'On the brink of a catastrophic moral failure' - not the time to abandon international law
by David Patterson
source: by focusonmore.com via ccsearch
In January 2021 the Director-General of the World Health Organization, Dr Tedros Adhanom Ghebreyesus, delivered a blunt message at the opening of the 148th session of the WHO Executive Board: ‘The world is on the brink of a catastrophic moral failure – and the price of this failure will be paid with the lives and livelihoods of the world’s poorest countries.’ Dr Tedros was referring to the rich countries’ decision to prioritize COVID-19 vaccine access for their own younger, healthier adults over health workers and older people in poorer countries. He further stated, ‘Vaccine equity is not just a moral imperative, it is a strategic and economic imperative.’ These points are well-taken – a world divided between the COVID-19 vaccine ‘haves and have-nots’ will likely be less safe and less economically secure and productive.
However, something was strangely missing from Dr Tedros’ appeal. There was no reference at all to legal obligations of international cooperation. Yet cooperation is at the heart of our international legal order, including in global health - anchored in the 1945 Charter of the United Nations. There, Member States pledged to ‘take joint and separate action in cooperation with the Organization’ (art. 56) to achieve, inter alia, ‘…solutions of international economic, social, health, and related problems…’ (art. 55). The 1948 Universal Declaration of Human Rights – arguably today the most widely accepted global moral compass – also references ‘international cooperation’ in the attainment of economic, social and cultural rights (art. 22).
Every WHO Member State has ratified one or more human rights treaties which affirm the right to health. The International Covenant on Economic, Social and Cultural Rights notes that a State Party is legally bound to ‘…take steps, individually and through international assistance and cooperation, especially economic and technical, to the maximum of its available resources…’ (art. 2.1) to realize the rights in the Covenant, including the right to health (art. 12). The right to health is also affirmed in the Preamble of the WHO Constitution.
With rights, come obligations. In 2000, the United Nations Committee on Economic, Social and Cultural Rights explored these obligations in General Comment 14. The Committee noted that, ‘Depending on the availability of resources, States should facilitate access to essential health facilities, goods and services in other countries, wherever possible and provide the necessary aid when required’ (para. 39). The 2011 Maastricht Principles on Extraterritorial Obligations of States in the Area of Economic, Social and Cultural Rights also address the issue and note that States ‘…that are in a position to do so, must provide international assistance to contribute to the fulfilment of economic, social and cultural rights…’ (Principle 33.)
In their 2012 commentary on the Maastricht Principles, De Schutter et al note regarding Principle 33, ‘… international assistance is not limited to economic and technical assistance, and may comprise other measures...’, which can include facilitating access to vaccines. The WHO’s International Health Regulations (2005) (IHR), binding on all Member States, address the issue of international assistance in Article 44, which includes a reference to the provision of technical cooperation and logistical support and the mobilization of financial resources. In the 2020 Stellenbosch Consensus on the International Legal Obligation to Collaborate and Assist in Addressing Pandemics, Cinà et al aim to clarify Article 44. The consensus statement notes that Annex 1 of the IHR, which lists core capacity requirements for surveillance and response, is a priority area for collaboration. IHR Annex 1 includes ‘…the capacity to determine rapidly the control measures required to prevent domestic and international spread [of disease] ...’ IHR Annex 2 notes ‘…insufficient… vaccine… to cover estimated needs…’ as an example of when international assistance may be required.
The failure of the WHO chief to reference the centrality of international legal frameworks in the response to the global COVID-19 vaccine crisis is puzzling. Dr Tedros has arguably done more than other Directors-General in recent history to affirm the right to health under international law, including through a statement on Human Rights Day in 2017, an article in The Lancet in 2018 and at the launch of a major report on global health and the law in 2019 (his remarks in this video could not be clearer or more compelling).
Some Member States may not wish to be reminded of their legal obligations regarding international assistance. But surely the call for vaccine justice in the face of the COVID-19 pandemic is exactly the time to affirm the applicable international law. The legal framework we have today was largely forged in the ashes of wars in first half of the 20th century, culminating in the Holocaust. Now is not the time to shrink from affirming that States have legal, as well as moral, obligations to facilitate access to life-saving vaccines. This includes waiving impediments in intellectual property rules and giving up prior legal claims on vaccine stocks to countries in greater need, as Dr Tedros has urged. A failure to do so may also undermine international law in future health crises. However, before criticizing the public health community, international lawyers should ask if we have done enough to deliver this message.
David Patterson LLM, MSc has 25 years' experience in global health, law and development. He is currently a PhD Candidate in the Faculty of Law at the University of Groningen, Netherlands.