Failing Forward

How Human Rights Failures in Governments’ COVID-19 Responses Can Inform the Development of International Human Rights Law

In: International Community Law Review
Roojin Habibi Research Fellow, Global Strategy Lab, School of Global Health and Osgoode Hall Law School, York University Toronto, ON Canada

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Timothy Fish Hodgson Legal Adviser, Economic, Social and Cultural Rights, International Commission of Jurists Johannesburg South Africa

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Steven J. Hoffman Professor and Director, Global Strategy Lab, School of Global Health and Osgoode Hall Law School, York University Toronto, ON Canada

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Despite the pandemic’s widespread and transnational impact on human rights, both solidarity and human rights have been side-lined in key intergovernmental discussions on global health law reform to date, while conversations about the development of international human rights law seldom consider global health law’s import to the field. This article argues that in spite of states’ apparent reluctance to reconcile and harmonise global health law and international human rights law for fairer and more effective public health emergency preparedness and response, international law experts and practitioners are well-placed to indirectly influence normative development in this direction, drawing on their past successes in clarifying and elaborating upon informal international legal standards. Merging strengths from existing legal frameworks of global health law and international human rights law, such expert standard setting efforts can help reimagine a “progressively harmonised” framework of legal regimes for public health emergency preparedness and response.

1 Reforming Global Health Law to Prevent the Next Pandemic: A Tale of Two Coronaviruses

When the World Health Assembly (WHA) adopted the International Health Regulations (IHR) in 2005, the international community had just emerged from the grips of the 2003 Severe Acute Respiratory Syndrome (SARS) outbreak. In a series of events not too different from the early stages of the novel coronavirus (COVID-19) pandemic raging worldwide today, isolated cases of pneumonia of unknown origin in Guangdong, China in late-2002 rapidly progressed into a localised outbreak, and within weeks became a cross-border public health emergency. Although short-lived, the SARS outbreak catalysed a recalibration of acceptable norms in international cooperation for infectious disease control and triggered “a norm cascade” towards revising the binding international legal instrument that governs such situations.1 In a press release announcing the revised IHR’s entry into force, former World Health Organization (WHO) Director-General Dr Margaret Chan called SARS a “wake-up call” and affirmed that the IHR would help better prepare the world for the next pandemic.2

Today, the IHR are one of the key legal instruments that constitute the fast-growing body of norms referred to more generally as “global health law.”3 While scholarly opinion differs as to whether global health law is a “regime” or a “field”,4 at its broadest it would include all principles, rules, norms and decision-making procedures that structure global health.5 Some have also argued that global health law is best understood as an approach to international law aimed ‘at placing human health interests on the same plane as other recognized interests’, such as security, economics and trade.6 Yet, at the core of it, only a few binding instruments are widely referenced in discussions of global health law, including the Constitution of the WHO (1946), the Biological Weapons Convention (1972), the WTO Agreement on the Application of Sanitary and Phytosanitary Measures (1994), and the Framework Convention on Tobacco Control (2003). When it comes to infectious diseases, the IHR is chief among them.7

While SARS provided a wake-up call to establish IHR obligations of information sharing, public health capacity building and coordination in implementing additional health measures, COVID-19 has dramatically underscored the need for states to operationalise the principle of solidarity and realise their obligations under international human rights law as these relate to the prevention of, preparedness for, and responses to public health emergencies. In just over two years, COVID-19 has entrenched itself along well-known fault lines of social inequality,8 prompting the UN Secretary General Antonio Guterres to decry a parallel ‘pandemic of human rights abuses’.9 Whether by neglect or design, many government measures to respond to the virus and its ever-mutating variants disproportionately discriminated against marginalised and disadvantaged people, such as persons living in poverty, precarious workers, gender minorities, the elderly, people without shelter, people living in congregate settings, migrants, racialised persons, and over time, people living in communities with limited or no access to safe and effective COVID-19 vaccines.10

The scale, intensity and endurance of the COVID-19 health threat have created several windows of opportunity for global health law reform – including amendments to the IHR and a new pandemic treaty – for public health emergency preparedness and response.11 Whether such law-making reflexes will lead to improved preparedness and response depends, inter alia, on the degree to which states are willing to negotiate in good faith on the basis of solidarity and international human rights.12 Nearly a year since discussions for a new pandemic treaty first emerged, states have already tabled an array of proposals on possible treaty content.13 These proposals have been notably silent on what human rights frameworks contribute to public health emergency preparedness, and how they can best guide national and international responses once a public health emergency has emerged.14

Without meaningful consultation with civil society, community leaders, human rights activists, and experts,15 intergovernmental negotiations for global health law reform are unlikely to contend with the vast array of human rights issues exposed by the COVID-19 pandemic. Beyond dichotomies or continuums of binding and non-binding law, however, a burgeoning literature dedicated to the study of informal law-making recognises the influence of other actors at the margins of global governance, such as civil society organisations and transnational advocacy coalitions, on supranational law-making and law-abiding processes.16 This article argues that in the wake of COVID-19, networks of knowledge-based experts and practitioners of international law can mount a nimbler and more nuanced response to bridging normative gaps exposed by the pandemic through informal – or expert – standard-setting initiatives, charting a course towards the progressive conciliation of international human rights law and global health law as these relate to situations of public health emergency.

To advance this argument, we begin in Section 2 by describing how international legal experts and practitioners have successfully contributed to norm development in the past through expert standard-setting efforts. Using illustrative examples from the COVID-19 pandemic, we then offer three distinct pathways through which such initiatives may contribute to the progressive development of international legal norms: first, through a focus on pandemic preparedness, expert-led standards can bring together disparate norms from across existing regimes of international law and apply them to novel situations (e.g., pandemics) (Section 3); second, such processes can aid in providing nuanced guidance for the translation of legal norms from international to domestic fora, alleviating, for instance, the exceptional difficulties faced by judges and lawyers in assessing the legality of “lockdowns” under conditions of high scientific uncertainty (Section 4); finally, beyond a systemic conciliation of international legal regimes, epistemic communities within international law proffer normative interpretations that rise to address evolving challenges in public health emergency preparedness and response, building towards a progressive harmonisation of legal regimes for the governance of public health emergencies (Section 5).

2 Informal Standard-Setting within Epistemic Communities

Philip Jessup, former judge of the International Court of Justice, first referred to “transnational law” as ‘all law which regulates actions or events that transcend national frontiers …[including] [b]oth public and private international law …[plus] other rules which do not wholly fit into such standard categories’.17 Transnational law thus flexibly contemplates the contribution of a range of both binding (i.e., treaty) and non-binding norms (e.g., guidelines, codes), as well as a complex interplay of state and non-state actors, to the regulation of transnational behaviour.18

Harold Koh explains that international law acquires its “stickiness” through a repeated process of interaction and internalisation19 and this “transnational legal interaction” between state and non-state actors allows for the iterative contestation of the integrity of norms.20 This “transnational legal process” engages a variety of public and private actors from domestic and international fora to ‘make, interpret, internalize and enforce rules of transnational law’21 in recursive fashion.22

One such group of non-state actors – epistemic communities of experts in international law – have a long history of influence in transnational law-making.23 While the term “epistemic community” has been defined and applied in a variety of ways across disciplines, we adopt Peter Haas’ notion of ‘a network of professionals with recognized expertise and competence in a particular domain and an authoritative claim to policy-relevant knowledge within that domain’.24 Oscar Schacter discusses the role of international lawyers as an epistemic community with vested interest in ‘creating new law and extending existing law to meet emerging needs’,25 and describes the nature of works produced by such professional groups of international lawyers as the International Law Association (ILA) and the Institut de droit international as “prelegislative”.26

International law’s epistemic communities can undertake detailed studies on contemporary legal issues which in essence amount to the “informal codification” of particular topics.27 While not replacing the role of the UN General Assembly mandated International Law Commission (ILC), such epistemic communities may supplement the ILC’s work by examining areas of international law that remain low on the ILC’s list of priority issues. For instance, the ILA’s 1966-adopted Helsinki Rules on the Uses of the Waters of International Rivers played a key role in framing ‘equitable and reasonable utilization’ as the basic rule of international law for the transboundary use and development of waters.28 This contribution is acknowledged in the preamble of the 1997 Convention on the Law of the Non-Navigational Uses of International Watercourses, which makes reference to the ‘valuable contribution’ of NGOs in the ‘codification and progressive development of international law in this field’.29 More recently, the ILA has adopted standards on, inter alia, Legal Principles relating to Climate Change,30 and the IDI on Epidemics, Pandemics and International Law.31

Such informal standard-setting efforts are a longstanding and particularly influential source of norm development within the international human rights law regime. As early as the immediate post-WWII period, legal professionals were engaging in the submission of “human rights guiding principles” to advocate for the expansion of new international laws and legal authorities for human rights. While drafts of the Universal Declaration of Human Rights (UDHR) were in progress, for instance, the American Law Institute presented a Statement of Essential Human Rights to the UDHR drafting committee,32 and years later, John P. Humphrey – the United Nations’ first Director of the Human Rights Division – reflected in his memoir that he ‘borrowed freely from it’ in producing the original draft of the UDHR.33

Today, a wide range of human rights guiding principles produced by consensus among experts clarify and provide for a unification of developments in international law and standards in relation to contemporary legal issues.34 These principles are frequently taken up by courts, policy makers, legislators and international human rights bodies as authoritative interpretations of international standards.35 They can also serve as useful points of reference to guide planning and decision-making more broadly, and equip civil society advocates with tools for government accountability and the “vernacularisation” of human rights law as it relates to health.36 Even as they clarify the law, such normative instruments also allow for interpretations that are effective and responsive to evolving social challenges, and create pathways for international law’s progressive development to meet these challenges.37

The foregoing is, of course, predicated on the degree to which such principles are perceived as “legitimate.” As described by Franck, legitimacy within international law is a function of:

a rule or rulemaking institution which itself exerts a pull toward compliance on those addressed normatively because those addressed believe the rule or institution has come into being and operates in accordance with generally accepted principles of right process.38

Sepúlveda Carmona posits at least five ‘critical determinants’ of legitimacy for human rights principles adopted outside of an intergovernmental process. These determinants apply to both the process of rule adoption and the adopted rules themselves, and include: (1) the independence and expertise of the drafters and signatories; (2) the diversity of the drafters and signatories in terms of, inter alia, gender, geographical representation, knowledge of different social and legal systems and areas of expertise; (3) the rigour and persuasiveness of the principles; (4) practicality of the principles; and (5) validation of the principles through national and international fora and resource materials.39

When consultatively produced and effectively promoted, human rights guiding principles may therefore have important legal significance,40 and serve as the basis for the progressive development of global health law and its harmonisation with existing human rights law imperatives.41 In the remainder of this article, when describing international law’s “epistemic communities”, we refer to those holding various forms of knowledge and expertise deemed necessary for the standard-setting exercise, as clarified by Sepúlveda Carmona above. The next three sections aim to show how informal standard-setting initiatives among experts and practitioners of human rights and global health law are well-placed to provide for: (1) the restatement and unification of existing legal frameworks from international human rights law and global health law as these relate to public health emergency preparedness; (2) the translation of international legal standards for uptake by domestic judiciaries adjudicating cases within the context of public health emergencies; and (3) progressive interpretations of relevant law, taking into account the latest developments in law, standards, and jurisprudence, to chart the path for new normative developments.

3 Refocusing the Lens on Human Rights for Public Health Emergency Preparedness and Resilience

3.1 Myopia in the IHR and International Human Rights Law

The revised IHR codifies a mutually dependent set of obligations that states came to understand as necessary for a globally coordinated response to infectious disease outbreaks in the aftermath of SARS.42 These include obligations to promptly notify the WHO of all “events” which might constitute a public health emergency of international concern,43 to respond proportionately when public health risks arise in other countries, so as to avoid disincentivising future transparent notification,44 and to ‘undertake to collaborate’ with one another to develop and strengthen national public health capacities to prevent, detect and respond to outbreaks.45 While this latter obligation bears close semblance to elements of the right to health under the International Covenant on Economic, Social and Cultural Rights (ICESCR),46 the IHR does not reference international human rights standards in respect of the right to health, nor does it appear in this regard to require such collaboration in respect of broader social systems required to ensure pandemic preparedness. Indeed, although the revised IHR recognises the need for states to implement the instrument with ‘full respect for the dignity, human rights and fundamental freedoms of persons’47 and makes cursory reference to civil and political rights and freedoms,48 it remains chiefly an instrument prescribing technical and operational legal standards for international cooperation in outbreak control.

Yet it is not only the IHR that adopts a myopic view of the contribution of economic and social rights frameworks to pandemic preparedness, but also, disappointingly often, the international human rights law regime itself as understood by states and even international human rights experts and practitioners. Despite the recognition of the interdependence of all human rights, the trope remains too often to treat economic, social and cultural rights (ESCR) as ‘the Cinderella of the international human rights corpus’.49 Worse still, international human rights law standards, even on ESCR, often sideline global health law standards emanating from outside of the international human rights law regime. The UN Committee on Economic, Social and Cultural Rights’ (CESCR) General Comment 14 on the right to health,50 for example, makes no reference to the IHR or pandemic preparedness whatsoever, despite ICESCR’s explicit inclusion of the obligation for States to take measures to ensure the ‘prevention, treatment and control of epidemic … diseases’ as a component of the right to health.51

International human rights norms have been developed in somewhat greater detail in relation to the proportionality of rights restrictions in times of public health emergency, as synthesised under the Siracusa Principles on the Limitation and Derogations Provisions in the International Covenant on Civil and Political Rights (“Siracusa Principles”).52 Developed in 1984 through a standard-setting initiative among scholars of international law convened by a coalition of NGOs, the Siracusa Principles sought to interpret permissible limitations to, and derogations from, civil and political rights (such as freedom of assembly) to achieve ‘an effective implementation of the rule of law’ during national states of emergency.53 While the Siracusa Principles make fleeting reference to both public health emergencies and previous version of the IHR,54 they do not provide situation-specific guidance in relation to public health emergencies,55 beyond the mere reference to public health as a justification for rights restricting measures ‘specifically aimed at preventing disease or injury or providing care for the sick and injured’.56 More fundamentally, the intended application of the Siracusa Principles is focused exclusively on restrictions or derogations from civil and political rights in response to the onset of public health emergencies, as opposed to emergency prevention and preparedness through the realization of economic and social rights.

3.2 Prioritizing Economic and Social Rights Frameworks for Pandemic Preparedness

Arguably, one fundamental weakness of both the IHR and the Siracusa Principles is that legal standards are aimed primarily at providing guidance to states reacting to already existing or impending emergencies, and not to contemplating measures for upstream prevention. Emergencies are approached as isolated events occurring without social, economic, and political contexts and devoid of systemic or structural contributory or constitutive causes.

At an early stage in the COVID-19 pandemic, the CESCR noted that ‘decades of underinvestment in public health services and other social programmes’ have weakened them such that many states are ‘ill equipped to respond effectively and expeditiously to the intensity of the current pandemic’.57 Otherwise stated, resilience to public health threats is inextricably bound up with the social, economic, political, and environmental conditions in which people live and the distribution of power and resources across communities and countries.58

The CESCR’s statement may, for instance, be at the heart of why Italy’s affluent Lombardy province – with a health system that steadily marched towards privatisation in the years prior to COVID-19 – was so severely hit by the pandemic in early 2020, while other comparable regions weathered the emergency with less stringent public health measures.59 When a public health emergency strikes eroded health systems and public institutions (e.g., schools and community housing), restrictions on human rights seemingly become an urgent and foregone conclusion, instead of questions of proportionality deliberated through mechanisms of public accountability and debate.

It is here that the contribution of economic and social rights frameworks becomes abundantly clear, requiring states to respect, protect and fulfil human rights by taking in particular positive measures to “facilitate”, “provide”, and “promote” access not only to health services, good and facilities, but the full range of social determinants of health including food, water, social security and housing, and indeed the full range of ESCR.60

Constrained by limited resources and time, states engaged in new law reform initiatives in COVID-19’s wake are unlikely to undertake the nuanced study needed to align standards from global health law with the full breadth of standards from international human rights law. Such analyses are nevertheless necessary for the conceptualisation of fairer and more effective public health emergency preparedness and response measures. They can be mobilised through epistemic communities of international law experts, who are not only well-placed to articulate what diverse legal frameworks contribute to public health emergency measures, but also bring a contextualized understanding of the impact of COVID-19, having often documented and analysed government failures in preparedness and response.61 The latter form of knowledge also places epistemic communities in an ideal position to contribute nuanced guidance on how to translate international standards to the frontlines of public health emergency preparedness and response, as we discuss in the next section.

4 Translating Norms from the International to the Frontlines

4.1 Contending with Scientific Uncertainty under International Human Rights Law

At the outset of a novel infectious disease outbreak, there will often be significant uncertainty attributed not simply to the evolving scientific knowledge about a pathogen, but also to the most effective responses to such an emergency. As circumstances may change on a daily basis, governments must be able to respond dynamically to rapidly changing circumstances.

On the one hand, it might therefore be argued that human rights law and standards should not operate too rigidly, lest they hamper necessary emergency response measures. On the other hand, however, the pace and range of decisions that must be taken by authorities provide a clear platform from which rapidly changing responses can be built and against which they can be evaluated. As the CESCR has noted, responses to public health emergencies ‘should be based on the best available scientific evidence to protect public health’.62 Absence of conclusive information or overwhelming evidence cannot excuse response measures which ignore the best available evidence. The IHR take a similar approach.63

Indeed, ICESCR itself entrenches a right to enjoy the benefits of scientific progress,64 in terms of which states have a core, immediately realisable obligation to ‘adopt mechanisms aimed at aligning government policies and programmes with the best available, generally accepted scientific evidence’, an obligation that takes on even greater significance in the context of public health emergencies, as timely access to information has the effect of ‘controlling … epidemics and preventing them from becoming a pandemic’.65

The international human rights law framework therefore presents at least three advantages to states in their efforts to respond to public health emergencies in the context of scientific uncertainty. First, it reminds states that in order to comply with human rights obligations, the best available evidence must consistently be drawn upon. Second, where even the best available evidence is inconclusive, international human rights law provides principled guidance that can assist in weighing competing policy options and establishing policy priorities. Third, international human rights law provides a globally accepted and evidence based regime which can assist the mediation of disagreements between states in coordinating international responses, particularly during global pandemics.

4.2 Adjudicating the Legality of Lockdowns in Times of Public Health Emergency

A concrete example of a policy option frequently adopted in the wake of COVID-19 which has an undeniably vast impact on human rights is the ill-defined smorgasbord of policy measures described as “lockdowns”. Haider and colleagues propose that “lockdown” in the specific context of COVID-19 should be understood as ‘a set of measures aimed at reducing transmission of COVID-19 that are mandatory, applied indiscriminately to a general population and involve some restrictions on the established pattern of social and economic life’.66 The authors note that lockdowns may consist of a combination of interventions such as: (1) restrictions on the movement of persons in and out of certain areas; (2) restrictions on the hours and purposes for which movement outside of the home is permitted; (3) prohibition of gatherings; and (4) closure of establishments/premises (e.g., businesses, school, universities, sporting venues and religious establishments).67

What is evident from this definition and from the almost global experience of lockdowns is that such measures have frequently been presented by government authorities as a set of policy actions necessary for protecting public health in the context of COVID-19. Although different combinations of measures were implemented in different places, and different names were sometimes given to these measures, their impact on human rights has been ubiquitous.68

Admittedly, however, in the context of COVID-19 it has been difficult at times to even determine the best available scientific evidence, leading to disagreements and variance between and within states in respect of the best policy measures to protect public health and thereby realize the right to health. As a result, COVID-19 response measures have frequently been the subject of litigation,69 with hundreds of cases being documented on a range of restrictive measures falling within the broad definition of “lockdown”.70 How, however, are courts to determine the necessity and proportionality of restrictive measures of such a wide magnitude in politically charged circumstances and in the face of such scientific uncertainty? Arguably, these legal requirements are more neatly and easily applied to specific policies instead of broad packages of measures, such as lockdowns, taken on limited available evidence.

Therefore, although some such litigation has been useful in insisting on evidence-based responses to COVID-19, a general trend towards judicial deference in the application of standards of reviews is observable in decisions across the world on the specific and often explicitly stated basis of scientific and policy uncertainty in the face public health emergency. Courts have often, instead of asking (and being asked) whether lockdown measures are necessary and proportionate, merely questioned the rationality such of measures – a much lower and more deferential threshold.71 The trend towards deference was particularly pronounced at the beginning of the pandemic.72

This judicial reluctance, particularly in connection with reviewing broad and combined sets of public health measures, motivates strongly in favour of a clarification and coalescence of standards applicable to rights restricting measures purporting to respond to public health emergencies in terms of both international human rights law and global health law.73 Ultimately given the fact that public health objectives are interlinked with human rights,74 courts must be empowered to adjudicate on the basis that the protection of human rights – even where this might divert or inhibit government responses to public health emergencies – may well be appropriate and even necessary.

Faced with a pandemic and the implementation of extremely broad sets of lockdown measures, it is arguable that courts have sometimes balked at intervening precisely because of the breadth of these measures and the enormity of their potential impact on human rights. A clarification of both when and how75 courts might be required to intervene with overly restrictive public health measures is therefore desperately needed. It is here that epistemic communities of experts in international law can bring added value through informal standard-setting initiatives. When properly constituted, members of such communities will have networks with vast reach and deep contextualised knowledge of law implementation challenges in local settings. Consensus-based standard-setting initiatives among such experts can help provide guidance that translates international standards for application at the frontlines of public health emergencies. Though here we have focused on courts adjudicating challenges to lockdown mandates, such clarifications would also help guide the decision-making of legislators and policy makers tasked with assessing the best available evidence and deducing the legal measures necessary and proportionate to protect public health, and by extension, to realise the right to health in the face of public health emergencies.

5 Solidarity: An Emerging Norm of Global Health Law?

5.1 The Rhetoric of Solidarity in the COVID-19 Response

As early as March 2020, the UN Secretary-General called on governments, researchers, businesses, communities, and individuals ‘to act in solidarity in new, creative, and deliberate ways for the common good and based on the core United Nations values that we uphold for humanity’.76 Shortly thereafter, the UN General Assembly adopted Resolution 74/270 (‘Global Solidarity to Fight the Coronavirus disease’) recognising that the pandemic ‘requires a global response based on unity, solidarity and renewed multilateral cooperation’.77 Appeals to “solidarity” in the pandemic response, however, suffer from a general lack of conceptual clarity and precision in the law. More fundamentally, they mask the limits of the current international legal framework, in which ‘questions of global import are decided by economic and political criteria, and not in terms of human rights or the interests of other populations’.78

The notion of solidarity manifests itself in a variety of ways depending on the epistemic framework in which it is deployed. Under the UN Charter, Article 56 imposes a general duty on States to take ‘joint and separate action’ for the achievement of inter alia:

  1. higher standards of living, full employment, and conditions of economic and social progress and development

  2. solutions of international economic, social, health and related problems; and

  3. universal respect for, and observance of, human rights and fundamental freedoms for all, without distinction as to race, sex, language or religion.79

Solidarity as international duty finds more fulsome expression and treatment in the corpus of international human rights law. At a general level, solidarity rights connote extraterritorial obligations of international cooperation and shared but also differentiated responsibilities of assistance across nations. To this end, the 1993 Vienna Declaration and Programme of Action recognises ‘an increased and sustained effort of international cooperation and solidarity’ as being essential to progress in human rights endeavours.80 The right to social security, as set out under Article 22 of the UDHR, is further entitled to realisation ‘through national effort and international co-operation’ in accordance with the organisation and resources of each state, and everyone is entitled to ‘a social and international order’ in which rights and freedoms under the UDHR can be fully realised.81

The ICESCR recognises the broader role of the international community as a whole in realising human obligations set out within it. Notably, Article 2(1) of the ICESCR generally calls on States Parties to ‘take steps, individually and through international assistance and co-operation, especially economic and technical’ with a view to achieving progressively the full realisation of ICESCR rights, while specific provisions including Articles 11(2) on the right to be free from hunger, 15(4) on ‘benefits to be derived from the encouragement and development of international contacts and cooperation in the scientific … fields’ and 23 on the role of ‘international action for the achievement of [ICESCR] rights’ further operationalise themes of cooperation and collaboration in fulfilling ESCR rights.82

On the right to health, in particular, the influential 1978 Declaration of Alma- Ata delivered at the International Conference on Primary Health Care expressed concern about the ‘existing gross inequality in the health status of the people particularly between developed and developing countries’, and added that an ‘acceptable level of health for all the people of the world … can be attained through a fuller and better use of the world’s resources, a considerable portion of which is now spent on armaments and military conflicts’. Moving beyond a focus on state obligations, the Declaration further urged:

… governments, WHO and UNICEF, and other international organizations, as well as multilateral and bilateral agencies, nongovernmental organizations, funding agencies, all health workers and the whole world community to support national and international commitment to primary health care and to channel increased technical and financial support to it.83

This framing of extraterritorial obligations relating to the right to health has been taken up and further developed in authoritative interpretations of the right to health as it is enshrined in the ICESCR, with General Comment 14 elucidating the ‘essential role of international cooperation and … the commitment to take joint and separate action to achieve the full realization of the right to health’.84 Concretely, the CESCR has interpreted the right to health as requiring States Parties to ‘prevent third parties from violating the right in other countries’, ‘facilitate access to essential health facilities, goods and services in other countries wherever possible, and provide the necessary aid when required’, and ‘ensure that the right to health is given due attention in international agreements’ as well as ensure that such instruments ‘do not adversely impact upon [it]’.85 The CESCR has further specifically underscored a “collective responsibility” with respect to addressing the spread of infectious diseases, denoting that ‘economically developed States parties have a special responsibility and interest to assist the poorer developing States in this regard’.86

Solidarity has elsewhere been considered a principle of international law within the 2000 UN Millennium Declaration,87 and the former Independent Expert on Human Rights and International Solidarity, Rudi Muhammad Rizki, who underscored in his 2010 report that ‘international solidarity is … essential to the international community’s pursuit of peace, sustainable development and the eradication of poverty’.88

International solidarity is typically conceptualised as extending beyond notions of charity, aid, international assistance and cooperation, and humanitarian assistance to incorporate, per the Human Rights Council, concern for:

… sustainability in international relations, the peaceful coexistence of all members of the international community, equal partnerships and the equitable sharing of benefits and burdens, refraining from doing harm or posing obstacles to the greater well-being of others, including in the international economic system and to our common ecological habitat, for which all are responsible.89

Past Independent Expert on Human Rights and International Solidarity mandate holders have sought to interpret the extent to which solidarity represents legal obligation. Rizki, for instance, defined international solidarity as:

The union of interests, purpose and actions among States and social cohesion between them, based on the interdependence of States and other actors to preserve the order and very survival of international society, and to achieve common goals that require international cooperation and collective action. Global solidarity encompasses the relationship of solidarity among all stakeholders in the international community.90

Drawing from the above, in the as-of-yet unadopted Draft declaration on the right to international solidarity, Rizki’s successor, Virginia Dandan, characterised international solidarity as a ‘foundational principle underpinning contemporary international law’91 and parsed the concept into three distinct but related components: (1) preventive solidarity (or ‘collective actions to safeguard and ensure the fulfilment of all human rights’); (2) reactive solidarity (or ‘collective actions of the international community to respond to the adverse impacts of natural disasters, health emergencies, epidemic diseases and armed conflict, with the goals of alleviating human suffering, mitigating further damage and ensuring that the response complies fully and effectively with States’ obligations’); and (3) international cooperation, (or the ‘premise that some states may not possess the resources or capacity necessary for the full realization of the rights set forth in international human rights treaties [and] States in a position to do so should provide international assistance, acting separately or jointly, to contribute to the fulfilment of human rights in other States’).92

5.2 Charting the Path for Global Health Law’s Progressive Development

The foregoing provides only a brief illustration of the variety of ways through which the notion of international solidarity manifests across regimes of international law and even within international human rights law itself. The clear absence of “solidarity” in state responses to COVID-19, evidenced perhaps most vividly by the incapacity or unwillingness to ensure equitable COVID-19 vaccine access, however, demonstrates that the clarification of the content and extent of legal obligations relating to solidarity in the context of public health emergencies is critical to the future development of both global health law and international human rights law.93

It is within such liminal normative spaces that international lawyers can creatively activate their expertise and engage in particularly influential and progressive interpretations of international law. As these relate to situations of public health emergency in particular, international lawyers engaged in informal standard-setting initiatives can help redefine solidarity as transcending and displacing notions of international assistance in favour of a spirit of cooperation, mutual interdependence, collective responsibility, and extra-territorial obligation that recognizes the obligations and duties of both states and non-state actors in upholding human rights in the global public health response.94

6 Conclusion

Global crises often bring to the fore the tacit maladies within existing international legal frameworks. In doing so, they revive the international community’s enthusiasm for formal law-making exercises, spangled with speeches from world leaders professing to build upon lessons learned in the aftermath of catastrophe. The COVID-19 pandemic has once again catalysed such a process. Yet the reality is that treaty reform and treatymaking exercises are often arduously slow and inflexible, and their end results may well be a mosaic of barren compromises that belie the ambitious vigour with which states first entered the law-making process.

The vast and manifold impact of the COVID-19 pandemic on human rights undeniably reveals the need to repair international legal frameworks on public health emergency preparedness and response. Whereas states are reluctant to operate beyond limited frames of reference and narrow conceptualisations of existing legal authorities, epistemic communities of international law experts and practitioners have a track record of engaging in informal standard-setting efforts that contribute in gradual but pioneering ways to normative developments that are fit for evolving global challenges.

There are at least three reasons why such informal standard-setting initiatives are well-adapted to help mend the inadequacies of existing legal frameworks in the wake of COVID-19.

First, such initiatives can help articulate the coalescence of seemingly incongruent legal authorities between global health law and international human rights law, allowing for an enhanced understanding of what public health emergency preparedness requires of states.

Second, through the contextualised knowledge of participating experts, informal standard-setting exercises can help generate interpretations of international law that translate to domestic fora, and guide those at the frontlines of a public health emergency, such as the judiciary, in their decision-making.

Third, when effectively harnessed against international law’s “grey areas”, informal standard-setting initiatives provide avenues for progressive interpretations that take into account international law’s past, present and future.

Beyond the extremes of crisis-provoked norm cascades or business-as-usual lies an expansive landscape of evolving international legal thought articulated through an iterative, transnational legal process of contestation, deliberation, and consensus within international law’s epistemic communities. The contribution of such processes to humankind’s reckoning with looming pandemics and other public health emergencies should not be underestimated.


The authors acknowledge ongoing participation in an informal standard-setting exercise of the nature described in this article. The views expressed in this article belong solely to the authors and not to the institutions with which they are affiliated, nor more broadly to the views of other participants who have contributed to the standard development process. The authors are nevertheless grateful for the many intellectually rigorous discussions held among colleagues that facilitated the elaboration of arguments made in this article.


Sara E. Davies, Adam Kamradt-Scott and Simon Rushton, Disease Diplomacy: International Norms and Global Health Security (2015) p. 45.


World Health Organization, International Health Regulations enter into force: New opportunity to respond to international public health threats (2007).


WHO, International Health Regulations, WHA Resolution 58.3, Revision of the International Health Regulations, 23 May 2005.


Brigit Toebes, “Global Health Law: Defining the Field”, in G.L. Burci and B. Toebes (eds.), Research Handbook on Global Health Law (2018) pp. 2–23; Lawrence O. Gostin and Allyn L. Taylor, “Global Health Law: A Definition and Grand Challenges”, 1 Public Health Ethics (2008) pp. 53–63.


Stephen D. Krasner, “Structural Causes and Regime Consequences: Regimes as Intervening Variables”, 36 International Organization (1982) pp. 185–205; Steven J. Hoffman, “The Evolution, Etiology and Eventualities of the Global Health Security Regime”, 25 Health Policy & Planning (2010) pp. 510–522.


ILA, “Global Health Law Part II: Committees”, 78 International Law Association Reports of Conferences (2018) pp. 339–379, p. 345.


Steven J. Hoffman, “Making the International Health Regulations Matter: Promoting Compliance through Effective Dispute Resolution”, in S. Rushton and J. Youde (eds.), Routledge Handbook of Global Health Security (2014) pp. 239–251.


See Esmé Berkhout et al., The Inequality Virus: Bringing together a world torn apart by coronavirus through a fair, just and sustainable economy (2021), p. 83, available at


Antonio Guterres, The world faces a pandemic of human rights abuses in the wake of Covid-19, The Guardian (22 February 2021), available at


See International Commission of Jurists, Living Like People Who Die Slowly: The Need for Right to Health Compliant COVID-19 Responses (2020), available at


See for instance, WHA Special Session Resolution, 1 December 2021.


Sharifah Sekalala, Soft Law and Global Health Problems: Lessons from Responses to HIV/AIDS, Malaria and Tuberculosis (2017). Note that scholars of global health law remain divided on the contest of political wills and agendas in global health law reform efforts. See for instance Nithin Ramakrishnan, “The Pandemic Treaty Proposal Expands Global Health Inequities”, Peoples Dispatch (19 November 2021), at <>.


Balcazar Moreno, Ana Beatriz, Gian Luca Burci and Adam Patryk Strobejko, Taxonomy of Substantive Proposals for a New Instrument on Pandemic Prevention, Preparedness and Response (2022).


Ibid.; Timothy Fish Hodgson et al., “Human Rights Must Guide a Pandemic Treaty”, Health and Human Rights Journal (20 November 2021), available at




Harold Hongju Koh, “Transnational Legal Process The 1994 Roscoe Pound Lecture”, 75 Nebraska Law Review (1996) pp. 181–208.


Philip Jessup, Transnational Law (1965) p. 1.


Patrick M. Cottrell and David M. Trubek, “Law as Problem Solving: Standards, Networks, Experimentation, and Deliberation in Global Space”, 21 Transnational Law (2012) pp. 360–393, p. 361.


Koh, supra note 16, p. 204.


Ibid., p. 205.


Harold Hongju Koh, “Review Essay: Why Do Nations Obey International Law?”, 106 Yale Law Journals (1997) pp. 2599–2659, p. 2626.


Gregory Shaffer refers to “recursivity” as the multidirectional, diachronic process of legal change. Shaffer writes: ‘[t]he recursivity approach [to transnational legal process] posits that changes and transformations of states will be a function of three processes operating concurrently and cyclically – a politics within international and transnational processes; a politics within domestic processes; and a politics between them involving intermediaries.’ See Gregory Shaffer, “Transnational Legal Process and State Change”, 37 Law and Social Inquiry (2012) pp. 229–264, p. 239.


In 1907, for instance, Baldwin listed hundreds of meetings termed “leading congresses, associations and societies of an unofficial description.” See Simeon Baldwin, “The International Congresses and Conferences of the Last Century as Forces Working Toward the Solidarity of the World”, 1 American Journal of International Law (1907) pp. 565–578, p. 572.


Peter M. Haas, “Introduction: Epistemic Communities and International Policy Coordination”, 46 International Organization (1992) pp. 1–35, p. 3.


Oscar Schachter, “Invisible College of International Lawyers”, 72 Northwestern University Law Review (1977) pp. 217–226.


Ibid., p. 224.


Alan E. Boyle and Christine Chinkin, The Making of International Law (2015) p. 163.




Convention on the Law of the Non-navigational Uses of International Watercourses, New York, 21 May 1997, United Nations Treaty Series vol. 2999, No. 52106, Preamble.


Shinya Murase and Lavanya Rajamani, “Legal Principles Relating to Climate Change Part II: Committees”, 76 International Law Association Report of Conferences (2014) pp. 330–386.


Resolution of the Institut de droit international, “Epidemics, Pandemics and International Law” (4 September 2021), Shinya Murase (Chair).


American Law Institute, Statement of Essential Human Rights, available at


John Peters Humphrey, Human Rights and the United Nations: A Great Adventure (1983).


See for instance: Siracusa Principles on the Limitation and Derogation Provisions in the International Covenant on Civil and Political Rights (1984), the Limburg Principles on the Implementation of the International Covenant on Economic, Social and Cultural Rights (1986), the Maastricht Guidelines on Violations of Economic, Social and Cultural Rights (1997), Yogyakarta Principles on the Application of International Human Rights law in relation to Sexual Orientation and Gender Identity (2006); the Maastricht Principles on Extraterritorial Obligations of States in the Area of Economic, Social and Cultural Rights (2011); Yogyakarta Principles Plus 10: Additional Principles and State Obligations on the Application of International Human Rights Law in Relation to Sexual Orientation, Gender Identity, Gender Expression And Sex Characteristics (2017); Abidjan Principles on the human rights obligations of States to provide public education and to regulate private involvement in education (2019). See also: United Nations, Seventy Years of the International Law Commission: Drawing a Balance for the Future (2021); Magdalena Sepúlveda Carmona, “Human Rights Guiding Principles: A Forward-Looking Retrospective”, in F. Adamson, S. Aubry, M. de Koning and D. Dorsi (eds.), Realizing the Abidjan Principles on the Right to Education (2021) pp. 25–51.


Jennifer Sellin, “Access to Medicines and the TRIPS Agreement”, in M. Gibney, G. Erdem Turkelli, M. Krajewski and W. Vandenhole (eds.), The Routledge Handbook of Extraterritorial Human Rights Obligations (2022) pp. 339–350, p. 341.


See Sepúlveda Carmona, supra note 34; UN. Doc E/CN.4/Sub.2/1985/4 (1985); Howard B. Tolley, The International Commission of Jurists: Global Advocates for Human Rights (1994). See for example Michael O’Flaherty, “The Yogyakarta Principles at Ten”, 33 Nordic Journal of Human Rights (2015) pp. 280–298; Howard B. Tolley, The International Commission of Jurists: Global Advocates for Human Rights (1994); Gregory Shaffer, “Transnational Legal Ordering and State Change”, in G. Shaffer (ed.), Transnational Legal Ordering and State Change (2012) pp. 1–22, 122.


Roberta Cohen, “The Guiding Principles on Internal Displacement: An Innovation in International Standard Setting”, 10 Global Governance: A Review of Multilateralism and International Organizations (2004) pp. 459–480.


Thomas M. Franck, The Power of Legitimacy among Nations (1990) p. 24.


Sepúlveda Carmona, supra note 34, p. 7; See also Cohen, supra note 37, p. 468.


See Cohen, supra note 37.


Note for instance that the 2012 African Union Convention for the Protection and Assistance of Internally Displaced Persons in Africa (Kampala Convention of 23 October 2009) reflects the Guiding Principles on Internal Displacement (IDP Principles).


Pedro A. Villarreal, Roojin Habibi and Allyn Taylor, “Strengthening Monitoring of States’ Compliance with the International Health Regulations”, International Organizations Law Review (2022) forthcoming.


IHR, Arts. 6 and 7.


IHR, Art. 43.


IHR, Art. 44.


Brigit Toebes, Lisa Forman and Giulio Bartolini, “Toward Human Rights-Consistent Responses to Health Emergencies: What Is the Overlap between Core Right to Health Obligations and Core International Health Regulation Capacities?”, 22 Health and Human Rights Journal (2020) pp. 99–112.


IHR, Art. 3(1).


See IHR, Arts. 17 (criteria for recommendations), 23 (health measures on arrival and departure), 31 and 32 (health measures related to the entry and treatment of travellers), 42 (implementation of health measures), 43 (additional health measures) and 45 (treatment of personal data).


Sandra Fredman, Human Rights Transformed: Positive Rights and Positive Duties (2008) p. 2.


CESCR, General Comment No. 14: The Right to the Highest Attainable Standard of Health (Art. 12 of the Covenant), E/C.12/2000/4, 11 August 2000.


Ibid., para. 16; ICESCR, Art. 12(c).


The Siracusa Principles on the Limitation and Derogation Provisions in the International Covenant on Civil and Political Rights, 7 Human Rights Quarterly (1985) pp. 3–14; Roojin Habibi et al., “The Stellenbosch Consensus on Legal National Responses to Public Health Risks Clarifying Article 43 of the International Health Regulations”, International Organizations Law Review (2020), available at


Symposium: Limitation and Derogation Provisions in the International Covenant on Civil and Political Rights, 7 Human Rights Quarterly (1985) pp. 1–2.


Siracusa Principles iv, at paras. 25–26 reads:

“Public health may be invoked as a ground for limiting certain rights 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.

Due regard shall be had to the international health regulations of the World Health Organization.”


Nina Sun, “Applying Siracusa: A Call for a General Comment on Public Health Emergencies”, Health and Human Rights Journal (23 April 2020), available at




CESCR, Statement on the coronavirus disease (COVID-19) pandemic and economic, social and cultural rights, E/C.12/2020/1 (17 April 2020), paras. 4 and 24, available at


Sharifah Sekalala et al., “Health and Human Rights Are Inextricably Linked in the COVID-19 Response”, 5 BMJ Global Health (2020) e003359.


Rossella de Falco, Italy’s experience during COVID-19: the limits of privatisation in healthcare, The Global Initiative for Economic, Social and Cultural Rights, Policy Brief (2 June 2021).


See for instance ICESCR Arts. 6 (the right to work), 7 (the right to just and favourable conditions of work), 9 (the right to social security), 11 (the right to an adequate standard of living), 13 (the right to education) and 15 (the right to enjoy the benefits of scientific progress and its applications). See also CESCR, General Comment No. 25 (2020) on science and economic, social and cultural rights, E/C.12/GC/25, 6 March 2020; CESCR, General Comment No. 23 (2016) on the right to just and favourable conditions of work, E/C.12/GC/23, 4 March 2016; CESCR, General Comment No. 22 (2016) on the right to sexual and reproductive health, E/C.12/GC/22, 4 March 2016; CESCR, General Comment No. 19 on the right to social security, E/C.12/GC/19, 4 February 2008; CESCR, General Comment No. 17: The right to water, E/C.12/2002/11, 20 January 2003; CESCR, General Comment No. 12 on the right to adequate food, E/C.12/1999/5, 12 May 1999.


Cohen, supra note 37, p. 465. Such interpretative analyses are also in line with the principle of systemic integration, cemented in the Vienna Convention of the Law of Treaties, which reads at Article 31(3)(c): ‘There shall be taken into account, together with the context … (c) any relevant rules of international law applicable in the relations between the parties.’ See also: Report of the Study Group of the International Law Commission “Fragmentation Of International Law: Difficulties Arising From The Diversification And Expansion Of International Law”, A/CN.4/L.682 (13 April 2006), para. 168, available at


CESCR, Statement on the coronavirus disease (COVID-19) pandemic, supra note 56.


IHR, Art. 43(2)(a)–(c); See also Habibi et al., supra note 52, pp. 59–60.


ICESCR, Art. 15(1)(b).


CESCR, General Comment No. 25 (2020) on science and economic, social and cultural rights (article 15 (1) (b), (2), (3) and (4) of the International Covenant on Economic, Social and Cultural Rights), E/C.12/GC/25, 30 April 2020, paras. 52, 82.


Najmul Haider et al., “Lockdown Measures in Response to COVID-19 in Nine Sub-Saharan African Countries”, 5 BMJ Global Health (2020) e003319, p. 2.


Ibid., p. 3.


Sophia A. Zweig et al., “Ensuring Rights while Protecting Health: The Importance of Using a Human Rights Approach in Implementing Public Health Responses to COVID-19”, 23 Health and Human Rights Journal (December 2021); Bonavero Institute for Human Rights, A Human Rights and Rule of Law Assessment of Legislative and Regulatory Responses to the COVID-19 Pandemic across 27 Jurisdictions (30 October 2020), available at


Tom Ginsburg and Mila Versteeg, “The Bound Executive: Emergency Powers during the Pandemic”, 19 International Journal of Constitutional Law (2021) pp. 1498–1535.


COVID-19 Litigation Open Access Database, available at


Safura Abdool Karim and Petronell Kruger, “Which Rights? Whose Rights? Public Health and Human Rights through the Lens of South Africa’s COVID-19 Jurisprudence”, 11 Constitutional Court Review (2021) pp. 533–560; Dan Mafora, COVID-19 and Courts Symposium: The Amalgamation of Powers in South Africa During the COVID-19 Pandemic, Opinio Juris, 27 July 2021, available at; Martin van Staden, “Constitutional Rights and Their Limitations: A Critical Appraisal of the COVID-19 Lockdown in South Africa”, 20 African Human Rights Law Journal (2020), pp. 484–511.


Patricia Popelier et al., “The Role of Courts in Times of Crisis: A Matter of Trust, Legitimacy and Expertise”, available at; Claudia Geiringer and Andrew Geddis, “Judicial Deference and Emergency Power: A Perspective on Borrowdale v Director-General” (15 September 2020), available at


Although there are some strong exceptions: Timothy Fish Hodgson, “COVID-19 and Africa Symposium: Lockdowns, Separation of Powers and the Right to Social Security in Malawi (Part 1)”, 8 December 2020, Opinio Juris, available at; Timothy Fish Hodgson, “COVID-19 and Africa Symposium: Lockdowns, Separation of Powers and the Right to Social Security in Malawi (Part 2)”, 8 December 2020, Opinio Juris, available at


Abdool Karim and Kruger, supra note 71; Jonathan M. Mann et al., “Health and Human Rights”, 1 Health and Human Rights Journal (1994) pp. 7–23, p. 8; Lawrence O. Gostin and Lindsay F. Wiley, Public Health Law: Power, Duty, Restraint (3rd Ed, 2016) pp. 13–15.


Courts with more flexible procedures such as the dialogic approach adopted by the Indian Courts, might arguably fare better in emergency circumstances. See Gautham Bhatia, “COVID-19 and Courts Symposium: India: Covid-19, the Executive, and the Judiciary”, 26 July 2021, Opinio Juris, available at; International Commission of Jurists, “Unprepared and Unlawful: Nepal’s Continued Failure to Realize the Right to Health During the COVID-19 Pandemic”, September 2021, available at


United Nations, Shared Responsibility, Global Solidarity: Responding to the socio-economic impacts of COVID-19 (2020), available at


UN General Assembly Resolution 74/270, Global solidarity to fight the coronavirus disease 2019 (COVID-19), A/RES/74/270 (2020). See also World Health Assembly, Resolution WHA73.1, COVID-19 Response, (2020); UN Security Council Resolution 2532, S/RES/2532 (2020).


Guillermo E. Estrada Adan, “From Cooperation to Solidarity: A Legal Compass for Pandemic Lawmaking”, 3 November 2021, available at


UN Charter, Arts. 55 and 56.


Vienna Declaration and Programme of Action, Preamble.


UDHR, Arts. 22 and 28.


ICESCR, Arts. 2(1), 11(2), 15(4), and 23.


Alma-Ata Declaration, Report of the International Conference on Primary Health Care, Alma-Ata, 6–12 September 1978, in: World Health Organization, “Health for All” Series, No. 1, WHO, Geneva, 1978, Arts. II and X.


CESCR, General Comment 14, para. 39.


CESCR, General Comment 14, para. 39; Since General Comment 14, the CESCR has expressly noted in General Comment 22 that ‘States that are in a position to do so must respond to [requests for international cooperation and assistance] in good faith and in accordance with the international commitment of contributing at a minimum 0.7 per cent of their gross national income for international cooperation and assistance.’ See CESCR, General Comment No. 22 (2016) on the right to sexual and reproductive health (article 12 of the International Covenant on Economic, Social and Cultural Rights), E/C.12/GC/22, 2 May 2016, para. 50.


CESCR, General Comment 14, para. 40.


Report of the Independent Expert on Human Rights and International Solidarity, Rudi Muhammad Rizki, A/HRC/15/32 and Corr.1, 5 July 2010, paras. 14–16; United Nations Millennium Declaration (2000), available at, para. 6.


Report of the Independent Expert on Human Rights and International Solidarity, supra note 87, para. 6.8.


Ibid., para. 58; See also A/HRC/RES/15/13, para. 2.


Ibid., para. 57.


Report of the Independent Expert on Human Rights and International Solidarity, A/HRC/35/35, 25 April 2017, Annex, Art. 1(2).


Ibid., Art. 2.


International solidarity in aid of the realization of human rights during and after the coronavirus disease (COVID-19) pandemic Report of the Independent Expert on human rights and international solidarity, Obiora Chinedu Okafor, A/HRC/47/31, 13 April 2021; Sharifah Sekalala et al., “Decolonising Human Rights: How Intellectual Property Laws Result in Unequal Access to the COVID-19 Vaccine”, 6 BMJ Global Health (2021) e006169; International Commission of Jurists, Human Rights Obligations of States to not impede the Proposed COVID-19 TRIPS Waiver: Expert Legal Opinion (2021), available at


ETO Consortium, The Maastricht Principles on Extraterritorial Obligations of States in the Area of Economic, Social and Cultural Rights (2013). Under the Maastricht Principles, extraterritorial obligations (ETOs) are: ‘… obligations relating to the acts and omissions of a State, within or beyond its territory, that have effects on the enjoyment of human rights outside of that State’s territory; and obligations of a global character that are set out in the Charter of the United Nations and human rights instruments.’

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