability of vaccines and other medicines.76 The manner in which states have procured and retained excess vaccines breaches these obligations to avoid causing harm and to cooperate to fulfil the right to health.

4.3 Intellectual Property-Related Barriers

While it is essential that states redistribute their excess vaccines to states where even people at high risk have not yet been vaccinated, production of vaccines also needs to be scaled up to ensure universal access to vaccines all over the world. This requires expansion and diversification of manufacturing by waiving intellectual property rights, technology transfers, and support to manufacturers all around the world that have the capacity to produce COVID-19 vaccines. India and South Africa have proposed that members of the World Trade Organization (WTO) temporarily waive intellectual property rights to remove barriers to timely access to affordable medical products including vaccines and medicines for COVID-19. The proposal, which is supported by more than 100 states, involves governments agreeing to waive specific provisions of Trade-Related Aspects on Intellectual Property Rights (TRIPS) for a minimum of three years. The proposal has been opposed by key vaccine-producing states as well as the European Commission, which submitted p. 678a counter-proposal on behalf of the EU.77 The counter-proposal suggested that instead of a TRIPS waiver, states should encourage voluntary actions by pharmaceutical companies, such as voluntary licensing. It also proposed some modifications to the provisions on compulsory licences on patents. The EU’s counter-proposal has been criticized as being inadequate and for failing to address the barriers to timely access to affordable medical products.78 The TRIPS Council has not reached a decision on the proposal for a temporary waiver because of the split between states.

States must ensure that international agreements and standards are elaborated, interpreted, and implemented in a manner consistent with their human rights obligations.79 The Committee on Economic, Social and Cultural Rights has emphasized that states must ensure that intellectual property rights are not realized to the detriment of the right to health. This includes interpreting the TRIPS Agreement in a manner supportive of their duty to public health and to promote access to medicines for all. The Committee has also stressed the duty of states to make available and accessible to all persons, especially to the most vulnerable, all the best available applications of scientific progress necessary to enjoy the highest attainable standard of health.80 In a statement issued specifically on universal affordable vaccination for COVID-19, the Committee strongly recommended that states support proposals for the temporary TRIPS waiver, including by using their voting rights within the WTO.81

States exercise decisive influence on the interpretation of TRIPS and on the proposal for a temporary waiver. Decisions to block, or failures to support, the proposal for a temporary TRIPS waiver have foreseeable impacts on the right to health of people around the world. States that choose to block or not facilitate such a waiver are breaching their obligations to realize the right to health. States also need to cooperate to provide support to other states to scale up production of the vaccine and medicines for COVID-19 as part of their duty to fulfil the right to health.

Negotiations around access to vaccines and medicines are framed around the economic implications of waiving intellectual property or in relation to claims of morality or equity. Even governments that are calling for a TRIPS waiver have not located their demands in terms of obligations of international assistance and cooperation under international human rights law. This disconnect may reflect political realities where governments and UN agencies believe they are more likely to get concessions from developed states if they are considered to be a ‘one-off’ political and charitable decision rather than acceptance of an obligation. However, this is a risky strategy. These issues will recur as negotiations on debt-relief and other areas of economic recovery are initiated, or when arrangements for future health emergencies are discussed. The way demands are framed and governments respond may also shape how people perceive the value and relevance of international human rights law in addressing complex global problems.

5p. 679 Conclusion

There are numerous proposals on the table for reforms to global health governance to improve the international system for pandemic preparedness and response, including the adoption of a new treaty on pandemics. However, the main lesson from the COVID-19 pandemic is not that we need entirely new international obligations but better implementation of existing obligations. Any reform process needs to engage in far greater depth with the underlying factors that have resulted in decades of lack of prioritization and compliance with obligations, particularly those related to fulfilment of economic, social, and cultural rights. As discussed in this chapter, the key challenge in ensuring preparedness for pandemics is the unwillingness of governments to address longer term problems which are less visible to electorates. These factors may equally hamper the implementation of any new treaty obligations on pandemics. To overcome this challenge, it is critical that appropriate legal and institutional frameworks are put in place to hold governments accountable for the realization of economic, social, and cultural rights. There has to be effective parliamentary and judicial scrutiny of whether governments are developing and funding policies and programmes that ensure the realization of rights, such as health for all, without inequality of any kind. There is also an urgent need to reduce siloes between health and human rights and to enforce obligations of international assistance and cooperation.

The economic impacts of the pandemic are likely to be felt for many years and, for the human rights legal framework to offer meaningful protection, there has to be far greater scrutiny on how governments allocate resources. This requires a systemic focus on resources and structures which determine distribution of resources both at the national and international levels, such as taxation. Lawyers and NGOs have often shied away from this area as it requires greater interdisciplinary collaboration and engagement with economic models and questions of redistribution.82 The pandemic has brought this challenge strongly to the fore and the nature of the response will determine whether the international human rights legal framework continues to be perceived as relevant and useful.

Further Reading

  • Bennoune, ‘ “Lest We Should Sleep”: COVID-19 and Human Rights’ (2020) 114 AJIL 666.
  • Bonavero Institute of Human Rights, ‘A Human Rights and Rule of Law Assessment of Legislative and Regulatory Responses to the COVID-19 Pandemic across 27 Jurisdictions’, University of Oxford (30 October 2020).
  • Bueno de Mesquita et al, ‘Human Rights Dimensions of the COVID-19 Pandemic’, Background Paper 11, Commissioned by the Independent Panel for Pandemic Preparedness and Response (May 2021).
  • De Schutter et al, ‘Commentary to the Maastricht Principles on Extraterritorial Obligations of States in the Area of Economic, Social and Cultural Rights’ (2012) 34 HRQ 1084.
  • Gostin and Katz, ‘The International Health Regulations: The Governing Framework for Global Health Security’ (2016) 94 Milbank Quarterly 264.
  • Grogan, ‘States of Emergency: Analysing Global Use of Emergency Powers in Response to COVID-19’ (2020) European Journal of Law Reform 338.
  • p. 680Independent Panel for Pandemic Preparedness & Response, ‘COVID-19: Make it the Last Pandemic’ (May 2021).
  • Kjaerum, ‘The Post-Crisis Human Rights Agenda’ in Kjaerum et al (eds), COVID-19 and Human Rights (Routledge, 2021) 293.
  • Riedel, ‘The Human Right to Health: Conceptual Foundations’ in Clapham et al (eds), Realizing the Right to Health (Rüffer & Rub, 2009) 21.
  • UN Special Rapporteur on Extreme Poverty and Human Rights, ‘Looking back to look ahead: A rights-based approach to social protection in the post-COVID-19 economic recovery’ (11 September 2020).
  • Useful Websites

    International Justice Resource Centre, Compilation of guidance from international and regional human rights monitoring bodies to states on implementation of human rights obligations in the context of COVID-19: <https://ijrcenter.org/covid-19-guidance-from-supranational-human-rights-bodies/#Special_Procedures>

    Lex Atlas: Covid-19: <https://lexatlas-c19.org>

    WHO Coronavirus (COVID-19) Dashboard: <https://covid19.who.int/>

    Questions for Reflection

    1.

    Why has there been such limited scrutiny of the failure of states to implement their obligations to prepare for and prevent pandemics? How much has the historical de-prioritization of economic, social, and cultural rights by governments and international NGOs contributed to this situation?

    2.

    Does international human rights law set out a useful framework for states’ responses to pandemics?

    3.

    Should states derogate from some of their treaty obligations when facing a public health emergency such as the COVID-19 pandemic?

    4.

    What are the strengths and weakness of the legal framework for imposition of limitations on rights in the context of a public health emergency such as a pandemic? What reforms, if any, do you think are necessary?

    5.

    Is there a value in calling on states to comply with their obligations of international assistance and cooperation in negotiations for equitable access to vaccines and medicines for COVID-19?

    Notes

    • * I would like to thank Aoife Nolan, Audrey Gaughran, Sanhita Ambast and Tom Sebastian for their comments.

    • 1 A pandemic is defined by the WHO as the worldwide spread of a new disease.

    • 2 Global Preparedness Monitoring Board, A World at Risk: Annual report on global preparedness for health emergencies (WHO, September 2019) 12.

    • 3 WHO, ‘WHO Coronavirus (COVID-19) Dashboard’, <https://covid19.who.int/>.

    • 4 HRC, General Comment 36, CCPR/C/GC/36 (30 October 2018) paras 18 and 26.

    • 5 HRC General Comment 36, para 26.

    • 6 See Chapter 7.

    • 7 CESCR, General Comment 14, paras 16 and 44. See also CESCR, Statement on the coronavirus disease (COVID-19) pandemic and economic, social and cultural rights, E/C.12/2020/1 (17 April 2020) para 23 (‘COVID-19 Statement’).

    • 8 CESCR General Comment 14, paras 11–12.

    • 9 WHO, Global spending on health: Weathering the storm (WHO, 2020) 2.

    • 10 ILO, Global evidence on inequities in rural health protection: New data on rural deficits in health coverage for 174 countries (ILO, 2015) xiii.

    • 11 ILO, Women and Men in the Informal Economy: A Statistical Picture (ILO, 2018) 13.

    • 12 Global Preparedness Monitoring Board, A World at Risk: Annual report on global preparedness for health emergencies (WHO, 2019) 20.

    • 13 Secretariat to the Independent Panel for Pandemic Preparedness and Response, ‘Building on the Past’, Background paper 1 (May 2021) 9–10.

    • 14 The Independent Panel for Pandemic Preparedness & Response, COVID-19: Make it the Last Pandemic (WHO, 2021) 26

    • 15 Sridhar, ‘COVID-19: What Health Experts Could and Could Not Predict’ (2020) 26 Nature Medicine 1812.

    • 16 Gostin and Katz, ‘The International Health Regulations: The Governing Framework for Global Health Security’ (2016) 94 Milbank Quarterly 264, 305–6.

    • 17 Glassman and Smitham, ‘Financing for Global Health Security and Pandemic Preparedness: Taking Stock and What’s Next’ (Center for Global Development, 2021), <https://www.cgdev.org/blog/financing-global-health-security-and-pandemic-preparedness-taking-stock-whats-next>.

    • 18 Bueno des Mesquita et al, ‘Human Rights Dimensions of the COVID-19 Pandemic’, Background Paper 11, Commissioned by the Independent Panel for Pandemic Preparedness and Response (May 2021) 7.

    • 19 Packer et al, ‘A Survey of International Health Regulations National Focal Points Experiences in Carrying out Their Functions’ (2021) 17:25 Globalization and Health, 3.

    • 20 In the case of low-income and crisis settings, the WHO notes that such measures should only be implemented where justified by an analysis of the trade-offs between public health measures against COVID-19 and the necessity for people to meet their basic food and protection needs.

    • 21 WHO, COVID-19 Strategy Update (14 April 2020) 9.

    • 22 eg HRW Press Release, ‘Brazil: Bolsonaro Sabotages Anti-Covid-19 Efforts’ (10 April 2020).

    • 23 eg Lord Sumption, ‘Government by decree: COVID-19 and the Constitution’, Cambridge Freshfields Annual Law Lecture (27 October 2020), <https://resources.law.cam.ac.uk/privatelaw/Freshfields_Lecture_2020_Government_by_Decree.pdf>.

    • 24 CESCR, General Comment No 3: The Nature of States Parties’ Obligations, HRI/GEN/1/Rev.9 (Vol. 1) 243 para 10. See Chapter 7.

    • 25 CESCR, General Comment 3, para 9.

    • 26 CESCR, An evaluation of the obligation to take steps to the ‘maximum of available resources’ under an Optional Protocol to the Covenant, E/C.12/2007 (21 September 2007) paras 9 and 10.

    • 27 CESCR General Comment 3, para 12.

    • 28 See International Justice Resource Centre, ‘COVID-19 Guidance from Supranational Human Rights Bodies’, <https://ijrcenter.org/covid-19-guidance-from-supranational-human-rights-bodies/>.

    • 29 Final report of the Special Rapporteur on the right of everyone to the enjoyment of the highest attainable standard of physical and mental health, A/75/163 (16 July 2020) para 61.

    • 30 CESCR, COVID-19 Statement, para 15.

    • 31 UN Special Rapporteur on Extreme Poverty and Human Rights, Looking back to look ahead: A rights-based approach to social protection in the post-COVID-19 economic recovery (11 September 2020) 7–16, <https://www.ohchr.org/EN/Issues/Poverty/Pages/Covid19.aspx>.

    • 32 HRW, Future Choices: Charting an Equitable Exit from the Covid-19 Pandemic (March 2021).

    • 33 Watkins and Isah, ‘Covid-19 has Turned the Spotlight on the Uneven Provision of Oxygen—A Stark Health Inequity’, The BMJ Opinion (11 December 2020), <https://blogs.bmj.com/bmj/2020/12/11/covid-19-has-turned-the-spotlight-on-the-uneven-provision-of-oxygen-a-stark-health-inequity/>.

    • 34 HRW, ‘“Years Don’t Wait for Them”: Increased Inequalities in Children’s Right to Education Due to the Covid-19 Pandemic’ (17 May 2021), <https://www.hrw.org/report/2021/05/17/years-dont-wait-them/increased-inequalities-childrens-right-education-due-covid>.

    • 35 See Report of the Special Rapporteur on extreme poverty and human rights, A/HRC/29/31 (27 May 2015) paras 50 and 56.

    • 36 ICNL, ‘COVID-19 Civic Freedom Tracker’, <https://www.icnl.org/covid19tracker/>.

    • 37 See Chapter 7.

    • 38 Grogan and Beqiraj, ‘Rule of Law as a Perimeter of Legitimacy for COVID-19 Responses’, Verfassungsblog (17 April 2021).

    • 39 Amnesty International, Policing the pandemic: Human rights violations in the enforcement of COVID-19 measures in Europe, EUR 01/2511/2020 (23 June 2020).

    • 40 E/CN.4/1985/4, Annex (1985).

    • 41 Principle 25.

    • 42 White et al, ‘Changes in Abortion in Texas Following an Executive Order Ban During the Coronavirus Pandemic’ (2021) 325 Journal of the American Medical Association 691.

    • 43 HRC, General Comment 37, CCPR/C/GC/37 (17 September 2020) paras 45 and 59.

    • 44 eg ICCPR, Art 4; ECHR, Art 15; ACHR, Art 27.

    • 45 See UN Treaty Collection, ‘Notifications under Article 4(3) of the Covenant’, <https://treaties.un.org/pages/ViewDetails.aspx?src=TREATY&mtdsg_no=IV-4&chapter=4&clang=_en>.

    • 46 HRW Press Release, ‘Covid-19 Triggers Wave of Free Speech Abuse’ (11 February 2021).

    • 47 eg Verfassungsblog, ‘COVID-19 and States of Emergency’ (which includes country reports and articles from lawyers and scholar published as part of a Symposium which took place from 6 April–26 May 2020), <https://verfassungsblog.de/category/debates/covid-19-and-states-of-emergency-debates/>.

    • 48 Grogan, ‘States of Emergency: Analysing Global Use of Emergency Powers in Response to COVID-19’ (2020) 4 European Journal of Law Reform 338.

    • 49 Greene, ‘Derogating from the European Convention on Human Rights in Response to the Coronavirus Pandemic: If Not Now, When?’ [2020] EHRLR 262, 272.

    • 50 HRC, Statement on derogations from the Covenant in connection with the COVID-19 pandemic, CCPR/C/128/2 (24 April 2020) para 2(c); see also General Comment 29, para 5.

    • 51 Grogan, 354.

    • 52 Grogan, 354. See also Bonavero Institute of Human Rights, A Human Rights and Rule of Law Assessment of Legislative and Regulatory Responses to the COVID-19 Pandemic across 27 Jurisdictions (October 2020) 13–17.

    • 53 Ventura and Reis, An unprecedented attack on human rights in Brazil: the timeline of the federal government’s strategy to spread Covid-19, Offprint, Translation by Misiara, revision by Martins, Bulletin Rights in the Pandemic 10 CEPEDISA/USP and Conectas Human Rights (January 2021).

    • 54 Herd immunity is the indirect protection from an infectious disease that happens when a population is immune either through vaccination or immunity developed through previous infection.

    • 55 WHO Director-General’s opening remarks at the media briefing on COVID-19 (12 October 2020), <https://www.who.int/director-general/speeches/detail/who-director-general-s-opening-remarks-at-the-media-briefing-on-covid-19---12-october-2020>.

    • 56 Kriebel and Tickner, ‘Reenergizing Public Health Through Precaution’ (2001) 9 American J of Public Health 1351.

    • 57 Hestermeyer, ‘Coronavirus Lockdown-Measures before the German Constitutional Court’, Constitutionnet (30 April 2020).

    • 58 Droubi et al, ‘The Brazilian Federal Supreme Court comes to the protection of indigenous people’s right to health in the face of Covid-19’, EJIL: Talk (23 December 2020).

    • 59 Bhatia, ‘India: Covid-19, the Executive, and the Judiciary’, COVID-19 and Courts Symposium, Opinio Juris (26 July 2021).

    • 60 UNAIDS, Rights in the time of COVID-19: Lessons from HIV for an effective, community-led response (UNAIDS, 2020) 3–10. See also Celum et al, ‘Covid-19, Ebola, and HIV—Leveraging Lessons to Maximize Impact’ [2020] New England Journal of Medicine 383.

    • 61 Constitutional Court of South Africa, Soobramoney v Minister of Health (Kwazulu-Natal), Case CCT 32/97 (27 November 1997), para 54.

    • 62 WTO, Export Prohibitions and Restrictions: Information Note (23 April 2020) 1.

    • 63 Chatham House Briefing Paper, ‘Trade policy and medical supplies during COVID-19’ (April 2021) 2.

    • 64 See UNDP, ‘Global Dashboard for Vaccine Equity’, <https://data.undp.org/vaccine-equity/>.

    • 65 This issue came up in negotiations around the Optional Protocol to the ICESCR. See eg Report of the Open-ended Working Group to consider options regarding the elaboration of an optional protocol to the International Covenant on Economic, Social and Cultural Rights on its third session, E/CN.4/2006/47 (14 March 2006) para 82.

    • 66 CESCR, General Comment 3, para 14.

    • 67 Maastricht Principles, Principle 3. See Chapter 6.

    • 68 Principle 9.

    • 69 CESCR, COVID-19 Statement, paras 19–21.

    • 70 WHO, ‘COVAX’, <https://www.who.int/initiatives/act-accelerator/covax>.

    • 71 Airfinity, ‘Global Press Release: More than a billion available stock of Western COVID-19 vaccines by the end of 2021’ (5 September 2021).

    • 72 Airfinity, ‘COVID-19 vaccine expiry forecast for 2021 and 2022’ (20 September 2021).

    • 73 Principles 13 and 21.

    • 74 Principle 24.

    • 75 Principle 30.

    • 76 See CESCR, Statement on universal and equitable access to vaccines for COVID-19, E/C.12/2020/2 (27 November 2020) paras 9–11.

    • 77 WTO, Draft General Council Declaration on the TRIPS Agreement and Public Health in the circumstances of a Pandemic: Communication from the European Union to the Council for TRIPS, IP/C/W/681 (18 June 2021).

    • 78 Médecins Sans Frontières, ‘Analysis of Communications from the European Union to the Council for TRIPS’, Updated 24 June 2021, <https://msfaccess.org/msf-analysis-eu-communications-trips-council-covid-19-ip-waiver-proposal>; Thambisetty et al, ‘The TRIPS Intellectual Property Waiver Proposal: Creating the Right Incentives in Patent Law and Politics to end the COVID-19 Pandemic’, LSE Law Society Economy Working Papers (June 2021).

    • 79 Maastricht Principles, Principle 17.

    • 80 CESCR, General Comment 25, E/C.12/GC/25 (30 April 2020) paras 69 and 70.

    • 81 CESCR, Statement on universal affordable vaccination against coronavirus disease (COVID-19), international cooperation and intellectual property, E/C.12/2021/1 (23 April 2021) para 13.

    • 82 Aguilar and Saiz, ‘Tackling inequality as injustice: four challenges for the human rights agenda’ (30 March 2016), <https://www.openglobalrights.org/tackling-inequality-as-injustice-four-challenges-for-h/>.

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