By Timothy Fish Hodgson, Roojin Habibi, and Alicia Ely Yamin
In developing the digital symposium, From Principles to Practice: Human Rights and Public Health Emergencies (which ran from October – December 2023), as editors we endeavored to get scholars, human rights advocates, judges, and policy makers to engage critically with the expert Principles and Guidelines on Human Rights and Public Health Emergencies (the PHE Principles), published by the International Commission of Jurists and the Global Health Law Consortium in May 2023. In doing so, we encouraged contributors to comment on the Principles’ potential usefulness as guidance in addressing real emergency situations, as well as any possible gaps and weaknesses.
While summarizing the entire content of the 13 blogs comprising this symposium in any depth is not possible here, this concluding post will attempt to synthesize some of the major inputs from the contributions. We also provide some of our own observations, as participants in the drafting of the Principles, with the aim of pushing the discussion prompted by the posts forward.
The Purpose of the Principles
In their contribution, Gostin and Friedman provide some context for the development of the PHE Principles by explaining the deficiencies in the Siracusa Principles on the Limitation and Derogation Provisions in the International Covenant on Civil and Political Rights (Siracusa Principles). While receiving significant global traction and acceptance since their publication in 1985, the Siracusa Principles, the authors argue, proved to be simply “unequal to the task” of guiding States’ conduct in the context of COVID-19 because they are “unable to speak in any significant detail to the particular concerns of public health crises.” Without adequate guidance for how to comply with human rights in the context of public health emergencies, the authors therefore noted that States commonly “exceeded permissible derogations from the ICCPR” and faced “little accountability for their actions whether on domestic or international levels.”
The inadequacy of the Siracusa Principles in addressing the wide ranging issues arising in the specific context of public health emergencies was indeed a key motivation to the drafters of the Principles in undertaking their development. To be fair, the Siracusa Principles were aimed at narrowly addressing the permissible scope of measures limiting or derogating from human rights obligations under the ICCPR. They also were intended to be of application to a wide range of emergencies, not public health emergencies specifically. To that purpose, they have stood the test of time. However, this notwithstanding, the very brief treatment of public health emergencies in Siracusa (paragraph 25) simply does not provide sufficient guidance to States on how to deal with a range of issues emerging as critical during the COVID-19 pandemic, including, as examples: health system preparedness pandemic prevention; widescale responses such as lockdowns and quarantines; application of new technologies including for surveillance purposes; social safety nets and provision for the social determinants of health; and effective regulation of private actor involvement in emergency contexts.
Therefore, and building on the Siracusa Principles, the PHE Principles, overall, can be seen as an effort to “harmonize” global health law and international human rights law, drawing, as they do, from both fields.
Global Solidarity and Private Actor Involvement in PHE
Given the catastrophic failure of States to effectively coordinate global responses to the COVID-19 pandemic, clarifying global solidarity and international cooperation standards were at the center of the drafters’ discussions during the development of the Principles.
The duty of states to realize human rights through international cooperation and assistance is a clearly articulated legal obligation in international law. The Principles affirm States’ obligations to cooperate towards measures that prepare for, prevent and respond to public health emergencies. They therefore reiterate that all human rights must realized through “international cooperation” having regard to the varied “capacities, resources and influence” of different States. In addition, the Principles also include “international solidarity” as one of eight “overarching principles and obligations” in the context of public health emergencies. The Principles embody throughout the legal imperatives of international cooperation and solidarity – which is described as an “emerging principle of international law.”
Several contributions to the symposium unpack the PHE Principles’ treatment of solidarity further.
Gostin and Friedman bemoan the “woefully inadequate international cooperation and assistance” during COVID-19 and call for improved accountability for States “individually and collectively” in the future.
Ahmed et al. emphasize solidarity both at the national level (within States) and the international level (between States), and note that the Principles sharply express States’ duties to “prevent non-State actors from frustrating solidarity efforts.” The authors warn, however, that, if global health reform is going to produce sorely needed equity in health access that solidarity must not be “relegated to platitudes and lamentations.” They therefore endorse including it in the “legal thinking that guides our next response.”
Gholami highlights the fact that the pandemic illustrated that “viruses know no borders” and asserts that “it is in our collective interest to ensure equitable access to public goods, facilities, services, and technologies for all”. She notes that, in the context of Europe, that despite calls from the Parliamentary Assembly of the Council of Europe, “rich countries stockpiled vaccines and undermined multilateral efforts to ensure global equitable distribution through the COVAX mechanism by outbidding poorer countries and entering into bilateral agreements with vaccine developers.”
Arenas Catalan notes that a key test for the Principles will be their “ability to influence the measures taken, including by States, in preparing for, preventing, and responding to future public health emergencies with increased solidarity.” Such a solidaristic approach would, in his view, prevent States from “remaining free to privatize knowledge or infrastructure critical to the satisfaction of human needs,” with significant implications for the role of private actors in health care.
Ho commends the Principles’ explication of the duties of non-State actors, which he notes are critical in the context of much-needed interaction and cooperation between States and social media companies in the wake of public health emergencies.
De Falco, like Arenas Catalan, expresses skepticism about the role of private actors in health care, both within the public health emergency context, and also more generally, by drawing on examples from Nigeria, Kenya, and Italy. She emphasizes the importance of Principle 5, pertaining to “human rights duties relating to non-State actors,” thereby focusing more on State regulation of private actors than State coordination and cooperation with private actors. Emphasizing that the Principles indicate that non-State actors must “respect rights,” “contribute to their fulfilment,” and “refrain from impeding international solidarity efforts,” De Falco stresses that “corporations exercise ever-growing influence in both global health and domestic health systems.” She concludes that “strong, well-coordinated and resilient public health care services play a vital role in preventing and responding to public health crises.”
Country-Specific Applications
Though the COVID-19 pandemic exposed in stark terms the interconnectedness of health between countries and across the world, it also served to underline the glaring inequities that resulted in particular countries and/or particular groups of marginalized persons within countries bearing a disproportionate burden of the pandemic’s worst effects. Several authors made contributions to the symposium that were country specific, honing in on such impacts and efforts to secure accountability domestically.
The Jurisprudence of COVID-19
Substantial databases of jurisprudence relating to COVID-19 show that judicial decisions continued to proliferate on a range of issues and deep into 2023. Blog contributions from Malawi, South Africa, and Colombia are illustrative of the important role of courts in ensuring accountability in the context of public health emergencies, as is emphasized by the PHE Principles (Principle 8).
Judge Zione Ntaba’s contribution highlights how courts in Malawi decided cases relating to the Government’s responses to the COVID-19 pandemic, including, in particular, the provision of social security measures in parallel with lockdown measures, and the policy proposals relating to mandatory COVID-19 vaccinations. Judge Ntaba indicates that “the Principles would have greatly assisted the Malawian judiciary if they had been available at the onset of the pandemic.” For her, “they are an authoritative text, representing an international, consensus-based expert opinion on the most pressing human rights issues in public health emergencies.”
Judge Ntaba draws attention to the consistency with and relevance to the Malawian Court’s judgments on lockdowns of Principle 12(2)(f) pertaining to the obligation that States provide for “social protection measures to mitigate and compensate for the impact of public health emergencies on livelihoods [and] welfare…” As alluded to above, the need to include a sufficient focus on the protection of economic and social rights – lacking entirely in the Siracusa Principles – was one of the key reasons for the development of the PHE Principles, which address all human rights as “universal, indivisible, interdependent, interrelated and mutually reinforcing” (Principle 1).
Soekoe and Davis, both South African lawyers involved in litigation relating to transparency in vaccine contracts between the Government and pharmaceutical companies, detail the successful vindication of the right to access to information, entrenched in the South African Constitution and legislation. The South African Court ultimately ordered disclosure of such contracts despite the government’s reliance on confidentiality clauses.
In analyzing the impact of the judgment, Soekoe and Davis argue that the PHE Principles would have “bolstered the case for the importance of transparency during a global emergency” and would improve the prospects of success in future similar cases in South Africa and elsewhere. First, they note that “global solidarity efforts,” key in vaccine access advocacy, could draw on the Principles as a strong source. Second, they note that countries with less comprehensive information rights/laws could draw on the Principles to bring similar cases to court. Finally, they remind us that had governments simply proactively disclosed contracts, the need for such litigation would have been obviated and this could have helped to save lives.
Writing on a decision of the Colombian Constitutional Court, Silvia Serrano describes the Court’s approach to protocols adopted in health care institutions relating to triage in the face of scarce health resources in the face of the COVID-19 pandemic. As Serrano notes, many countries did not have regulations in place, and the result was often “the adoption of fragmented and discriminatory triage protocols” resulting in age and disability discrimination.
The Court indicated that the Colombian government had failed in its obligation to adopt a “binding and uniform regulation providing the criteria for providers to use in determining who (and who not) to treat in the face of scarce resources.” Crucially, Serrano notes that the Court also clarifies the State’s obligation “to anticipate future health emergencies and scenarios of scarcity” to “exhaust any and all possible means before resorting to rationing.” In order to ensure rights protection in situations where triage may become necessary, the Court also highlights the need for public participation in development of such regulations, including the involvement of those most at risk, such as persons with disabilities and older persons. It also affirms and the necessity of “effective mechanisms to ensure transparency and accountability in triage decisions in the context of public health emergencies.”
Serrano acknowledges that the Principles’ articulation of transparency, accountability, and non-discrimination as overarching principles (Principles 6, 8 and 4 respectively) could have assisted the Court in coming to its decision in this matter and bolstered its reasoning.
Health Systems
By design, the PHE Principles depart from the Siracusa Principles which address emergencies as events that require human rights consideration only on the level of response measures. The PHE Principles therefore focus throughout also on prevention and preparedness and emphatically affirm States’ obligations to “strengthen and develop sustainable health systems” (Principle 9) as arguably the most critical means of preventing and/or mitigating the impact of future pandemics.
Were and Maleche decry the failure of the Kenyan government to “take a human rights-based approach to in response to COVID-19,” arguing that the “Kenyan government simply did not know how to do so.” Instead, the government applied archaic and outdated laws that were not fit for purpose, with dire consequences for human rights. In addition, Parliament, unable to enact new laws at the beginning of the pandemic, “abdicated” its duties to the executive. Noting that this was a common problem across the world, Were and Maleche welcome the Principles. They express the hope that they will “bridge a much-needed gap in our understanding of public health emergencies.”
They commend their “broad temporal scope” – focusing on prevention, preparation, response, and recovery – and their emphasis on the improvement of health care, economic and social systems that are human rights-compliant. Aiming to address the problem succinctly identified by Were and Maleche, the Principles emphasize the State “obligation to ensure legal and policy preparedness for public health emergencies” (Principle 13). They also affirm that States must produce a “coordinated, effective and human rights compliant legal framework which operationalizes” their human rights obligation in respect of public health emergencies.
Similarly, Da Silva Bhatia et al. focus on the generally poor state of the United States health care system, which they describe as “fragmented, largely profit-based, and predominantly disease-focused rather than prevention-focused.” While COVID-19 resulted directly in the deaths of over 1.1 million people in the U.S., with 1.7 million “excess” deaths by the end of 2022, the pandemic impacted “Black, Latine, people of other minority racial or ethnic backgrounds, people with disabilities, and other socially vulnerable people” disproportionately. Advocating for an overhauling of the existing approach to health care in the United States, the authors argue that the Principles “help draw a line in the sand between how the U.S. functions currently and what health care could look like if people were prioritized over profit, if transparency and accountability were strengthened, and if fundamental human rights were upheld through the enforcement of minimum essential standards for well-being.” They correctly emphasize that the Principles call for a human rights-based approach to both health care in general and in public health emergencies in particular (Principle 13).
The problems are obviously not particular to Kenya and the United States. In her contribution, Gholami for instance, notes that “the pandemic hit the world largely unprepared and laid bare the fault lines in our national health systems” and welcomes the Principles affirmation of the “obligation of states to strengthen and develop sustainable health systems” ahead of future public health emergencies.
Gaps in the Principles: Room for Future Evolution
Several authors provide constructive criticism of the PHE Principles in their analysis, creating important incentive for the drafters of the Principles to consider future normative development and for external stakeholders to conduct further research. This is fitting given the Principles’ provision that they “provide a foundation upon which future human rights norms in public health emergency prevention, preparedness, response and recovery emerge and evolve.”
Ho, for example, focuses on the Principles’ failure to cover “infodemics,” a phenomenon described by the WHO as the availability of “too much information including false or misleading information in digital and physical environments during a disease outbreak.” He notes that infodemics, such as the one that accompanied the COVID-19 pandemic, warn of the need to include “infodemic management” as an “integral part of public health emergency prevention, preparedness, response, and recovery.” While criticizing the Principles for failing to address infodemics directly, he concedes that they contain provisions that will form the basis for the “forging [of] a common and more holistic understanding of infodemic-related harm,” and applauds their emphasis on a “participatory approach” (Principle 7).
Varadan et al. focus their contribution on the Principles’ failure to include a “specific and detailed discussion on the rights obligations and principles owed to children during public health emergencies.” The principles, the authors argue, fail to identify measures States can take to “ensure children are actively listened to and engaged with in the prevention of, preparedness for, and response to public health emergencies.”
Nonetheless, the authors consider the Principles to be “an important first step towards clarifying the scope of States’ rights obligations during public health emergencies” and stress that “it is not unreasonable that their scope should be framed broadly without a detailed discussion on the rights of specific vulnerable populations.” They argue that children should not be cast as merely “hidden” or “silent” victims of pandemics and emphasize the need for “a deeper elaboration on the content of the Principles will be needed to ensure compliance with the CRC” as the product of a “more deliberate and detailed discussion” which “actively engages and empowers children.”
Finally, Catalan expresses reservation about the Principles’ failure – in keeping with General Comment 14 of the CESCR Committee – to more strongly acknowledge what he argues is the “instrinsic[] assocati[on]” between private provision of health services and inequitable health provision. Nevertheless, Catalan describes Principle 28 (which imposes an obligation over intergovernmental organizations to facilitate the sharing of information and technology) as “the greatest promise yet in terms of setting a concrete and effectual solidarity-based legal obligation regarding public health emergency preparedness.”
Looking Forward: What’s next for the PHE Principles
As with any legal drafting processes, multiple versions of the Principles were developed, debated, amended, and refined during the nearly three-year process of their drafting.
In our view, the Principles are better off for such robust engagements, but, inevitably, this resulted in the repeated refinement and modification of the content of the Principles to achieve full consensus of the experts who, after all, were attempting to draft a consensus position of the requirements of international law and standards – not merely state their own opinions.
As individuals who contributed to the drafting process, we thank the authors of the blogs in this symposium for their thorough engagement, and invite more commentary about the Principles in the future.
As is already evident, the COVID-19 pandemic, much like pandemics of the past, have resulted in significant social change. According to historian of medicine Frank M. Snowden this is because “epidemics are a category of disease that seem to hold up the mirror to human beings as to who we really are.”
For us, one of our major points of learning from the COVID-19 pandemic is that international law’s prescriptions with respect to public health emergency preparedness, prevention, response, and recovery were insufficiently clear to State and non-State actors alike.
We hope that, alongside important developments such as the elaboration of a Pandemic Treaty and the review of the International Health Regulations, the PHE Principles will make a small contribution to legal change that inevitably runs alongside the social change stemming from COVID-19. If that legal change is grounded in existing human rights law and standards, we retain some hope that the next pandemic will not be as catastrophic as COVID-19.
Timothy Fish Hodgson is a legal adviser on economic, social and cultural rights at the International Commission of Jurists (Africa).
Roojin Habibi is an Assistant Professor at the University of Ottawa’s Faculty of Law (Common Law Section), a Senior Visiting Fellow of the United Nations University’s International Institute for Global Health, and a Research Fellow of the Global Strategy Lab based at York University and the University of Ottawa.
Alicia Ely Yamin is a Lecturer on Law and the Senior Fellow on Global Health and Rights at the Petrie-Flom Center for Health Law Policy, Biotechnology and Bioethics at Harvard Law School; and a Senior Advisor on Human Rights and Health Policy at Partners In Health.
