Evolution of Human Rights Under International Law to Advance Health Equity

The WHO Constitution was rapidly followed by the UN’s 1948 Universal Declaration of Human Rights, and there was great promise that human rights would support public health, with WHO advancing human rights in its international standards and state support. However, facing the international divisions of the Cold war era, WHO initially neglected the right to health, with the WHO Secretariat projecting itself as a “technical organization” that did not address “legal rights.”Footnote ¹ However, WHO member states came to see human rights as a political basis to achieve health equity.

Pressed by newly decolonized states to strengthen human rights obligations for health,Footnote ² WHO came together with UNICEF to convene the International Conference on Primary Health Care in Alma-Ata, U.S.S.R. This 1978 Conference codified WHO’s “Health For All” agenda, with the resulting Declaration of Alma-Ata: reaffirming the rights-based framing of the WHO Constitution; seeking a “New International Economic Order” to reduce health inequities across countries; and influencing a “health and human rights” movement that realigned human rights in global health governance.Footnote ³

Although international law had long recognized infringements of individual rights as necessary to protect public health, WHO came to see respect for equal rights as a precondition for the HIV/AIDS response.Footnote ⁴ With governments responding to this novel disease threat through discriminatory health policies, human rights offered safeguards against inequitable public health infringements. The escalating pandemic laid bare the “inextricable linkages” between individual freedoms and public health,Footnote ⁵ with WHO’s 1987 Global Strategy for the Prevention and Control of AIDS operationalizing human rights principles to frame equity in the HIV/AIDS response.

Seeking to “mainstream” human rights across health challenges, the WHO Secretariat enlisted its first human rights officials to build institutional capacity to advance human rights through WHO’s normative authorities.Footnote ⁶ WHO member states supported these human rights advancements, embedding rights in international legal responses to public health emergencies. Under the 2005 revision of the IHR, national health measures must be taken “with full respect for the dignity, human rights and fundamental freedoms of persons”Footnote ⁷ and be no more intrusive than reasonably available alternatives, operationalizing human rights as a basis for health equity.

Realizing Equity Under Global Health Law Through Human Rights

Human rights principles of equality and non-discrimination advanced health equity under WHO’s normative standard-setting, providing a basis to alleviate unfair, avoidable, or remediable differences within and across nations. WHO Secretariat programming to advance equity in women’s health, children’s health, reproductive health, and mental health expanded WHO’s institutional leadership to integrate human rights in global health policy, with broader work across WHO to address discrimination on the basis of race, gender, disability, and sexual orientation. WHO worked with both its member states and UN human rights structures to adopt guidance to ensure health equity through human rights.Footnote ⁸

These WHO efforts were complemented by non-governmental activists, who looked to the right to health to advance health equity across legal regimes. At the forefront of this effort, social movements advanced the right to health as a legal, political, and moral foundation to seek equitable access to essential medicines, challenging patent protections that undermine pharmaceutical affordability.Footnote ⁹ Building from this activism, an unprecedented 2001 UN General Assembly Special Session on HIV affirmed access to medicines as a global imperative. These emerging global norms supported national claims for health equity and pressed states to guarantee treatment access under the right to health.Footnote ¹⁰

Human rights came to play a central role across contemporary health equity challenges. Responding to longstanding inequities in development policy, human rights offered a normative foundation for equity under the 2015 Sustainable Development Goals (SDGs), with SDG 3 establishing health equity targets to “ensure healthy lives and promote wellbeing for all at all ages.” Health concerns would advance climate change governance, with WHO recognizing the inequitable health impacts of climate change and supporting states to incorporate the right to health under the 2015 Paris Climate Agreement. Human rights were reshaping global governance; yet, this rights-based governance faced new challenges in the COVID-19 response.

Human Rights Violations in National and Global Responses

The UN and WHO led early calls to respect human rights in public health responses to COVID-19, but states reacted instead with a “pandemic of human rights abuses,” pursuing emergency measures that escalated discrimination, threatened liberties, and neglected economic, health, and social needs—exacerbating health inequities.Footnote ¹¹ Beyond domestic violations, states threatened global solidarity in facing a common challenge, as many governments instituted sweeping border closures and discriminatory travel bans inconsistent with human rights obligations under IHR (2005). These discriminatory nationalist policies proved disastrous for vulnerable populations and poorer nations, as the world experienced rising inequity amid unprepared health systems and weak social protections.

These human rights violations persisted in global vaccination efforts. As high-income states dominated vaccine contracts and hoarded vaccine doses, this nationalism in vaccine procurement undermined extraterritorial human rights obligations to ensure international assistance and cooperation. Pharmaceutical patents further limited international cooperation to realize the right to health, with the World Trade Organization (WTO) disregarding widespread calls for waivers of intellectual property agreements to enhance vaccine production at the height of the pandemic. As the global response looked to charitable donations over rights obligations, widening disparities in vaccine access challenged international human rights obligations, leading to charges of “vaccine apartheid” as vulnerable populations remained dependent on inadequate donations and faced inequitable death.Footnote ¹²

WHO’s early guidance at the outset of the pandemic had called on states to uphold human rights as “key to the COVID-19 response,” emphasizing obligations to address discrimination, respect the rights of marginalized groups, and ensure international assistance and cooperation.Footnote ¹³ Yet even as these obligations were reaffirmed and elaborated by the UN human rights system, global health governance came to sideline human rights, with WHO falling back on moral appeals to equity rather than legal obligations for rights.Footnote ¹⁴ The inadequacy of these moral appeals amid expanding inequities prompted widespread calls to strengthen human rights in global health law reforms.

Human Rights Advocacy in WHO Negotiations

The development of global health law reforms offered a critical opportunity to codify human rights under WHO governance. Drawing from independent analyses that had faulted inequities in the COVID-19 response, WHO spearheaded calls for member states to negotiate twin global health law reforms—amendments of IHR (2005) and the development of a novel Pandemic Agreement—establishing new legal authorities for public health emergencies. Yet despite ongoing UN support to codify equity obligations through human rights,Footnote ¹⁵ intergovernmental negotiations steadily weakened obligations for human rights, equity, and accountability in global health law.Footnote ¹⁶

Seeking to uphold human rights in the reform process, states in the Global South united under the “Equity Group” to draw attention to health inequities in the pandemic, including inequitable vaccine access, and call for legal obligations to shape health equity.Footnote ¹⁷ Civil society groups sought to support these state efforts to advance human rights obligations, looking to establish accountability for equity and solidarity under global health law.Footnote ¹⁸ However, with many states viewing international human rights obligations as an infringement of national sovereignty, pushing instead for norms of health security, these global health law reforms would realize only vague, aspirational references to human rights.Footnote ¹⁹

Human Rights Limitations in Global Health Law Reforms

The 2024 amendments of IHR (2005) neglected to strengthen human rights in future public health emergencies. Although these amendments offered novel language on rights-related themes—including equity, solidarity, access to vaccines, and financing—these norms were not framed as legal obligations. Silent on the balance between public health promotion and human rights protections, these new IHR provisions leave the application of human rights to the interpretation of each state. This failure to link IHR amendments to human rights obligations, including in provisions with significant human rights implications (e.g., social measures and medical countermeasures), was compounded by the limited focus of IHR provisions on health financing, international assistance, and state implementation.Footnote ²⁰ Even as the amendments added equity and solidarity as guiding “principles” alongside human rights (with new provisions promoting equity in access to health products), advocates saw these amended regulations as insufficient to realize equity or rights, looking to continuing negotiations on the Pandemic Agreement.

Despite ongoing human rights advocacy to codify equity obligations under the Pandemic Agreement, international negotiations continued to step back from early commitments to human rights. The Pandemic Agreement mirrored the faults of the IHR Amendments, centering objectives on equity and solidarity while diluting the human rights obligations necessary to underpin these objectives.Footnote ²¹ States agreed to respect human rights as a cross-cutting principle, including through non-discrimination and gender equality, yet ambiguity on human rights provisions, without a shared legal definition of equity and solidarity, has weakened accountability for Pandemic Agreement commitments. The adopted Pandemic Agreement ultimately recognized human rights as only a guide, appealing to moral aspirations of equity and solidarity over legal obligations of human rights, with WHO member states still divided in negotiating the final remaining hope for binding equity obligations through an annex on pathogen access and benefit sharing (PABS).

Rebalancing Public Health and Human Rights

Where the COVID-19 response compounded health inequities, it will be crucial to clarify human rights obligations in public health emergencies. The 2023 Principles and Guidelines on Human Rights and Public Health Emergencies (PHE Principles) offer such legal clarification on international human rights obligations before, during, and after public health crises.Footnote ²² Developed through a three-year consultation between health and human rights scholars—alongside 150 representatives from civil society, health systems, and impacted communities—the PHE Principles interpret international human rights law in the context of pandemics, setting out legal standards for lockdowns, quarantines, travel restrictions, international cooperation, and vaccine distribution. These interpretations have already begun to shape national and global health efforts to realize health equity, with policymakers increasingly referencing the PHE Principles in legislative debates on pandemic preparedness.Footnote ²³ Operationalizing the PHE Principles offers an initial path to ensure that human rights uphold health equitably under global health law.

Implementing Global Health Law to Realize Equity in Global Health

The promise of reform through global health governance lies not only in the development of new legal norms but in their implementation, translating international legal commitments to equity into public health practice across nations. Even before the completion of global health law reforms under WHO, steps are already being taken to address the implementation of these respective reforms—through the new IHR States Parties Committee and the Pandemic Agreement Conference of the Parties.Footnote ²⁴ Human rights must be central to these implementation bodies, which provide institutional mechanisms to clarify obligations in global health law and hold states to account for implementing international legal obligations.Footnote ²⁵ Where pandemics belie the assumption that public health governance is primarily a matter of national sovereignty, realizing human rights through the implementation of global health law can facilitate equity and accountability in global health, making clear that collective challenges give rise to collective duties for global solidarity.

The financing of this implementation can serve either to reinforce existing inequalities or to reconfigure global health governance to realize human rights. To ensure equity through IHR implementation, continuing efforts to establish a Coordinating Financing Scheme must operationalize duties of international cooperation under human rights law, including extraterritorial obligations to support global health governance during public health emergencies, shifting international assistance from acts of charity to duties of solidarity.Footnote ²⁶ This expansion of international assistance and cooperation can be complemented by WHO efforts to support regional pharmaceutical manufacturing in the Global South, building national capacity to end the cycle of extraction and dependency, improve technology transfer, establish just PABS agreements, and ensure the promise of equity in access to essential medicines—through global health law and across legal regimes.Footnote ²⁷

Aligning International Legal Regimes to Ensure Equity

Global health law does not operate alone to influence global health, as seen in the context of international trade, economic development, and intellectual property governance, where a range of legal regimes influence global health inequities.Footnote ²⁸ Ensuring health equity will require greater alignment between global health law and other international legal regimes that underlie global health. However, each body of international law follows distinct legal principles, some of which prioritize commercial, security, or other interests over public health. Despite missed opportunities to advance human rights under WHO reforms, human rights remain central in the advancement of global health. International human rights law can facilitate systemic integration across legal regimes to advance health equity, resolving tensions between global health law and the larger legal landscape that underlies health. By harmonizing diverse international legal systems around a shared commitment to equity under human rights law—embedding human rights obligations into trade, development, and environmental law—human rights can facilitate a more equitable international order for global health.

Systemic integration under human rights law can thus provide the normative foundation for coherence across international legal regimes to realize the highest attainable standard of health for all. However, there remain implementation challenges to ensure that health equity takes precedence over narrow economic interests. In challenging commercial or financial interests, for example it will be necessary to regulate multinational corporations to facilitate accountability for human rights.Footnote ²⁹ Corporate accountability currently relies on non-binding frameworks, with the limitations of these voluntary systems seen in failed efforts to realize vaccine equity in the COVID-19 response. The 2011 UN Guiding Principles on Business and Human Rights provide an initial framework for states to protect human rights, businesses to respect them, and victims to have access to remedies. Yet, while this framework provides a foundation for corporate responsibility, legal enforceability remains a challenge, with transnational corporations continuing to act in ways that undermine human rights with international impunity. Continuing UN efforts will be necessary to strengthen corporate accountability through a binding treaty on business and human rights,Footnote ³⁰ establishing enforceable standards for health equity under international law.