Larger Concerns About Fragmentation in International and Global Health Law

The limited interaction between pandemic law reforms and international human rights law is symptomatic of a larger problem of fragmentation in international law. In the past eighty years specialized regimes in multiple issue areas have proliferatedFootnote ¹ as have exponential numbers of international treaties.Footnote ² The siloed nature of these regimes and treaties has led to growing concerns about fragmentation and incoherence within international law.Footnote ³ In its exploration of this phenomenon, a 2006 International Law Commission (ILC) report argued for application of the principle of systemic integration to link functional areas to a deeper normative idea in international law, that the “common good of humankind [is] not reducible to the good of any particular institution or regime.”Footnote ⁴

While scholarly attention to this principle has grown ever since, this scholarship has seldom considered how systemic integration might apply in the fields of international law related to global health. Instead, a new subfield of global health law has emerged, a field of scholarship which is itself an attempt to achieve functional coherence amongst the fragmented international law regimes related to health.Footnote ⁵ If global health law is itself an attempt to achieve systemic integration within international law, then human rights are seen as offering the potential for normative harmonization throughout. For example, some global health law scholars see human rights law and especially the right to health as “a core, unifying standard,”Footnote ⁶ “pillar,”Footnote ⁷ and “bridge,”Footnote ⁸ between international legal regimes related to health, and “a foundation for advancing global health with justice.”Footnote ⁹

Disparities in Access to Vaccines Illustrate the Practical Threats of Fragmentation

It is arguable that global disparities in COVID-19 vaccines clearly illustrated what incoherence amongst global health law regimes can produce. The legal and political disconnect between the international law regimes linked to vaccine access during a pandemic assured that access to vaccines would not be governed by the IHR, which was silent on this issue, nor by human rights, where political contestation has prevented binding international law status for rights to health and medicines and assured frequently weak force for the binding standards of international human rights law.Footnote ¹⁰ This disconnect was certainly not remedied by soft political commitments to universal and affordable access to vaccines in the Sustainable Development Goals.

To the extent that law mattered when it came to vaccine access, it was law codified in the World Trade Organization (WTO), the only body of global health law offering universally binding legal rules enforced through strong institutions. These rules are exemplified in the TRIPS Agreement’s protections of intellectual property rights, which beyond the legal constraints of patents themselves, tightly restrict the production, movement, and sales of pharmaceuticals globally. Indeed, the constricting impact of these rules on affordable access to medicines was highlighted during human rights campaigns for affordable access to antiretroviral medicines during the HIV/AIDS crisis in the late 1990s and early 2000s. While these campaigns sometimes achieved transformative material outcomes in global access to antiretrovirals in the short-term, they produced vanishingly little hard global health law.Footnote ¹¹ Arguably, the most legally significant change these campaigns achieved in the WTO was the Doha Declaration on Public Health, a symbolic recognition of the right of political actors to limit intellectual property rights in service of public health and access to medicines.Footnote ¹² Yet the Doha Declaration did not go much further than TRIPS itself in promoting flexibilities as acceptable limits to intellectual property rights in service of public health.

In this light, it is no coincidence that the first move toward law reform during COVID-19 came from outside the WHO and formal human rights institutions through the WTO TRIPS waiver proposal.Footnote ¹³ The waiver proposal brought by India and South Africa asked to waive key parts of TRIPS in relation to the prevention, containment, or treatment of COVID-19 for the duration of the pandemic. While grounded explicitly in WTO law rather than human rights, the waiver attempted to radically reshape international trade law to recognize an emergency-based public health (and ergo human rights) rationale not only for restrictions but virtual derogations of WTO law. In this light, the waiver can be seen as analogous to provisions in international human rights law that allow derogations of human rights in service of compelling public interests like public health.

Nor would it be a surprise for anyone who follows access to medicines politics, that the waiver failed to materialize in the form requested, nor at a time when it would have mattered most.

This has been the fate of almost all treatment advocacy since HIV and AIDS.Footnote ¹⁴ When a settlement on the TRIPS waiver was finally reached in 2022, it was far weaker than what had been requested.Footnote ¹⁵ It limited the scope of any waiver to patents (not intellectual property rights), to COVID-19 vaccines (not diagnostics and therapeutics), to low and middle-income countries (not to other countries), and to a duration of five years only, in some sense dashing the legal opportunities for the waiver to be used outside COVID-19. In addition, developing country WTO members “with existing capacity to manufacture COVID-19 vaccines [were] encouraged to make a binding commitment not to avail themselves of this Decision.”Footnote ¹⁶

Yet we should not count out the waiver’s potential legal significance nor precedent setting capacity. Even within its limitations, the settlement has arguably shifted the Overton window on what states could even conceive as limitations of intellectual property rights during a public health crisis by moving far beyond TRIPS flexibilities as a primary mechanism. This impact could matter more over time than is evident right now.

Whatever its long-term potential, neither the waiver, nor the Doha Declaration, nor long-standing political commitments to medicines access, nor nascent legal interpretive offerings around a right to medicines could prevent the gross disparities in access that ensued. Instead, power, fear, greed, bias, and self-interest superseded any ideas of equity, fairness, rights, or solidarity; crushed the trust and reciprocity integral to the effective functioning of the IHR; and actively harmed both the governance of COVID-19 and public health outcomes.

The Shift to Equity in Pandemic Law Reforms

Against this backdrop, it is perhaps not surprising that human rights as a suite of entitlements and freedoms within international human rights law, were not a focal point in these reforms. Instead, in both instruments, states pivoted to the far broader concept of “equity” to express their desire for greater fairness and justice in pandemic governance, adopting equity as a foundational principle and incorporating multiple provisions to assure “equitable access” to health products. Yet as discussed below, equity is defined in only the Pandemic Agreement, leaving its legal meaning and relationship (if any) to human rights unclear.

Equity in the 2024 IHR Reforms

While the IHR had been revised multiple times over its history, persistent inadequacies during COVID-19 served as an inflection point for a novel reform process that began in May 2022 when the World Health Assembly (WHA) established an Intergovernmental Working Group on Amendments to the IHR to garner member state proposals (WHO 2022), and an independent Review Committee to provide expert technical advice (WHO 2023). On June 1, 2024, member states of the WHA adopted a substantial package of amendments to the IHR by consensus,Footnote ¹⁷ which came into force in September 2025 for all WHO member states.

The 2024 reforms make a range of changes to the IHR including: (1) adding equity and solidarity to human rights as principles to guide the IHR, requiring that IHR implementation “shall be with full respect for the dignity, human rights and fundamental freedoms of persons, and shall promote equity and solidarity” (Article 3.1); and (2) adding several articles that bring equitable access to “relevant health products” into the scope of the IHR (Article 13, emphasis added). These novel additions to the IHR fundamentally reshape this instrument, even as their legal definition and operational force remain uncertain.Footnote ¹⁸ For example, equity as a principle in the IHR is not defined, so that the intended meaning must be inferred from its frequent deployment in relation to “equitable access” to “relevant health products.”

Equity in the 2025 Pandemic Agreement

A similar trend is apparent in the Pandemic Agreement adopted after four years of negotiations that began in November 2021 when the WHA established an Intergovernmental Negotiating Body (INB) to draft a new “convention, agreement or other international instrument on pandemic preparedness and response.”Footnote ¹⁹ Between 2021–2025, states worked through six working drafts of this treaty, adopting a largely finalized text at the May 2025 WHA.Footnote ²⁰

Mentions of equity and equitable access to health products show up throughout the Pandemic Agreement. First, equity is a guiding principle of the Agreement’s objective of preventing, preparing, and responding to pandemics: For example, Article 2.1 states the that the treaty’s objective “guided by equity and the principles further set forth herein, is to prevent, prepare for and respond to pandemics.” Second, equity is articulated and defined as a principle to achieve its objectives and implement its provisions: for example, Article 3 states that state parties will be guided by a range of principles including sovereignty, human rights, humanitarian law, equity, solidarity, science, and evidence. Here, equity is defined as “the goal, principle and outcome of pandemic prevention, preparedness and response, striving in this context for the absence of unfair, avoidable or remediable differences among and between individuals, communities and countries” (Article 3.4).

Third, equitable access to pandemic health products and benefit sharing appears throughout the operational chapter of the Pandemic Agreement, with seven of fifteen articles focused on these topics. These articles include measures addressing research and development, equitable geographic production, technology transfer, a pathogen access and benefit sharing system (PABS), supply chain and logistics, national procurement and distribution, and regulatory strengthening (Articles 9–14). The PABS system is a highly contentious aspect of the agreement that will be negotiated and finalized in an annex to the agreement over the coming year. Indeed, the final adoption of the Pandemic Agreement hinges on successful conclusion of the PABS.

What Are the Implications of this Shift for Coherence and Human Rights?

These moves toward equity appear to have first emerged during IHR reforms from the Africa Group (a collective of forty-seven African states), which were later adopted by the IHR Review Committee.Footnote ²¹ In Pandemic Agreement negotiations, the Africa Group’s calls were adopted by the Group for Equity (twenty-one countries across Africa, Asia, and Latin America),Footnote ²² and then later by most negotiating states. These origins and the focus in both instruments on equitable access to health products imply that equity emerged from low and middle-income country desires for fairer rules for global pandemic governance given unfair global distributions of COVID-19 vaccines. Certainly, the turn to equity in these instruments cannot be disconnected from calls for an equitable New International Economic Order in the 1960s, to the emergence of health equity in the 1978 Declaration of Alama Ata, and to contemporary discourse around “global health equity.”

Yet it is less clear why states chose equity over human rights in these instruments. On the one hand, the shift to equity may reflect a direct response to unfair global distributions of vaccines during COVID-19 and the desire for greater justice and fairness in global governance of future pandemics. In this view, states may be adopting equity because it can achieve outcomes for states that human rights cannot: Equity bypasses the baggage of human rights as Western, colonial, and lacking universality, it bypasses often weak legal mechanisms, rules, and actors of human rights, and it bypasses the larger political momentum against human rights, international law, and democracy. The shift to equity may thus enable political unification around a singular idea of fairness and justice, even for those who oppose human rights, even as the concept tracks human rights concepts of fairness, justice, and universality. In this view, equity may operate as a trojan horse that sneaks in human rights norms and ideas into novel international laws in more politically palatable forms.

Yet equally, the move to equity could be a cynical ploy to ensure that pandemic governance instruments are disconnected from human rights more broadly. Consider India’s proposal during IHR reforms to replace its human rights language in totality with equity.Footnote ²³ While human rights remain interpretive principles in both instruments, the threat is that rather than working together as synergistic legal principles and approaches, equity will instead bypass and diminish human rights. This threat is amplified given equity’s disconnection in both instruments from clearly relevant international law standards on human rights, the relative conceptual emptiness of equity in these instruments, and larger moves against human rights, international law, and multilateralism.