This blog post was first published in Opino Juris. You may read the original article here.

By Elizabeth Mangenje and Timothy Fish Hodgson

The newest draft of the “Legally Binding Instrument to Regulate, in International Human Rights Law, the Activities of Transnational Corporations and Other Business Enterprises” was published in the middle of the COVID-19 pandemic, a public health emergency which has had extensive impacts on human rights globally.

In the context of the right to health, while States have the obligation to ensure provision of the highest attainable standard of health care, private health care actors often participate in the provision of health facilities, goods and services including those necessary to respond to and treat COVID-19. As is detailed in the ICJ’s recent report on the right to health during COVID-19, when private actors participate in the provision of COVID-19 related healthcare there is a well-documented risk that their actions may also obstruct or undermine the enjoyment of the right to health. In such cases, they should be accountable for their conduct if it causes or contributes to abuse of the right to health.

A legally binding treaty on business and human rights could ensure greater respect of the right to health by private actors in the health sector, including during pandemics such as COVID-19. Some examples of abuses and violations of the right to health resulting from the actions and omissions of State and non-State actors during the COVID-19 pandemic illustrate this point.

Private actors and the Right to Health during the COVID-19 Pandemic

The COVID-19 pandemic has laid bare the fundamental inequalities in divided healthcare systems around the world. It is too often the case that healthcare systems can be divided, with some accuracy, into two: 1) a relatively well-resourced private healthcare system which provides services to the wealthy minority; and 2) an underfunded and under-resourced public healthcare system which services the majority. As CESCR notes in its statement on COVID-19 the pandemic “is threatening to overwhelm public health-care systems” which have been “weakened by decades of underinvestment in public health services and other social programmes”.

Given the state of public health systems many have sought – and been denied – COVID-19 services at private health institutions. In Zimbabwe, for example, where the public healthcare system is “teetering on the brink of breakdown”, a patient in need of emergency care after a car accident was reportedly turned away from a number of public and private hospitals “without explanation”. Another terminally ill woman was refused access to a private hospital because of her inability to pay for a specific COVID-19 test that costs $65 at a private laboratory.

In addition to extremely high costs for treatment and care in countries such as the United States of America, items needed for COVID-19 prevention, including Personal Protective Equipment (PPE), have often been sold for exploitative amounts, sometimes in contravention of specific legal provisions. In South Africa, for example, a major pharmaceutical retailer was found guilty by the Competition Tribunal of “excessive pricing” in violation of competition law regulations for selling face masks at a markup of up to 261%, and the Competition Commission has been bombarded with complaints relating to pricing during lockdown many of which have related to gloves, masks and sanitizer.

Further deepening the problems relating to the accessibility of PPE in particular, corruption involving procurement contracts between governments and private services providers has been unfortunately common.

In Zimbabwe, Hopewell Chin’ono, a journalist who reported on a corruption in the procurement of over $60 million dollars’ worth of PPE was arrested and charged with “incitement to participate in public violence” and accused of trying to overthrow the government.

In South Africa’s Gauteng province alone, more than 100 hundred companies are being investigated by the Special Investigations Unit for participation in allegedly corrupt procurement tenders relating to COVID-19, including irregular contracts relating to PPE.

States’ Duty to Protect: Policing Private Health

States must take the necessary measures, including regulatory measures, to comply with their obligation to protect the right to health which in terms of Article 12 of ICESCR explicitly includes a right to the “prevention, treatment and control of epidemic, endemic, occupational and other diseases”. As CESCR noted in its statement on COVID-19, States must “adopt appropriate regulatory measures to ensure that healthcare resources in both the public and the private sectors are mobilized and shared among the whole population to ensure a comprehensive, coordinated health-care response to the crisis.”

Importantly in the context of COVID-19, CESCR’s General Comment 24 explains that in terms of the right to health: “private health-care providers should be prohibited from denying access to affordable and adequate services, treatments or information”. This requires proactive State regulation and monitoring. Where States fail to put in place mechanisms to ensure private actors respect human rights, they made be held liable for the actions of the private actors.

Moreover, as General Comment 24 and the UNGPs on Business and Human Rights already clarify, even where States fail to take such action,
private health actors are not absolved from liability where their actions result in human rights abuses. This is so because private actors in the healthcare sector, like all other non-State actors, have an independent responsibility to respect human rights including the right to health.

The Revised Draft Treaty: How it would help secure access to justice

The revised draft treaty clarifies businesses’ responsibility to respect human rights. This responsibility requires private actors in the health sector to take both preventive and remedial action to ensure the right to health is respected. An appropriate and human rights compliant approach by private health actors to COVID-19 therefore entails, amongst other things, measures to secure fair and reasonable pricing of healthcare goods, services and facilities including PPE. It would also require abstaining from participation in unlawful or corrupt procurement processes.

The wide scope of the revised draft as detailed in Article 3, indicates that the treaty will apply to “all business enterprises”. This would assist in ensuring accountability for even the “smallest” private participants in the health care sector, where they refuse access to treatment and testing in emergency cases or charge exorbitant and restrictive costs for care or PPE. In the South African context where even “mom-and-pop pharmacies”, for example, have been found guilty of COVID-19 excessive pricing this broad definition proves its value.

The revised draft also offers various mechanisms of protection for “victims” (appropriately broadly defined) which allow a fighting chance of accessing justice against big and inordinately well-resourced private health care actors. The specific provision for “class actions” under Article 4(2)(d) would allow economically disadvantaged victims to pool resources for potential litigation and advocacy.

The revised draft also acknowledges and protects against “intimidation”, “retaliation” and “revictimization” in Article 4(2)(e) by placing an obligation on States to shield victims. This will also assist in encouraging whistleblowing and empowering victims to come forward in cases of impropriety and human rights abuses. This may, for example, assist Hopewell Chin’ono and other prospective whistle-blowers in Zimbabwe.

Furthermore, and more generally, the guarantee in Article 4(2)(g) of “access to appropriate diplomatic and consular means to facilitate access to effective remedy” in the context of abuses “of a?transnational character” would be particularly useful in allowing victims to seek remedies against private health actors registered, domiciled or operating outside of the jurisdiction in which the abuses occurred. During the COVID-19 pandemic, procurement of required PPEs has often involved transnational corporations. Where the procurement involves corruption, which results in violations or abuses of the right to health, provisions giving effect to Article 4(2)(g) in national laws would be useful in bringing accountability.

The Revised Draft Treaty: obstructions to access to justice

The draft treaty sensibly requires “mutual legal assistance and international legal cooperation”. Without such assistance and cooperation many attempts to ensure accountability through judicial mechanisms will be undermined. Such assistance would be highly desirable, for example, in corruption cases involving transnational corporations.

However, unfortunately, Article 12(10) (b) of the draft worryingly allows States to refuse such assistance “if it is contrary to the legal system of the requested State Party”. This article creates a loophole which gives room to States to opt out of providing assistance without which victims of corporate human rights abuses, particularly those perpetrated by transnational companies, may be unable to access justice. Additionally, this goes against a well-accepted rule of international law which that a State “may not invoke the provisions of its internal law as justification for its failure to perform a treaty”.

Furthermore, as exemplified in the cases above, the COVID-19 pandemic has explicitly revealed the direct link between corruption and human rights. In so doing, it draws attention to a major weakness of the current revised draft which excludes specific reference to or detailed provisions on corruption.

Though Article 6(7) implicitly refers to a form of corruption by placing a duty on States to implement the treaty without “influence of commercial and other vested interests of business enterprises”, this provision lacks sufficient clarity and precision to guide States through the muck and mire of ubiquitous corruption. This is a particular problem for states who are less well resourced.  As the former UN Secretary General Kofi Annan noted corruption “hurts the poor disproportionately by diverting funds intended for development, undermining a government’s ability to provide basic services, feeding inequality and injustice…”.

A more realistic provision, acknowledging the commonality of corruption and the depth and variety of forms it presents in, is needed. This will be important if the treaty is to contribute towards effectively ensuring that corrupt and otherwise unlawful procurements are prevented and/or remedied.

An opportunity to close regulatory gaps

In the context of COVID-19, States and private actors in the health sector must cooperate in order  to put into place mechanisms and responses and ensure, as the WHO has indicated, “care-seekers experience no material difference in terms of access or quality of services in public and private sector settings while being tested and treated for essential services during the COVID-19 outbreak”.

Despite this clear guidance and the existing obligations on States and responsibilities of private actors, COVID-19 has exposed regulatory gaps relating to the conduct of private actors in the health sector globally. Laws, policies and other interventions, including the much-needed binding treaty on business and human rights, should be shaped in a manner that contributes toward closing these gaps. The revised treaty must be further developed to ensure the full and meaningful realization of the right to health during and after the COVID-19 pandemic.

Elizabeth Mangenje has a Bachelor of Laws (Hons) from the University of Zimbabwe. She was awarded the prestigious Chevening scholarship in 2016 and went on to study for a masters in the United Kingdom. She holds a Masters of law in International Human Rights Law (Economic Relations), from the University of Essex (2017, with Distinction). Before joining the International Commission of Jurists as Legal Adviser in July 2018, Elizabeth was a project lawyer at Zimbabwe Lawyers for Human Rights. She has also worked as a legal researcher for various independent legal and political consultants. Her current area of specialty is Business and Human Rights. Twitter @Liznaomi2.

Timothy Fish Hodgson joined the ICJ in October 2017. He is responsible for designing and implementing ICJ’s work around Economic, Social and Cultural rights in Africa and assists with ICJ’s global work on ESC rights. Before joining the ICJ, he worked as a Senior Researcher at the Socio-Economic Rights Institute (2016-17); as a Legal Researcher at SECTION27 (2013-16); and as a law clerk for Justice Zakeria Yacoob at the Constitutional Court of South Africa (2011-12). Twitter: @TimFish42.