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14 Sep 2020

Elizabeth Mangenje,
Timothy Fish Hodgson, OpinioJuris

Commentary: A binding treaty on business & human rights could ensure greater respect of the right to health by private actors in the health sector

"BHR Symposium: Corporate Accountability, COVID-19 and the Right to Health", 9 September 2020.

...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...

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...

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 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...