In response to the question: “What substantive elements do you think should be included in a new international instrument on pandemic preparedness and response?”

COVID-19 responses and related governments policies – often overwhelmingly punitive – disproportionately impacted vulnerable, marginalised, and criminalised communities such as people in
detention and people who use drugs. This led to widespread human rights violations, and ineffective pandemic responses.

Learning from the lessons of this pandemic, any new international instrument must be developed in conformity with international human rights law and standards, building upon and enhancing current human rights protections. This requires setting three priorities:

Firstly, incorporating international standards on derogations to human rights in public health emergencies, including principles of legality, necessity, proportionality, non-discrimination. These should apply not only to civil and political rights, but also to social, economic and cultural rights. The new instrument should elaborate on the implications of these principles, particularly on the introduction of criminal sanctions for non-compliance with pandemic response policies, which should be a last resort.

Similarly, the instrument should include express limitations and guidance on the role of law enforcement in pandemic response, building on existing human rights standards, including those of
necessity and of civilian oversight.

Secondly, explicitly acknowledging the communities who should enjoy specific protection in times of emergencies, in account of their heightened vulnerability; this must include marginalised and criminalised populations such as people who use drugs, sex workers, LGBTQI+ individuals, people living with HIV, migrant workers, racial and ethnic minorities. The Alliance for Human Rights in the Pandemic Treaty developed a comprehensive list which we will be happy to share with the INB.

Thirdly, including meaningful community and civil society participation in the design, implementation, and evaluation of pandemic measures as a core substantive element of the instrument; with a focus on affected communities, transparency, and on the essential role of community-led organisations. Meaningful engagement must also be a guiding principle regarding the governance of this new instrument. These public hearings are an initial step, but much more inclusive processes must be envisaged in the text of the instrument for the right to participation to be meaningfully promoted.