World Health Organization (WHO) member countries negotiating a new international agreement to address pandemics need to ensure that the agreement reflects their domestic and international obligations to respect, protect, and fulfill all human rights, Human Rights Watch said today. Negotiators will meet in Geneva for two weeks starting September 9, 2024.

The draft WHO Pandemic Agreement, which negotiators hope to finalize before the next World Health Assembly in May 2025, proposes to fundamentally alter the international system of pandemic prevention, preparedness, and response. After two years of negotiations, the draft still risks repeating the profound failures of the Covid-19 pandemic by failing to align with international human rights law standards and principles.

"The WHO Pandemic Agreement is a rare opportunity to establish guard rails to prevent a Covid-19-like human rights catastrophe from happening again," said Matt McConnell, economic justice and rights researcher at Human Rights Watch. "But by failing to clearly require governments to align their responses with their human rights obligations, it ignores Covid's lessons."

Four-and-a-half years after the WHO declared Covid-19 a pandemic, more than 7 million deaths have been reported. The harm caused by both the virus and governments' responses will be felt for decades to come.

During the pandemic, Governments weaponized public health responses to target activists and opponents and violate the rights of asylum seekers. Wealthy governments hoarded healthcare resources and privileged private profit over people's lives by blocking efforts to waive intellectual property rules. Pharmaceutical companies refused to share their technology widely, limiting global production of lifesaving health products, especially in low- and middle-income countries.

Many governments closed schools without adequate alternatives, which affected children unequally and led to widespread, devastating learning losses. Others rushed to endorse online learning platforms without regard to how intrusive they were or how they surveilled children. Governments frequently failed to ensure the rights of older people and people with disabilities. They also failed to address the deep impact of the pandemic on women and girls, and a global surge in violence against women.

Despite the pandemic, many governments still failed to meet vital public healthcare spending benchmarks, leaving many people unable to access needed health care. While some governments like the United States made major investments in programs to keep people housed and in social security to protect people's livelihoods, resulting domestic reductions in inequality proved as temporary as these programs.

Recognizing many of these failures, the WHO's World Health Assembly in December 2021 established an intergovernmental negotiating body to draft and negotiate an international instrument to strengthen pandemic prevention, preparedness and response. This negotiating body consists of representatives from all 194 WHO member countries, but the process has been guided by representatives from six countries, one from each of the six WHO regions.

Tasked with completing these negotiations by June 2024, the group's process was widely criticized by civil society organizations as inadequately transparent, participatory, or consultative. Hampered by the short timeline, immense complexity, diplomatic tension, and substantive disagreement, negotiators requested a one-year extension for the process, which they received. But negotiators may now aim to conclude their work as soon as December.

At the Geneva meeting, the negotiating body will need to address major substantive and procedural concerns remaining about how the negotiations are being conducted and what is and is not reflected in the draft agreement under discussion. This includes financing, the transfer of technologies, the equitable distribution of vaccines, therapeutics, and diagnostics, and how the agreement will ensure its efficacy.

When the body previously gathered in November 2023, Human Rights Watch issued a joint statement with Amnesty International, the Global Initiative for Economic, Social and Cultural Rights, and the International Commission of Jurists calling on negotiators to enshrine core human rights standards protected under international law in the agreement.

The organizations highlighted that international human rights law provides a framework to guide the resolution of outstanding concerns in a way that complies with governments' existing human rights obligations. As member countries meet in Geneva, they should ensure that human rights guides negotiations by:

Reflecting Core Human Rights Principles

Reflecting core principles of human rights law essential to an effective and equitable pandemic response: Reinstate (e.g., in Article 3) fundamental principles of human rights law that appear to have been removed from the current draft, including non-discrimination, gender equality, and the need to protect people in vulnerable situations. Where human rights are currently mentioned in the agreement (e.g., in Article 3.2), they should encompass the full scope of governments' obligations to respect, protect, and fulfill human rights, both domestically and extraterritorially.

Expanding Access to Health Products

Expanding equitable and affordable access to pandemic-related health products: Where the agreement discusses access to testing, vaccines, and therapeutics during health emergencies (e.g., in Articles 10, 11, and 12), it should reflect governments' obligations to ensure that such access is also affordable. This should be accomplished by facilitating technology transfers consistent with governments' international obligations to provide international assistance and cooperation, and to ensure that everyone can access the applications of scientific progress. It should also prohibit retaliation against governments that take advantage of "flexibilities" under the World Trade Organization (WTO) Agreement on Trade-Related Aspects of Intellectual Property Rights (TRIPS Agreement).

Reaffirming Governments' Obligations

Reaffirming governments' obligations to ensure any restrictions on human rights in the context of pandemic prevention, preparedness, and response are consistent with international human rights law: Reaffirm (e.g., in Article 3 and throughout Chapter II) governments' obligations to demonstrate that any measures that have the effect of restricting the realization of human rights are evidence-based, legally grounded, nondiscriminatory, and necessary and proportionate to a legitimate purpose, such as the protection of others' rights. It should also reiterate that, whenever such restrictions undermine the enjoyment of economic, social and cultural rights, governments should provide appropriate relief.

Improving Implementation

Improving governments' implementation: Include (e.g., in Chapter III) a system of monitoring and periodic review that draws on the best practices of other international instruments to ensure its rights-aligned implementation, including continually expanding affordable access to testing, treatments, and vaccines during health emergencies. Additionally, the agreement should reaffirm (e.g., in Article 3) that domestic laws may not be used as an excuse for falling short of international standards, and specify more clearly the bases upon which a party may make reservations (e.g., in Article 27).

Negotiators have not addressed these and similar recommendations calling for a rights-based agreement, including those raised by the Office of the United Nations High Commissioner for Human Rights and major coalitions of civil society groups and experts, such as the People's Medicine Alliance, Civil Society Alliance, Global Health Law Consortium, and Geneva Global Health Hub.

The negotiators' unwillingness to address these issues is more than just a missed opportunity, Human Rights Watch said. Should the agreement proceed without addressing these concerns, it may fail to prevent many of the disastrous domestic and international policies that motivated its creation. It would muddle international human rights law, international trade law, and global health law, and possibly reinforce the failed idea that governments should rely on voluntary efforts by private companies to respond to a global health crisis.

"Negotiators meeting in Geneva still have the chance to draft an agreement to ensure that governments and companies respect, protect, and fulfill all human rights when the next pandemic comes around," McConnell said. "But if governments rush to enact something that falls short of their existing human rights obligations, there is a real danger that the agreement could instead serve as a tool to justify rights violations."