Questions of equity have been centre-stage in discussions around how we might better respond to future pandemic disease events. In the aftermath of significant global inequalities during the COVID-19 pandemic around issues such as vaccine access, Member States of the World Health Organisation (WHO) have been negotiating on an international legal instrument – the Pandemic Treaty, with equity as an underpinning principle and expected output. However, what does equity demand in this context? What can we learn – if anything – from how other areas of law approach equity, with a view to helping to flesh out how equity can best be operationalised within the Pandemic Treaty? This blog post shares some key reflections from two events organised by Hub researcher Stephanie Switzer with Mark Eccleston-Turner (King’s College, London), together with experts from within and outside the Hub, to complement previous contributions to these international negotiations arising from transferable Hub research findings. 

Different disciplinary perspectives on equity in law 

Stephanie Switzer, together with Mark Eccleston-Turner (King’s College, London), received funding from the Scottish Council for Global Affairs to host a workshop in March 2023 at which experts from different disciplinary areas with a view to understanding and conceptualise equity as a legal concept, charting its history, development and application within both domestic and international law. The result of this workshop was a policy brief aimed at negotiators to the Pandemic Treaty that underscored that equity:  

• is multidimensional and contextual; 
• is tied to notions of fairness when resources or property need to be shared;  
• is linked to questions of justice as well as differentiated obligations; 
• is closely tied to the idea that there are inequalities in power dynamics and the notion that strict equality – whereby every party owes the same obligations – is not the same as equity; 
• is linked to notions of taking account of vulnerability and disadvantage, with legal obligations tempered by such concerns; and 

• requires partnership and good faith engagement between actors.  

In the policy brief – co-authored by all participants at the workshop – we advised negotiators to the Pandemic Treaty to: 

• require differentiated obligations, recognising different capacities and the need for technical assistance of different countries; 

• Undertake a thorough examination of the root causes of the present inequalities that have been exacerbated by previous outbreaks, including (but not limited to) COVID-19; 
• Ensure agency on all sides; equity cannot be achieved via ad hoc charitable donations or ‘gifts’, whereby the donor provides aid on their terms, without consideration of the recipient’s needs. To this end, equity cannot be achieved in the presence of oppressive or overreaching transactional bargaining arising from a difference in power relations and resources between the parties. Indeed, equity cannot be bought, nor can it be traded; 
• Support equity in a spirit of true partnership, as well as good faith engagement. This means that how we understand equity cannot be determined or defined by one or a small number of dominant parties, so the process must also be equitable: this obviously has relevance to the negotiating procedure applicable to the Treaty and to the future institutions that will be created by the Treaty.  

Zooming in on the equity issues in the pandemic treaty  

Stephanie Switzer and Mark Eccleston-Turner received further funding from the Royal Society of Edinburgh, to host a workshop at the British Institute of International and Comparative Law (BIICL) on the ‘search for equity under the Pandemic Treaty’ on 19 July 2023. The event saw contributions from Hub Director, Prof Elisa Morgera, Gian Luca Burci (former legal counsel to the World Health Organisation), Michelle Rourke (Griffith University) as well as from John Harrington (Cardiff University), to explore a number of issues relevant to equity within the Pandemic Treaty; namely, 

1. What does equity mean in international law terms?

2. Why was equity so lacking during the COVID-19 public health emergency? What went wrong?

3. How is equity defined and operationalised in the latest draft of the pandemic treaty?

4. How just and fit for purpose is the current proposal to ensure equitable distribution of vaccines via an ‘access and benefit-sharing’ mechanism, whereby developing countries exchange access to their pathogen samples for benefits such as essential vaccines?

5. How else could/should equity be embedded into the treaty? What lessons can we learn from other areas of international law?

The resulting key messages to WHO negotiators include: 

• Fair and equitable sharing of benefits is a principle of international law, and one potentially relevant to the Pandemic Treaty negotiations. Fair and equitable sharing of benefits cannot be achieved in the absence of trust, dialogue, and partnership with beneficiaries. The challenges and transformative opportunities of fair and equitable  benefit-sharing have already been explored in Hub research in relation to Global North-South relations in ocean science and marine bio-discovery (including for health-related and pandemic-related purposes).  
• A focus on defining fairness and equity in the context of an infectious disease emergency has both procedural and substantive dimensions. The different dimensions of justice, from a global South perspective, has also featured in Hub research related to ocean plastics.  
• The legally binding human right to science (Article 15 ICESCR) is relevant for the Pandemic Treaty negotiations. It requires acknowledgement of the power dynamics in science, the obligation for States to regulate scientific endeavours to prioritise the needs of the vulnerable, as well as the need to affirm the agency of beneficiaries. The importance of this human right has already been explored in Hub research in relation to the international agreement on marine biodiversity of areas beyond national jurisdiction.  

Additional resources 

• Report and video-recording of the Pandemic Treaty event at the British Institute of International and Comparative Law Read here

• Stephanie’s  further reflections on the July workshop at the British Institute of International and Comparative Law:  Read here

• Geneva Graduate Institute website tracking the WHO negotiations: Read here

• Elisa’s recommendations to the WHO negotiators as part of the Geneva Graduate Institute brief “Averting a collision course?: beyond the pandemic instrument and the international health regulations” (2023) : Read here

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