An inquiry into state agreement and practice on the international law status of the human right to medicines. (Special Issue: COVID-19 vaccine equity and human rights.)

Global disparities in access to COVID-19 vaccines have brought back into focus questions about whether the right to medicines has assumed any level of binding legality within international law. In this paper, we attempt to answer this question by considering if there is evidence of subsequent state agreement and practice to read the right to medicines into the rights to health and science protected in the International Covenant on Economic, Social and Cultural Rights. We adopt the interpretive framework in the Vienna Convention on the Law of Treaties and the International Law Commission's 2018 report to analyze the work of the United Nations Committee on Economic, Social, and Cultural Rights relevant to medicines, and its relationship to the content and voting in successive resolutions of the United Nations General Assembly. We find that these resolutions provide some evidence of state agreement that the rights to health and science, as enshrined in the International Covenant on Economic, Social and Cultural Rights, include access to affordable medicines. Yet the legal implications of this right remain highly contested, particularly when it comes to trade-related intellectual property rights. The negotiation of a pandemic treaty offers possibilities for codifying this right beyond these discursive instances, while political opposition remains likely to continue to undercut this emerging legal norm.

Introduction to a Special Issue on Reforming the International Health Regulations

This special issue of the International Organizations Law Review is dedicated to the potential reform of the International Health Regulations (IHR)? It may be surprising to readers of this journal that a whole issue is focusing on a normative instrument rather than directly on an international institution. This choice may be explained by many factors that render the IHR a particularly interesting instrument at the crossroads of international law, the law of international organizations, and complex governance questions on how to produce a global public good such as the protection of humankind from the ravages of infectious diseases. The World Health Organization (WHO ), as the institutional custodian and manager of the IHR, has progressively and holistically integrated the latter into its governance as a component of its broader health emergency functions. The IHR -the primary legal instrument to prevent and control the international spread of disease -has also inevitably become a normative benchmark for other international institutions, thus raising delicate questions of regime complexity and coordination.2 The COVID-19 pandemic has amplified and exacerbated these issues and projected them to the highest level of international politics.(3)

The World Health Organization, International Health Regulations and Human Rights Law

This article examines the influence of human rights law on infectious disease control through the World Health Organization (WHO) International Health Regulations ('IHR'). The WHO's evolving work to mainstream human rights in global health governance strongly influenced the 2005 revision of the IHR, framing a new balance between health and human rights in public health emergencies. The 2005 IHR make respect for human rights a central principle and integrate human rights standards in explicit and implicit ways. Yet these reforms also fail to reflect economic, social and cultural rights, inadequately connect to the UN human rights system, and leave unresolved significant legal issues with major impacts on human rights. These weaknesses have been exposed by the COVID-19 pandemic, as national pandemic responses have tested WHO's authority under the IHR and disproportionately and unjustifiably restricted a range of human rights. Resolving these gaps will require both normative and institutional reforms that bring together human rights and global health governance, including through broader rights-based partnerships amongst international organizations.

Who Deserves Health Care in a Global Pandemic?

The COVID-19 pandemic provides an opportunity for reflection on universal health coverage. We look at the case of the province of Ontario, Canada, which expanded health care entitlement during the pandemic to people not normally eligible for coverage, regardless of their citizenship or immigration status. We use the concept of health-related deservingness to examine why certain groups of people are deemed undeserving and are excluded in ordinary times but included in extraordinary times. We argue that tying health-related deservingness to citizenship or immigration status creates problematic inequities in health care access and outcomes and that entitlement to health care should be based instead on a person's right to health. A right to health approach could make health care systems truly universal and comprehensive. We recommend that expanded entitlement to care should be sustained, both in Ontario and elsewhere, beyond the COVID-19 crisis.

Reform, rather than discard the WHO

Kohler argues that the COVID-19 pandemic has illustrated the weaknesses of the World Health Organization (WHO), and she recommends creating a new “streamlined, nimble and effective institution” (2021: 10) in its stead. I argue that the WHO has a deep institutional history, legal tradition and authority that would be unwise to discard and difficult, if not impossible, to recreate. I argue that strengthening the WHO’s legal and institutional framework offers our best chance at better advancing global health cooperation. © 2021 Longwoods Publishing Corp.. All rights reserved.

The Stellenbosch consensus on the international legal obligation to collaborate and assist in addressing pandemics: Clarifying article 44 of the International Health Regulations

The International Health Regulations (IHR), of which the World Health Organization is custodian, govern how countries collectively promote global health security, including prevention, detection, and response to potential global health emergencies such as the ongoing COVID-19 pandemic. While Article 44 of this binding legal instrument requires countries to collaborate and assist each other in meeting their respective obligations, recent events demonstrate that the precise nature and scope of these legal obligations are ill-understood. A shared understanding of the level and type of collaboration legally required by the IHR is a necessary step in ensuring these obligations can be acted upon and fully realized, and in fostering global solidarity and resilience in the face of future pandemics. In this consensus statement, public international law scholars specializing in global health consider the legal meaning of Article 44 using the interpretive framework of the Vienna Convention on the Law of Treaties. © Margherita M. Cinà et al., 2020.

Should COVID-19 Vaccines Authorized for Emergency Use Be Considered "Essential" Medicines?

A critical debate in the race to develop, market, and distribute COVID-19 vaccines could define the future of this pandemic: How much evidence demonstrating a vaccine's safety and efficacy should be required before it is considered "essential"? If a COVID-19 vaccine were to be designated an essential medicine by the World Health Organization, this would invoke special "core" human rights duties for governments to provide the vaccine as a matter of priority irrespective of resource constraints. States would also have duties to make the vaccine available in adequate amounts, in the appropriate dosage forms, with assured quality and adequate information, and at an affordable price. This question is especially critical and unique given that COVID-19 vaccines have in many cases been authorized for use via national emergency use authorization processes-mechanisms that enable the public to gain access to promising medical products before they have received full regulatory approval and licensure. In this paper, we examine whether unlicensed COVID-19 vaccines authorized for emergency use should ever be considered essential medicines, thereby placing prioritized obligations on countries regarding their accessibility and affordability.