10.09.2021
Introduction to the Online Symposium of the Jean-Monnet-Saar Blog
by Thomas Giegerich
The COVID-19 pandemic has caused an unprecedented and truly global health emergency. In the last 20 months, it has killed over 1 million humans worldwide and stricken many more, health-wise, psychologically, financially, socially and in many other respects. It has affected the poor South more than the rich North of the earth. It has strained international cooperation within the World Health Organization no less than supranational decision-making in the European Union. It has led to proclamations of states of emergency with derogations from human rights treaty obligations, business shutdowns, university and school closings, lay-offs and short-time work, border closings, quarantines, curfews and numerous other forms of grave human rights interferences.
Myriads of human rights cases raising the question of how to reconcile individual rights and freedoms with the general interests of public health are working their way up through the court systems everywhere, some having already reached the European Court of Human Rights.[1] In the Athens Declaration by the Committee of Ministers Chairmanship on “Effectively responding to a public health crisis in full respect for human rights, democracy and the rule of law”, the Council of Europe reiterated that (as a matter of course) “[d]uring a crisis and ensuing state of emergency, any exceptional measures taken must be … in full conformity with the European Convention on Human Rights and other human rights obligations”.[2] The UN Human Rights Treaties Bodies have also made numerous pertinent statements.[3] The Inter-American Court of Human Rights issued a Statement already on 9 April 2020 that the problems and challenges caused by COVID-19 had to be addressed from a human rights perspective and with respect for international obligations.[4] The African Court on Human and Peoples’ Rights issued an Advisory Opinion on 16 July 2021 “on the right to participate in the government of one’s country in the context on an election during a public health emergency or a pandemic, such as the COVID-19 crisis”.[5]
Even the UN Security Council, to which UN Member States have conferred “primary responsibility for the maintenance of international peace and security” in Art. 24 (1) of the UN Charter, has sprung into action three times so far, on the ground that a global public health emergency is not far from a threat to international peace and security.
In Resolution 2532 of 1 July 2020, the Security Council did not “determine” anything in the sense of Art. 39 of the UN Charter or “decide” anything in the sense of Art. 25 of the UN Charter which would have imposed legal obligations on UN Member States. Yet, in the preamble, it expressed “grave concern about the devastating impact of the COVID-19 pandemic across the world, especially in countries ravaged by armed conflicts, or in post-conflict situations, or affected by humanitarian crises” and recognized “that conditions of violence and instability in conflict situations can exacerbate the pandemic, and that inversely the pandemic can exacerbate the adverse humanitarian impact of conflict situations” before “[c]onsidering that the unprecedented extent of the COVID-19 pandemic is likely to endanger the maintenance of international peace and security”. This statement is much more cautious than the one in the preamble of Resolution 2177 (2014), where the Security Council was “[d]etermining that the unprecedented extent of the Ebola outbreak in Africa constitutes a threat to international peace and security”.[6] There it went quite far on its way to Chapter VII of the UN Charter. By contrast, the reference to Art. 39 of the UN Charter in Resolution 2532 is lukewarm at best. It seems that the Security Council is not yet ready to accept a comprehensive concept of peace and security going beyond the mere absence of armed conflict and including health, environmental, economic and other components.
In the operative part of Resolution 2532, the Security Council demanded (not: ordered) “a general and immediate cessation of hostilities in all situations on its agenda” (except those against terrorist groups) and “called upon (not: ordered) all parties to armed conflicts to engage immediately in a durable humanitarian pause for at least 90 consecutive days, in order to enable the safe, unhindered and sustained delivery of humanitarian assistance … and medical evacuations, in accordance with international law, including international humanitarian law and refugee law as applicable”, again except armed conflicts with terrorist groups. Eight months later, in the preamble of Resolution 2565, the Security Council expressed disappointment that its “call for a general and immediate cessation of hostilities” had not been fully heeded. Were Security Council Members surprised by this?
The legal vigour of Resolution 2565 of 26 February 2021 is no greater than that of Resolution 2532, but its scope is much broader. In the preamble, the Security Council repeats its lukewarm hint at Art. 39 of the UN Charter of the previous resolution. It also reaffirms a statement it already made in the previous resolution, “that combating and sustainably recovering from the coronavirus disease (COVID-19) pandemic requires greater national, regional, and international cooperation and solidarity, and a coordinated, inclusive, comprehensive and global international response with the United Nations (UN) playing a key role”. But now, however, it seems ready to draw human rights consequences by “[e]mphasising the unity, common origin and solidarity of mankind, and the need for intensified international collaboration in the face of the common threat of pandemics, in particular by enabling equitable global access to quality, safe, efficacious and affordable diagnostics, therapeutics, medicines and vaccines, and essential health technologies, and their components, as well as equipment for the COVID-19 response, in situations of armed conflict, post-conflict situations, and complex humanitarian emergencies, and taking into account the need to maintain incentives for the development of new health products”. It also stresses the obvious – that “equitable access to safe, efficacious, and affordable COVID-19 vaccines is essential to end the pandemic”.
Does this not effectively proclaim a general right to health of mankind which is addressed to the international community as a whole, if only in the preamble? While the Security Council mentions “situations of armed conflict”, it does so only as a lip-service to its primary responsibility, because the subsequent reference to “complex humanitarian emergencies” serves as a general clause going far beyond military aspects and transforming its statement into a general one. Irrespective of its indeterminacy, such a general human right to health in nuce has a potential going much further than its codified counterparts in Art. 12 of the International Covenant on Economic, Social and Cultural Rights, Art. 11 of the European Social Charter (revised) and Art. 16 of the African Charter on Human and Peoples’ Rights which oblige each State to protect and promote the health of its own population.[7] It apparently is a (third-generation?) solidarity right (of peoples?). At the same time the Security Council twice underlines the necessity of maintaining patent protection for pharmaceuticals, thus recognising the inherent limits of such a right in the real world. One can speculate whether the Security Council has taken a step toward extending the concept of the “responsibility to protect” of the international community (acting through the United Nations) which has so far only covered protection of populations from “genocide, war crimes, ethnic cleansing and crimes against humanity”[8] to protection from pandemics and vaccine shortages.
In the first operative paragraph of Resolution 2565, the Security Council “calls for the strengthening of national and multilateral approaches and international cooperation, such as the COVAX Facility created within the ACT-A, and other relevant initiatives as appropriate, in order to facilitate equitable and affordable access to COVID-19 vaccines in armed conflict situations, post-conflict situations and complex humanitarian emergencies, stresses the need to develop international partnerships particularly to scale-up manufacturing and distribution capabilities, in recognition of differing national contexts, and notes the need to maintain incentives for the development of new health products; and recognising the role of extensive immunisation against COVID-19 as a global public good for health”. Here again, the general right to health shines through. Only then come several paragraphs devoted to hostilities and armed conflict.
On 19 May 2021, the Security Council entered the scene for the third time, but only by a Presidential Statement regarding the agenda item “Peace and security in Africa … in light of the extraordinary circumstances caused by the COVID-19 pandemic”.[9] Presidential Statements are below resolutions on the scale of Security Council instruments, but reflect the consensus of the Members. The Presidential Statement of 19 May 2021 partly repeats statements made in the two aforementioned resolutions and expresses the Security Council’s “grave concern about the devastating impact of the coronavirus disease (COVID-19) pandemic, which has caused severe socioeconomic, political, humanitarian and security repercussions, and further exacerbated existing conflict drivers in Africa”. It then adds the following:
“The Security Council stresses the need for greater support to African countries, especially those conflict-affected countries, and regional and sub-regional organizations, in order to recover from the pandemic and build back better in a more just, equal, equitable and inclusive manner, including through providing necessary medical supplies, including safe and efficacious tests, treatments and vaccines and supporting African countries in strengthening their health systems.
“The Security Council expresses concern that Africa has only received 2% of all vaccines administered globally and reiterates the need to enable equitable access to quality, safe, efficacious, and affordable COVID-19 diagnostics, therapeutics, medicines and vaccines to all, including the most vulnerable, alongside support to strengthening health systems to ensure effective delivery and invites continued, increased and accelerated donation of safe and effective vaccine doses from developed economies and all those in a position to do so to African countries in need, particularly through the Access to COVID-19 Tools (ACT) Accelerator, COVAX Facility and other relevant supplies and assistance as appropriate, and commends the efforts of member states in this regard.
“The Security Council acknowledges ongoing discussions in connection with efforts for waiving intellectual property protections for COVID-19 vaccines under relevant WTO framework and easing global trade in support of providing access to vaccines to everyone in need, including to African countries, and further stresses the need to improve availability of raw materials and support the voluntary transfer of technology and know-how on mutually agreed terms in order to increase production capacity.”
The Presidential Statement focusses the general human right to health in nuce on the situation in Africa and further specifies it in the sense of “equitable access to quality, safe, efficacious, and affordable COVID-19 diagnostics, therapeutics, medicines and vaccines to all, including the most vulnerable”. With regard to the last paragraph quoted above on intellectual property protection, the Presidential Statement makes no more reference to “the need to maintain incentives for the development of new health products”, as it did in the two resolutions.
In conclusion, the Security Council seems to have initiated a process of creating a soft-law general right to health of mankind vis-à-vis the international community as a whole and augmenting the “responsibility to protect”. In the course of time this can produce hard-law consequences in the form of individual entitlements and corresponding obligations of States, international organisations and private businesses with transfrontier effects. This seems to go quite far but would actually do no more than realise the promises made in 1946 in the preamble of the Constitution of the World Health Organization:
“The enjoyment of the highest attainable standard of health is one of the fundamental rights of every human being without distinction of race, religion, political belief, economic or social condition.
The health of all peoples is fundamental to the attainment of peace and security and is dependent upon the fullest co-operation of individuals and States.”
[1] See, e.g., ECtHR, Decision of 20 May 2021 (Appl. No. 49933/20) – Terheş v. Romania (inadmissible). See also the Factsheet COVID-19 Health Crisis by the Press Unit of the ECtHR (https://www.echr.coe.int/Documents/FS_Covid_ENG.pdf).
[2] CM(2020)110-final of 3 November 2020.
[3] OHCHR, Human Rights Treaties Branch: Compilation of statements by human rights treaty bodies in the context of COVID-19, September 2020 (https://www.ohchr.org/Documents/HRBodies/TB/COVID19/External_TB_statements_COVID19.pdf).
[4] Statement 1/20 (https://www.corteidh.or.cr/tablas/alerta/comunicado/Statement_1_20_ENG.pdf).
[5] Request No. 001/2020 by the Pan African Lawyers Union (PALU), https://www.african-court.org/cpmt/storage/app/uploads/public/60f/574/3a6/60f5743a61e75369142990.pdf.
[6] See Charlotte Steinorth, The Security Council’s Response to the Ebola Crisis, EJIL Talk, March 2, 2017 (https://www.ejiltalk.org/the-security-councils-response-to-the-ebola-crisis-a-step-forward-or-backwards-in-the-realization-of-the-right-to-health/).
[7] See in that sense also the last principle in the preamble of the WHO Constitution of 22 July 1946: “Governments have a responsibility for the health of their peoples …” On the other hand, Art. 2 (1) ICESCR already includes a general obligation to participate in “international assistance and cooperation” for the purpose of progressively achieving the full realization of, among others, the right to health in Art. 12 ICESCR (Eibe Riedel, Health, Right to, International Protection, in: Max Planck Encyclopedia of Public International Law, OUP online edition, 2011, margin note 39).
[8] See the 2005 World Summit Outcome, UN General Assembly Resolution 60/1 of 2005, paras. 138 – 140.
[9] S/PRST/2021/10.
Suggested Citation: Giegerich, Thomas, Human Rights during the Pandemic: Enter the UN Security Council as Supporting Actor, jean-monnet-saar 2021, DOI: 10.17176/20220428-123504-0
