Why We Need a Transformative Right-to-Health Pandemic Treaty Now

Originally posted in Bill of Health

by Martín Hevia and Ximena Benavides

Acknowledging what went wrong during the COVID-19 pandemic is crucial to any pandemic lawmaking efforts. Chief among these concerns should be the centrality of human rights to global health security.

Health systems that lack universality and inclusivity will always fall short on disease surveillance, detection, and response during health emergencies, at the risk of not reaching all populations. The risk of exclusion exceeds national borders. Regional and global health governance favor the ‘competition of a few’ over (formal) solidarity, which explains why some of the small number of international collaborative initiatives aiming to reach the poorest countries during the pandemic are falling short.

Nonetheless, human rights remain at the periphery of the global health security conversation and the pandemic treaty debate.

Following the call of dozens of world leaders for a new treaty or another legally binding instrument to strengthen pandemic preparedness and response, the World Health Assembly will convene a special session in November 2021 to consider a new binding agreement that could address key failings in the COVID-19 response, including the insufficient international cooperation to implement the International Health Regulations’ (2005) public health capacities. Such an initiative should also serve as the long-awaited international policy-making window to address our health systems’ deep structural problems.

How can a pandemic treaty positively transform our health systems? In this contribution, we outline four core strategies.

1. First and foremost, we ought to relocate the right to the highest attainable standard of health to the center of the post-COVID-19 global health architecture.

Even before the current pandemic, a group of civil society organizations, global health leaders, and academics advocated for a Framework Convention on Global Health (FCGH) that can strengthen our health systems and address the day-to-day indignities and inequities that national and global health systems exhibit. In fact, in 2016, Ban Ki-Moon, then UN General Secretary, called for action by “encourag[ing] the international community to consider and recognize the value of a comprehensive framework convention on global health.”

We must advance the right-to-health principles of equitable access, accountability, and participation through global and national programs of action with health equity incentives and action-oriented roadmaps that factor in the SDH. The goal is to fortify public trust that can ensure broad compliance with public-health measures, for example, to reduce vaccination hesitancy. This can be achieved, for instance, by including the appropriate mechanisms for the community to set priorities and participate in decision-making processes for public health policies. In turn, accountability would establish the duty of disclosure of contracts, budgets, and criteria for the allocation of health resources.

2. A pandemic instrument should contribute to health, financial, and human capacity through a national and international funding framework that can ensure sufficient and efficient spending and strategies to overcome implementation shortcomings.

3. Following the example of international, legally binding treaties such as the Paris Agreement, a pandemic instrument should set coordinated, concrete commitments, and impact assessments to help countries improve their health systems and adjust national policies that affect the health of their own populations and beyond borders, particularly of those most vulnerable and marginalized.

4. Lastly, this instrument should promote the right to health in the private sector by establishing standards that ensure that companies do not undermine the right to health nationally or abroad; that is, to enforce the UN Guiding Principles on Business and Human Rights with respect to the right to health.

Why do we need a treaty or another binding legal instrument to channel such transformations? To be clear, an international legally binding instrument is not indispensable in order for health stakeholders to collaborate and prepare for future pandemics. Nations can cooperate with each other and make key joint decisions as they have in the past to overcome global crises.

However, this has clearly not been the way most countries have conducted themselves with respect to procurement of vaccines, medical protective equipment, and COVID-19 tests, as well as with respect to sharing intellectual property on vaccine technology.

As the pandemic continues to reshape the politics and economies of many countries and challenges multilateralism, a more critical approach to health governance and speedy, scaled response from all political leaders is needed. In this context, it is clear an international lawmaking effort is justified.

Further, at a time when nationalist populism threatens global cooperation, international lawmaking efforts promise to reinforce the World Health Organization’s independent monitoring power and unify a broader and actively involved supportive constituency — including experienced organizations and advocacy groups who are trusted and have a track record of success in promoting health worldwide. A recent good precedent is the Framework Convention on Tobacco Control, where the WHO exercised its constitutional treaty-making power by consensus.

We are witnessing an extraordinary moment in history that urges leaders, international health organizations, global health advocates, the private sector, and the civil society to have a truthful conversation on how to transform our health systems through a health justice framework. The special session of the WHA is an opportunity to empower and engage with a larger constituency to lead deep reforms in global health governance. By agreeing on a set of standards on the right to health, we can initiate the process of transforming the nature of our health systems while reinvigorating global health security, institutions, and governance.

Martín Hevia is the Dean of the Universidad Torcuato di Tella Law School, President of the Ibero-American Association of Law Schools, and Past-Founding Chair of the Framework Convention on Global Health Alliance.

Ximena Benavides is a Yale Institute for Global Health (YIGH) Fellow, Yale Fox International Fellow, and a member of the Executive Committee of the Framework Convention on Global Health Alliance.

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