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A New Pandemic Agreement Cannot Succeed If It Ignores Human Rights

By Mike Frick and Gisa Dang

Background

Two years into the COVID-19 pandemic, governments embarked on a journey to create a Pandemic Agreement, negotiated among member states of the World Health Organization (WHO), that would establish binding rules on how countries respond to future pandemics. The Pandemic Agreement grew out of the abject policy failures of COVID-19. Despite earlier warnings posed by SARS, Zika, Ebola, and other infectious diseases, COVID-19 caught the world by surprise. In the resulting chaos and confusion, governments resorted to tools — travel bans, export restrictions on essential health commodities, Big Pharma monopoly protections, and vaccine hoarding — that favored national interests over global solidarity, with devastating consequences for human life. By defaulting to protectionism, governments missed their chance to meet the moment with actions grounded in science and public health.

The decision to create a new global health treaty was historic. South African diplomat Precious Matsoso, one of the co- chairs of the International Negotiating Body (INB), the group at WHO negotiating the Pandemic Agreement, described the motivation and stakes this way: “There is clear recognition from governments that the goal of a Pandemic Agreement is to prepare the world for preventing and responding to future pandemics, built on consensus, solidarity and equity… We know that if we fail, we will be failing humanity, including all those who suffered from COVID-19, and those at risk of future pandemics.”1 At the start, governments seemed ready to heed hard won lessons and create a new international instrument to prevent all future pandemics. If it enters into force, the Pandemic Agreement will become only the second health accord negotiated at the WHO after the 2003 Framework Convention on Tobacco Control, making this a rare opportunity to put forward a new framework for global health cooperation.

Yet after two years of fractious negotiations, governments failed to reach consensus and pass the Pandemic Agreement. In May 2024, World Health Assembly delegates missed their self-imposed deadline to finalize the text of the agreement; negotiations are now continuing until the end of the year — and possibly into 2025. Passage of the agreement foundered on deep disagreements, including on how to handle pathogen access and benefit sharing (referred to as PABS), One Health, technology transfer, and safeguards on the transparency and use of publicly funded research. Each of these topics is highly technical in its own right but also foundational to the commitments to equity, solidarity, and science that the Pandemic Agreement was meant to affirm.

The INB is shepherding the further drafting of the future agreement and has just finished a round of negotiations in September with another planned for fall 2024.2

It has a difficult task ahead and must conclude its work no later than the 2025 World Health Assembly. Among the questions that remain are: How can states determine common ground now when they haven’t found it so far? And how can states set up the Pandemic Agreement to secure scientific progress for the future of all humankind? The answer, we believe, lies in existing international human rights treaties.

Health, Human Rights, and the Pandemic Agreement

One obvious way to reach consensus is to start from points of agreement and build from precedent. International human rights law offers a natural and obvious starting point. All nations have ratified at least one legally binding international human rights treaty, and the Universal Declaration of Human Rights is so widely recognized it is considered customary international law. Even the constitution of the WHO — the legal framework under which the Pandemic Agreement is being negotiated — recognizes the right to health as the organization’s second founding principle.3 Pandemics implicate human rights as much as they threaten health. Years of analyses of the right to health have clarified that health cannot only be realized through health interventions. In fact, the right to health depends on the underlying determinants of health — that is, the social, economic, physical environment of a person as well as individual characteristics and behaviors.4 Much like health, these determinants themselves are also dependent on the degree of realization of human rights.

Despite this deep connection between health and human rights, the current text of the Pandemic Agreement overlooks rights almost entirely — undermining the goals of the treaty itself. Reaffirming human rights as the basis for new rulemaking in global health would make for an agreement that’s stronger, more enduring, and more adaptable to future threats.

Instead, governments have allowed the visceral politics of COVID-19 to steer the negotiations. Despite sustained pushback, the negotiations took place behind closed doors;

civil society organizations were unable to participate and, in many circumstances, were even disallowed from observing the deliberations. This lack of participation — itself a human rights principle — was starkly illustrated by scenes of advocates waiting for hours in the WHO cafeteria to catch negotiators during breaks to learn about developments and to advocate for their priorities. In our view, this procedural obstruction is a symptom of the fact that human rights are no longer the dominant frame for analyzing power in global health. In place of human rights, negotiators and other stakeholders reached for terms like equity, decolonization, and health security to stake out positions. However, these keywords ring hollow in a scenario where the process itself is not invested in modeling equity or dismantling power dynamics. Some Global North states, in particular, are following negotiating lines reminiscent of the narrow self-interests that drove early COVID-19 vaccine nationalism.

The Right to Health

With the future of the Pandemic Agreement still undecided, states have a last chance to reset deliberations by refocusing on human rights obligations. The right to health has been recognized in multiple international treaties, entitling everyone to “a system of health protection which provides equality of opportunity for people to enjoy the highest attainable level of health.”5 It seems reasonable to expect that the right to health would lay the foundation for any international agreement aiming to govern future pandemics. But in the most recent draft of the Pandemic Agreement, the right to health is mentioned twice — in the preamble and the introduction — and general references to respect for international human rights law and the human rights of everyone appear as well.6 The draft text, however, does not build from nor reflect this commitment. Indeed, it further departs from a human rights framework by deleting references to nondiscrimination and gender equality that were included in previous drafts.

One other human right would help states break through impasse and come out the other side with an agreement that sets the stage for a better, fairer response to the next pandemic: the right to science. Or in full, the right of everyone to participate in and to enjoy the benefits of scientific progress and its applications (ICESCR Article 15).

Best Available Science

The right to science is a close companion to the right to health, not just by the nature of the interdependence and indivisibility of human rights per se.7 The recognition of the right to science as integral not only to COVID-198 but also to tuberculosis, HIV, mpox, and other current pandemics, should make it a cornerstone of the Pandemic Agreement. While civil society submissions to the INB have proposed specific placements for the right to science and derivative language,9 it is not named in the preamble nor the body of the current draft.

This is concerning: if it had not been obvious prior to April 2020, the rights to health and to science are nowhere near fulfillment. Access to medicines activists warned early that COVID-19 was not going to be the global equalizer it was named in the beginning but that instead existing inequalities would deepen according to known patterns. Perhaps the starkest examples of this were the devastating inequities in COVID-19 vaccine access that characterized 2021 and 2022. “Vaccine apartheid” showed that the benefits of science do not simply accrue to all people eventually. As philosopher of science Michela Massimi put it, “We lack transnational institutions that can regulate and govern in a systematic way the use, distribution, and consumption of scientific advancements as transnational public goods.”10

Ideally, the Pandemic Agreement would meet this need by creating the transnational rules and mechanisms for replacing the defining failures of COVID-19 with a system capable of disseminating the benefits — whether tangible things like vaccines or intangible things like knowledge — equitably from the outset. Instead, the global answer to COVID-19 vaccination was COVAX, a donation-based model that clearly failed to fulfill its goal.11 One study concluded that while an estimated 41% of excess mortality was prevented in countries that had access to COVID-19 vaccination, “an additional 45% of deaths could have been averted” with a 20% COVAX coverage target and “an additional 111% of deaths could have been averted had the 40% target set by WHO been met by each country by the end of 2021.”12 For the Pandemic Agreement to change the status quo of pandemic response, its provisions must move beyond “scientific nationalism” and “philanthropic solidarity.”13

Current language in the agreement focuses instead on the same notions of voluntariness and mutually agreed terms, which signal no great departure from the COVAX model.

Many key issues in the Pandemic Agreement are linked to the distribution of science and its benefits. The disagreements around PABS, One Health, and technology transfer all boil down to the fair distribution of scientific resources. Countries that share genetic sequence data and other information on pathogens of concern should have access to the medical tools (vaccines, drugs) whose production relies on such information. More countries should have the ability to manufacture vaccines locally — which would require transferring technology from North-to-South and managing intellectual property in ways that favor sharing knowledge over monopolizing it. People who contribute to research through either taxes or direct participation in clinical trials deserve to know how much their governments pay to purchase vaccines and other health tools that result from publicly supported research.

The right to science provides a framework for addressing this underlying issue of who benefits from science. Where the pandemic reinforced existing disparities, a new Pandemic Agreement should seek to dismantle them. Rich countries, Big Pharma, and nations with established manufacturing footprints often were in a position of deciding when other countries could access lifesaving tools. This is a trickle-down vision of how science moves: from inventors and creators to everyone else. The right to science offers a different vision of science as a fundamental entitlement shared by everyone by virtue of being human.

Commitments not Evasions

At the most basic level, treaties aim to articulate the roles and responsibilities of responsible parties in specific situations. In this case, the things governments should do to prevent, prepare for, and respond to pandemics. A successful Pandemic Agreement would have facilitated a subtle but important shift from operating by intentions and goals (e.g., states should help each other access vaccines) to acting in accordance with duties and obligations (e.g., states must set aside a certain percentage of the vaccines they buy to give to other countries in need on fair and favorable terms). This shift from imprecise aspirations toward well-defined obligations would have been more successful with stronger references to human rights given the clarity with which human rights law defines states as duty bearers charged with respecting, protecting, and fulfilling rights.

Instead, the Pandemic Agreement text is riddled with language that tries to move in reverse by weakening new obligations as soon as they are expressed. Linguistic caveats, carve outs, and exceptions — “taking in account,” “as appropriate,” “in accordance with national laws,” “subject to the availability of resources” — puncture holes in most provisions throughout the draft. Examples are too numerous to enumerate. One provision in Article 14, which addresses regulatory systems, is almost entirely written in this evasive style (highlighting added, the brackets indicate text edits proposed by different member states that were still being decided at the moment of writing):

14.4: “Each party shall endeavor to, subject to applicable national and/or domestic law, adopt, where needed, regulatory reliance mechanisms in its national and, where appropriate, regional regulatory frameworks [for use during pandemic emergencies] [, subject to the availability of regulatory dossiers], [for pandemic-related health products] taking into account relevant guidelines.”

The proliferation of qualifying language represents an effort to reach consensus on text without really intending to change behavior. Behind such equivocating language, negotiators remain at an impasse. For example, the UK has opposed vaccine sharing requirements, whereas the Africa negotiating block is asking for a minimum of 20% of vaccines to be donated in real time to the WHO for distribution.14 Familiar factions in global health — the Global North protecting Big Pharma versus Global South advocating for technology sharing and equitable access — have reestablished themselves in the one endeavor that was supposed to break through this old dynamic.

Progressive Realization

Additional human rights references could have a positive discursive effect on the agreement text. Instead of hiding behind “as appropriate,” “where relevant,” and other similar phrases, states could fall back on the precedent of human rights language to express certain ideas more directly. This would be especially helpful in parts of the Pandemic Agreement that allow states an out by making certain actions “subject to the availability of resources.”

Major Milestones in the Development of the Right to Science

Pandemic Agreement negotiators are right to acknowledge that countries are at different levels of development and therefore commitments should “[recognize] different levels of capacities and capabilities” (para. 5). But limited resources are not an excuse to not act. Human rights law acknowledges resource limitations among states in a way that preserves accountability by not letting governments off the hook entirely. This concept is known as “progressive realization.” In situations where resource constraints limit the ability of states to fully guarantee economic, social, and cultural rights, they must show they are using the resources they do have to make continual forward progress. At the same time, this means that retrogressive action or backward progress on human rights is not justifiable. States digging their heels into positions that stand counter to human rights, therefore, does not fulfill their obligations under progressive realization.

Moreover, human rights law recognizes that some elements are so essential for the realization of certain rights that their fulfillment cannot be deferred by appeal to resource limitations; these are so-called minimum core obligations. Nearly all the core obligations under the right to science apply to pandemics. Among them is an obligation to “Ensure access to those applications of scientific progress that are critical to the enjoyment of the right to health and other economic, social, and cultural rights.” The Pandemic Agreement would be stronger if it borrowed from the idea of progressive realization to define a set of minimum core obligations that all states must honor.

Conclusion

States need to overcome their current reservations against Pandemic Agreement clauses that will require them to act in a way consistent with human rights — the right to health, the right to science, the right to participation, among others — once the next pandemic strikes. In fact, the current resurgence of mpox is already playing out in a similar pattern as COVID-19.

Global North states that host vaccine research and development as well as manufacturing have once again taken up their role as shepherds of who gets access to mpox vaccines, returning the world to the vaccine inequity that the Pandemic Agreement was meant to end.15

We are seeing in real time the consequences of failing to pass a human rights– based Pandemic Agreement: the world remains stuck in a cycle of protectionism without international cooperation to overcome global health challenges. Actual change will only be possible once governments recommit themselves to the human rights obligations they once agreed upon rather than ignoring them in a new treaty. The latest draft published during INB11 in September 2024 not only deleted references to central human rights tenets of nondiscrimination and gender equality. It also relegates the important decisions on PABS and One Health to a later, not yet specified, date. Rather than embracing human rights as a basis for negotiations, thereby reaffirming prior commitments by states, the INB process appears to be weakening meaningful progress toward true pandemic prevention, preparedness, and response. Human rights must claim their rightful place in the Pandemic Agreement for it to live up to its aspirations to bring equity and accountability to pandemics old and new, to become a legal framework able to protect humanity without discrimination against the many global health challenges yet to come.

Endnotes

  1. World Health Organization. WHO Member States agree to resume negotiations aimed at finalizing the world’s first pandemic agreement. Geneva: World Health Organization; https://www.who.int/news/item/28-03-2024-who- member-states-agree-to-resume-negotiations-aimed-at-finalizing-the-world-s- first-pandemic-agreement. [Cited 2024 August 28].
  2. World Health Organization. International Negotiating Body. https://inb.who. int/. [Cited 2 October 2024]. https://www.who.int/news/item/20-09-2024-governments-progress-on- negotiations-for-a-pandemic-agreement-to-boost-global-preparedness-for- future-emergencies.
  3. World Health Organization. Constitution of the World Health Organization, p.1. Geneva: World Health Organization; https://apps.who.int/gb/bd/PDF/ bd47/EN/constitution-en.pdf?ua=1. [Cited 2024 August 12].
  4. See for example, World Health Determinants of health. Geneva: World Health Organization; 2017. https://www.who.int/news-room/questions- and-answers/item/determinants-of-health. [Cited 2024 August 29].
  5. Ibid, para 8. Emphasis added by authors.
  6. World Health Organization. A77/10. Intergovernmental Negotiating Body to draft and negotiate a WHO convention, agreement or other international instrument on pandemic prevention, preparedness and response. Geneva: World Health Organization; 2024. https://www.keionline.org/wp-content/uploads/ who-pandemic-agreement-16Sep-17.30.pdf. [Cited 2024 September 30].
  7. Frick M, Dang G. The right to science: a practical tool for advancing global health equity and promoting the human rights of people with In: Porsdam H and Porsdam Mann S, editors. The right to science: then and now. Cambridge: Cambridge University Press; 2021. p. 246-267.
  8. University of Turin International Human Rights Legal Clinic. The right to science as a game-changer against pandemics: towards an international instrument against global health emergencies. https://www.clinichelegali.unito.it/do/documenti.pl/ShowFile?_id=rdom;field=file;key=9iW7S9et6pAO1ox4Lqu69um1jYENUnMmljIXL6UJA5TTsWrH1PBdlFLQFJTwMMjdrTedEXW6OkGQUQsWFsc;t=2823
  9. Pandemic Action INB9 opening meeting written intervention. https:// www.pandemicactionnetwork.org/news/pandemic-action-network-inb9- written-intervention/. [Cited 2024 September 30].
  10. Massimi M. Big Science, scientific cosmopolitanism, and the duty of justice. In: Charitos P and Arabatzis T, Big science in the 21st century. Bristol, UK: IOP Publishing; 2023.
  11. Final report: COVAX facility and AMC formative review and baseline study. 2023 March 15. https://www.gavi.org/sites/default/files/programmes- impact/our-impact/Final-Report_COVAX-Facility-and-COVAX-AMC-Formative- Review-and-Baseline-Study.pdf. [Cited 2024 September 30].
  12. Watson O, Barnsley G, Toor J, et Global impact of the first year of COVID-19 vaccination: a mathematical modelling study. Lancet Infect Dis. 2022;22(9):1293–1302. doi: 10.1016/S1473-3099(22)00320-6.
  13. Massimi Big science, scientific cosmopolitanism, and the duty of justice.
  14. McAdams D, Yamey Using game theory to advance the pandemic agreement.
    Think Global Health. 2024 August 15. https://www.thinkglobalhealth.org/ article/using-game-theory-advance-pandemic-agreement. [Cited 2024 October 6].
  15. Adetifa I, Pai M. Mpox outbreaks in Africa—we must avert another failure of globa solidarity. BMJ. 2024;386:q1803. doi: 10.1136/bmj.q1803.
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