International Pandemic Lawmaking

This symposium, “International Pandemic Lawmaking: Conceptual and Practical Issues,” was convened with two primary aims: to shed light on the inequities and imbalances exposed by global pandemic response, and to advocate recommendations on which principles should guide the framing and drafting of a potential international instrument on pandemic preparedness and response.

However, while good principle can guide good action, to be effective it must be more than good principle; and more substance is needed than good design. Thus, these symposium posts published each day on Bill of Health and the Verfassungsblog, along with our accompanying editorials, look not only to the design of such an instrument, but also its implementation and enforcement.

The SARS-CoV-2 pandemic has brought global health structures into sharp relief: it exposed the gross inequalities and inequities of health care access, as well as the symbiosis between human rights, health care, politics, economics, and the law. National lockdowns, stay-at-home mandates, business and educational establishment closures, and consequent mass unemployment – primarily of low-skilled and casual workers – have disproportionately and negatively impacted vulnerable and marginalized groups, including women, children, minorities and indigenous communities. While unprecedented sums for social welfare packages have been disbursed, they have been ineffective in forestalling escalating rates of poverty and inequality.

The locus of authority for pandemic response has been primarily within national executives, and often to the exclusion of any international coordination or influence, representing, in effect, a nationalization of response.

The chasm between international law and national law responses to COVID-19 is reflected in the comparative poverty of references to international norms or standards in the actions and decisions taken at the national level. Measures adopted have made scarce reference to the International Health Regulations (2005). The limited observable engagement with international human rights obligations in executive decision-making or national discussions on the legitimacy, proportionality, temporariness, and legality of pandemic responses only provide further evidence of this gap.

While calls for solidarity have echoed in the global context of sharing information and data, there are sharp divides in the willingness to share the fruits of that labor in the intellectual property for diagnostics and vaccines. In May 2021, the Director-General of the World Health Organization highlighted with concern that 75% of all vaccines had been administered in only ten countries, and, to date, less than 3% of people in low-income states have received at least one dose, compared to almost 60% in high-income states. It is within this context that a special session of the World Health Assembly is scheduled to take place in November 2021 to discuss a potential international instrument on pandemic preparedness and response.

The Symposium seeks not only to inform the upcoming international discussions on a new legal instrument, but to widen the debates.

Leading scholars and rising voices from around the globe will inter alia advocate for: global regulatory standards to recognize mutual interest and prevent transboundary harm; the integration of gender and intersectional equality mechanisms; a framework for data governance; and the international institutionalization of sharing transparent information and technical expertise; as well as means by which isolationist nationalized institutional processes for decision-making in pandemic preparedness and response can be eschewed in favor of a collective and coordinated global effort. The Symposium will showcase a range of perspectives, from enthusiastic embrace of a pandemic treaty, to skepticism surrounding the geopolitics of such a law-making exercise.

In hosting this Symposium, we join with other communities of scholars and advocates engaged in similar debates across regional fora, and from different disciplinary perspectives, and recognize the problem of siloed discussion. Publishing our editorials in English, French, and Spanish on blogs based in the U.S. and Germany, with webinars hosted in the U.K. presenting speakers based around the globe, we hope to recognize and invite wide participation in this essential debate on a collective challenge.

In the opening to this Symposium, we offer some initial thoughts: As evidenced, rhetoric of solidarity and sharing responsibility often only echoes until the bill for health is put on the table. Invocations for the essential importance of human rights must recognize the underlying socio-legal complexities in how they may be realized. The global asymmetries in capacity to respond must be reflected: for legitimacy, collective investment, and sheer quality, a democratized process involving wide representation and participation from varied constituencies, including civil society both within and across countries of differing income and resource levels, must be present.

To be integrated with any serious consequence, a new instrument on pandemic response must engage with the boundaries of national constitutional or other public norms. States must also pay more than lip service to the obligations of international human rights instruments in the limitation and derogation of rights. A first hurdle, however, is to justify the need for such a new instrument where it does not replicate the inadequacies, limitations, and incapacities of past and existing instruments.

Joelle Grogan, on behalf of the Editors.