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  • Tarazi Mohammed Sheikh

Navigating the Pandemic Landscape: The Significance of a Modern Pandemic Treaty – Part II

Updated: Jul 3, 2023

This article is authored by Tarazi Mohammed Sheikh, a Penultimate-year Law Student at BRAC University.

Relevance and significance of adopting an international instrument on pandemic

(b) Protection of human rights

A pandemic has manifold links with human rights, as the experts of the United Nations assert, that the negotiations for an international instrument on pandemic prevention, preparedness, and response must be conducted in line with human rights. The COVID-19 pandemic, in the past 3 and more years, has made clear that a pandemic, directly and indirectly, affects several economic, social, and political rights of people, among which the right to life, the right to appropriate healthcare, the right to freedom of expression, assembly and movement are common worldwide.

Several instruments in international law recognize the rights of every human being for their tranquil exercise of economic, social, and cultural functions. However, unprecedented circumstances like the COVID-19 pandemic evidently give rise to questions as to whether rights are being violated in the process of addressing the crises. The International Covenant on Economic, Social and Cultural Rights (1966) (“ICESCR”) provides in its preamble the objective to “...[recognize] the inherent dignity and equal and inalienable rights of members of the human family..]” as the foundation of freedom, justice and peace in the world. In Article 1(1), the ICESCR provides the right to self-determine the economic, social and cultural status. The ICESCR prohibits any interpretation of its provisions to be utilised for barring the freedom and recognition of anyone’s rights at any stage in Article 5. Article 6 provides the right to freely determine one’s occupation and safeguards relating to the occupation. Article 7 ensures rights and equality pertaining to wages and remuneration of the workers. The right to social security and insurance has been guaranteed under Article 9 of the ICESCR. Furthermore, Article 12 of the ICESCR conforms to the enjoyment of the highest attainable standard of physical and mental health of a person which includes the prevention, treatment and control of epidemic, endemic and similar cases, as such of the COVID-19 pandemic. The right to basic and uninterrupted education and enjoyment of a social life filled with cultural engagements are secured in Articles 13 and 15 respectively. Further, Article 16 obligates the States parties to adopt necessary steps at any stage to protect the rights under the ICESCR. In that vein, the COVID-19 pandemic has resulted in the violation of the aforementioned rights at different stages. Many people around the world have been deprived of their right to freely determine their occupation and their rightful demand of wages according to their work as the employment rate dropped significantly due to the severe collapse of the economic system in most parts of the world. Ultimately, the economic status also threatened the social security of many people. The right to the highest attainable standard of physical and mental health has been under threat, not to mention, in every part of the world as people sustained damages relating to not only medical health but also economic, social and familial issues. The basic education of many children and the cultural programs have been interrupted as countries imposed months-long lockdowns to prevent the spreading of the virus.

Likewise, the COVID-19 pandemic threatened the civil and political rights of the general people at various levels throughout the years. The International Covenant on Civil and Political Rights, 1966 (“ICCPR”) in its preamble specifies its objective to accelerate the protection of human rights in line with the Universal Declaration of Human Rights (1948) to recognize “...the ideal of free human beings enjoying civil and political freedom and freedom from fear…]” Similar to the ICESCR, it provides the right to freely determine one’s political status in Article 1(1). Then Article 2 provides the equal treatment of all people regardless of race, religion and language or social origin. An important provision of the ICCPR, Article 4, provides provisions relating to public emergencies. It asserts that the circumstances of public emergency shall be addressed and necessary steps shall be taken, however, without derogating the rights and without emanating discrimination “solely on the ground of race, colour, sex, language, religion or social origin” Article 6 provides the legal protection of the right to life followed by the right to liberty and security in Article 9. Further, Article 12 provides the right to lawful movement within and out the territory, which is further subject to reasonable restrictions. Such reasonable restrictions may be extraordinary situations like public emergencies or a pandemic. Article 21 of the ICCPR provides the right to peaceful assembly. However, this right is also subject to reasonable restrictions, including public health emergencies and public order as per the texts. Article 24 of the ICCPR provides rights relating to non-discrimination based on origin, which is further reiterated in Article 27. Albeit, the world has witnessed an upsurge of racial discrimination against a specific group of people, particularly Asians, during the COVID-19 pandemic in the assumption that the virus has emanated from China, hence the liability belongs to the Chinese and Asian people. As a result, several violent encounters have been reported in many countries with specific racial groups. Therefore, the instrument on pandemic also concerns provisions relating to the prevention of racial discrimination.

Limitations and future implications

While yet in the process of drafting, the finalised provisions of the convention or agreement remain unsure to date. While a hugely responsive consent of 194 countries initiated the drafting process, streaks are high that not all countries may agree with the final drafting and ratify it. The Chief of WHO in a recent statement indicated that the end of the COVID-19 pandemic is not far in sight. Hence, the pandemic can only be used as a model to draft the instrument as most of the factors behind a scientifically triggered disaster to remain unknown and subject to a time-consuming process of experiments.

It is estimated that because the push for the adoption of a Pandemic Treaty arose due to the enormous challenge posed by the pandemic, a good number of countries expressed conformity with the initiative. However, the long-run success of any new adoption greatly depends on the compatibility of the instrument. In international legal practice and literature, there is no standard formula to determine the effectiveness of a multilateral treaty. As a result, the term ‘treaty effectiveness’ does not exist in the international legal regime. However, there may be some factors and indicators considered conducive to the success and specification of issues that essentially detract from positive outcomes can be deduced based on the past reviews and experiences of a large number of treaties and instruments in force. Despite the attempts to extract a fully-fledged framework to prevent, prepare and be responsive to pandemics in the future, the prospective international instrument demonstrates several limitations. Such adoption would not only pave the way for the expression of true political motive to work in line with global health and protection measures as well as provide an all-inclusive and sustainable framework to foster global cooperation against threats posed by pandemics, endemics and beyond. Another limitation of the instrument may be concerning unequal enforceability.

Furthermore, the signing parties have sought a progress report on four key inputs, which include a requirement for the member states and stakeholders to provide a written copy of the drafts of the treaty, the 2022 WHO Regional Committees to conduct regional consultations on the provisions and their effectiveness, informal and focused discussions on specific topics with experts, specialist and concerned officials; and finally, to conduct public hearings for relevant stakeholders to express their comments and observations of the proposed drafts. The scope for States to conform to the treaty after its adoption is estimated to be governed by the decisions of the Member States and the intergovernmental negotiating body. It is further expected that the new accord shall remain open for all States to ratify and contribute in line with the example of the FCTC.

What significantly sets the pandemic aside from other man-made disasters, is that it is unpredictable and sensitive to address. While there are several data available on the estimation of the harm caused by the pandemic in 3 years, the actual damage is uncountable by data. Further, the pandemic also imposes risks of genetic mutilation and permanent medical damage to affected living beings which may be descended to the future generation without alert. Additionally, while the pandemic caused severe damage to the world economy, however, specific countries of low income and lower GDP faced the most threats. Hence, it may be a challenge for the economically shallow States to enforce the instruments at their best. As a result, it is pertinent to adopt the most sustainable instrument to avoid maximum damage in the future caused by a pandemic, endemic or similar disaster.

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