HealthLawProf Blog

Editor: Katharine Van Tassel
Case Western Reserve University School of Law

Monday, August 15, 2022

Better Safe than Sorry: Human Rights Obligations for the Prevention of Pandemics

Laura Tribess (University of Freiburg), Eva-Maria Böning (Albert-Ludwigs University of Freiburg), Better Safe than Sorry: Human Rights Obligations for the Prevention of Pandemics, SSRN (2022):

For more than two years, the Covid-19 pandemic has had the world firmly in its grip. Although its origins remain unclear, the scenarios currently discussed have one thing in common: the pandemic can be traced back to human activities posing a health risk. In view of the threat of future pandemics, the question arises in which way States are obliged to prevent the occurrence of a pandemic, in particular by regulating private action. This question will be analysed from a human rights perspective with a special focus on the right to health as enshrined in Article 12 of the International Covenant on Economic, Social and Cultural Rights [ICESCR]. It is generally recognised that Article 12 entails a duty to protect. This duty is not limited to preparing for the event of a pandemic by providing medical care, but also requires mitigating or avoiding risks that could lead to the emergence of a pandemic. Special difficulties regarding the content of this duty to protect arise when the probability of health damages cannot be clearly determined due to scientific uncertainty. According to our view, the right to health has to be interpreted in the light of a precautionary approach. It follows that scientific uncertainty does not justify the omission of State regulation if there is a risk of potentially irreversible health damages. At the same time, due to the high threshold for the application of the precautionary approach, this approach allows to adequately take into account other relevant human rights.

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