“Unhindered” Access in Global Health Negotiations: Navigating the Intersection of Sanctions and Humanitarian Imperatives
Newsletter Edition #114 [Treaty Talks]
Hi,
Like life, in law, sometimes, a lot hinges on a single word. And yet of course, there is much more to it than the word itself.
In today’s edition, we examine the word “Unhindered” access in the context of ensuring that medical services, products reach vulnerable populations in conflict settings, sanctioned countries during health emergencies. This has divided countries, like few other contentious issues in the Pandemic Agreement. And it will not go away.
An estimated 300 million people are affected globally by sanctions, diplomats tell us.
As WHO member states gather next week once again to resume negotiations towards a Pandemic Agreement, this and other issues will come to the forefront.
My colleague Nishant presents an overview of the evolution of the challenge to hindered access. We also supplement this with what negotiators share with us on this very sensitive and crucial matter.
This brings attention to the forgotten populations in vulnerable settings all over the world, who do not dominate policy discussions as much as they should, in the sterilized spaces of global health Geneva.
Thank you for reading.
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Priti
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I. GHF ANALYSIS
“Unhindered” Access in Global Health Negotiations: Navigating the Intersection of Sanctions and Humanitarian Imperatives
By Nishant Sirohi & Priti Patnaik
WHO member states remain painfully divided on whether vulnerable populations in humanitarian settings, and in sanctioned countries should have “unhindered” access to medical services and products during health emergencies and pandemics.
The draft text of the Pandemic Agreement references the term “unhindered”, which is a continues to be a major flashpoint in the negotiations.
While the debate around “unhindered” has long occupied negotiators over the years across policy forums in Geneva and in New York, in the context of a new Pandemic Agreement, this discussion is reaching a crucial juncture, potentially also poised for an eventual trade-off with other competing interests in the negotiations.
At the heart of the debate lies a critical question: Should sanctions-hit countries be guaranteed access to medical products during public health emergencies? As the world grapples with increasingly frequent and severe health crises, this debate underscores the complex interplay between public health, international law, and global politics. While the term ‘unhindered access’ seeks to uphold the universal humanitarian goal of equitable medical supply distribution, its intersection with geopolitics – particularly Unilateral Coercive Measures (UCMs) – has turned this universal humanitarian imperative into a contentious point of negotiation.
Negotiators say, that the impact of sanctions on populations is significant and widespread: more than one in four countries are subject to sanctions by the UN or Western governments. Currently, 29 percent of global GDP is produced in sanctioned countries, up from only 4 percent in the 1960s. Sanctions have been imposed on 98 less- and least-developed countries, affecting millions of people in these nations. Entire regions have been impacted, including Africa, the Arab world, the Caribbean, parts of Asia, and some of Latin America. With over 300 million people affected globally by sanctions, it is clear that their reach impacts hundreds of millions, with particularly severe consequences for populations in developing countries and vulnerable groups within those societies.
In this story, we first examine the historical context, and then look at the state of play around this discussion in the Pandemic Agreement.
PART A
THE HISTORICAL CONTEXT AND THE EVOLUTION
1. UCMs and Health Emergencies
UCMs, such as economic sanctions, aim to exert political pressure. Often used as tools of diplomacy, their ripple effects frequently extend far beyond their intended targets, impeding the delivery of critical medical supplies to sanctions-hit countries during health emergencies like pandemic outbreaks and natural disasters.
For instance, during the COVID-19 pandemic, countries under sanction, such as Cuba, Iran and Venezuela, faced significant delays in accessing vaccines, ventilators, and other life-saving resources. Similarly, prolonged sanctions on Syria have weakened its healthcare system, making it ill-equipped to handle recurrent cholera outbreaks. The severe impact of economic sanctions on health and human rights in Haiti provides another stark evidence.
With approximately 20% of UN member states affected by unilateral sanctions, these measures disproportionately harm vulnerable populations in targeted countries, exacerbating their suffering and highlighting stark inequalities.
For sanctions-hit countries, the reference to “unhindered” in the draft text of the Pandemic Agreement signifies a lifeline – an urgent plea to carve out exceptions that ensure lifesaving medical supplies can reach their populations unimpeded, especially during public health emergencies. They contend that humanitarian exemptions, often theoretically included in sanctions, fail in practice due to bureaucratic hurdles, over-compliance by financial institutions, and the chilling effect of penalties. For others, however, the term raises concerns about potential loopholes in sanctions regimes, highlighting the tension between humanitarian imperatives and geopolitical considerations.
2. A Battle Through Time Across Resolutions
UN agencies have not been immune to this geopolitical tug-of-war. Numerous resolutions by the UN General Assembly (2011 and 2012) and the UN Human Rights Council (2010, 2012, 2013, 2015, 2017, 2020, 2021, 2023) addressing the human rights implications of UCMs and particularly underscored the need for "unhindered access" to medical supplies.
The discussions have been arduous, with the proponents of UCMs arguing that such language could weaken the strategic leverage of sanctions. The tension lies between prioritising public health and maintaining geopolitical strategies, a delicate balance many argue tilts too far towards the latter.
The ongoing negotiations for the WHO’s Pandemic Agreement capture this tension, exacerbated in the backdrop of currently unfolding conflicts. The draft Agreement includes provisions for equitable access to medical products; however, the inclusion of the term "unhindered" access has become a sticking point.
UCMs- sanctioning states view it as a potential loophole that could be exploited for non-humanitarian purposes. In contrast, sanction-hit states and developing countries see it as a critical safeguard to ensure access to medical products during pandemics for one of the most vulnerable population groups in the world.
3. Why “unhindered” Matters?
For countries advocating for unhindered access, the stakes are existential.
During health emergencies, delays in medical supplies can lead to preventable deaths, exacerbate public health crises, and strain international relations. These states, mostly sanctions-hit countries, argue that the principle of medical neutrality, enshrined in international humanitarian law (IHL), mandates such access regardless of political considerations.
Conversely, opponents argue that mechanisms already exist to ensure humanitarian exemptions and that the problem lies in their implementation, not in the sanctions themselves. They caution against creating what they see as overly broad carve-outs that could undermine the effectiveness of sanctions. For example, even when exemptions theoretically allow for the delivery of medical goods, bureaucratic hurdles and financial restrictions often impede effective access, as evidenced during the Great Flood in Iran in 2019.
The legal framework of IHL also underscores the obligation to facilitate and protect the delivery of medical supplies, yet its implementation remains inconsistent, particularly in conflict settings. Moreover, in the context of global pandemics like COVID-19, the failure to ensure unhindered medical access represented both a human rights breach and a public health risk, as it disproportionately affects vulnerable populations.
4. Legal Frameworks and Emergency Authorisations
UCMs raise critical concerns across legal, humanitarian, and developmental dimensions. Their extraterritorial impacts and compatibility with international law challenge global commitments to equity, sovereignty, and sustainable development, which are discussed as follows:
i. Legality under International Law and Role of the UN Security Council
UCMs frequently conflict with principles of international law when not authorised by the UN Security Council. These measures often exceed the scope of lawful countermeasures or retortions, raising significant concerns about their legality and alignment with international norms. In cases where the Security Council fails to act, the legitimacy of unilateral sanctions remains highly contested. Critics argue that UCMs erode the multilateral framework and disproportionately harm civilian populations, raising ethical concerns. The absence of UN authorisation highlights ongoing debates about their appropriateness and legal standing.
ii. Extraterritorial Jurisdiction
UCMs also raise concerns regarding their extraterritorial effects and legality under international law when not authorised by the UN Security Council. These measures often extend jurisdiction beyond national boundaries, restricting trade and access to essential medical goods in third-party states and potentially violating jurisdiction and state sovereignty principles. Additionally, UCMs may contravene international norms prohibiting discrimination in healthcare, disproportionately affecting vulnerable populations, including women, children, and marginalised groups, and undermining equity and justice in global health. Their extraterritorial nature raises critical ethical and legal questions about compliance with international norms.
iii. Violation of the Right to Development and Economic Sovereignty
Sanctions, particularly broad measures targeting entire economies, have impeded a state’s right to economic development and violate the principle of sovereign equality under international law. For example, sanctions on Venezuela and Zimbabwe have been criticised for exacerbating economic instability and restricting access to essential goods.
IHR(2005) and “Unhindered”
The WHO's International Health Regulations (IHR 2005) emphasise global cooperation to ensure access to medical goods during health emergencies, but UCMs often conflict with these mandates, challenging the balance between state sovereignty and global health obligations.
Diplomatic sources also told us that while a compromise on “unhindered” was brokered during the negotiations on the amendments to the IHR (2005) in June 2024, some countries have been deeply unhappy about it.
“Since the IHR is of greater relevance to actions taken by WHO, proponent countries were some how persuaded to give into the demand of not referring to “unhindered”, with the promise that a solution will be offered in the Pandemic Agreement on this issue,” a source familiar with both tracks of negotiations explained to us.
IHR (2005) amended and adopted in June 2024 were subsequently notified in September 2024.
(See 13.8 in the amended IHR: “…WHO shall facilitate, and work to remove barriers to, timely and equitable access by States Parties to relevant health products after the determination of and during a public health emergency of international concern, including a pandemic emergency, based on public health risks and needs…” (bold ours)
iv. Humanitarian Impact and International Obligations
UCMs are criticised for impeding access to essential goods such as food and medicine, potentially violating IHL. The Geneva Conventions and its Additional Protocols explicitly mandate unhindered access to humanitarian supplies and medical aid during emergencies. Actions such as UCMs that obstruct the delivery of life-saving products may breach these principles. Although UCM frameworks often include exemptions for medical supplies, over-compliance by financial institutions and logistical hurdles frequently render these provisions ineffective, exacerbating violations of fundamental human rights such as the right to health and food. This highlights the inadequacy of current humanitarian exemption mechanisms.
v. Compatibility with Human Rights Norms
UCMs often infringe on the economic, social, and cultural rights of individuals, disproportionately impacting marginalised populations in sanctioned countries. The right to health, protected under Article 12 of the International Covenant on Economic, Social, and Cultural Rights (ICESCR), obligates states to ensure access to essential medicines and healthcare. UCMs that hinder access to these resources directly challenge this obligation, exacerbating inequities for vulnerable groups such as women, children, and those with chronic illnesses. This raises significant questions about the compatibility of sanctions with international human rights norms.
vi. Principle of Proportionality in Countermeasures
UCMs are frequently criticised for violating the principle of proportionality in countermeasures under international law. Countermeasures must be lawful and proportionate, targeting specific wrongful acts rather than imposing undue harm on civilian populations. However, UCMs often result in widespread economic and humanitarian impacts, disproportionately affecting vulnerable populations while failing to effectively address the alleged violations of international law. This raises serious concerns about their legitimacy as international policy instruments, as disproportionate measures undermine both their effectiveness and compliance with legal norms.
vii. Compliance with WTO Rules
Unilateral sanctions targeting trade and economic activities face scrutiny for potential violations of World Trade Organisation (WTO) rules. While national security exceptions under WTO law are used to justify sanctions, their application is increasingly contested due to ambiguities in scope and intent. The TRIPS Agreement provides critical flexibilities to safeguard public health objectives, and WTO rules allow for the use of “waivers”.
UCMs that limit sanctioned states’ ability to utilise these provisions raise significant concerns about undermining global public health efforts and breaching WTO obligations. This also highlights the conflict between trade restrictions and international health imperatives.
viii. UN Treaty Obligation and Sustainable Development Goals
UCMs often undermine states' capacity to fulfil international treaty obligations and achieve Sustainable Development Goals (SDGs). By restricting access to vital resources for development, UCMs directly conflict with global commitments to health and well-being (SDG 3) and peace, justice, and strong institutions (SDG 16). For instance, sanctions that block access to medicines or economic resources hinder progress toward equitable healthcare and institutional resilience. These measures exacerbate inequalities, contravening the shared international responsibility to foster sustainable development and uphold treaty obligations.
PART B
‘Unhindered’ as Discussed in the INB
The debate over "unhindered access" reflects deeper tensions in the intersection of global health and geopolitics. While the principle may seem straightforward, its application in the shadow of UCMs is unjust, especially in the context of health emergencies and pandemics. As negotiators and diplomats at WHO deliberate on the text of the Pandemic Agreement, they must prioritise the collective interest, solidarity and global cooperation over the pursuit of strategic advantage. The health of millions in sanctioned countries depends on their ability to bridge this divide.
Whether “unhindered” will ultimately feature in the Pandemic Agreement will depend on how far developing countries are willing to fight for those who have borne the brunt of sanctions. Many fear that “unhindered” may eventually be traded off against another objective in these negotiations. So far, big and small developing countries are rallying around sanction-affected populations, but, diplomats fear, this unity may not hold in the final hours of the negotiation.
Proponents arguing for unhindered access argue that this is at the heart of equity - a fundamental principle for the Pandemic Agreement.
“For us, unhindered access is viewed as a component of the principle of Equity. Thus, in a broader context, it is not only applicable to access to health related products& services, but also relevant to the “benefit sharing” pillar of the future PABS system, sustainable finance and of course an inalienable part of Equity principle,” a diplomat from a sanctioned country told us.
Countries disagree on not only whether the word “unhindered” should appear in the text, but also on other related matters including references to vulnerable “persons” or “people”, sources told us.
There seems to be very different understanding of what “unhindered” can come to signify for countries. While some, it means unimpeded, barrier-free access even for vulnerable populations, for others it means opening up the risks of a carve-out from Unilateral Coercive Measures. But negotiators say that unhindered has been negotiated and agreed language in a WHO resolution and hence it should be accepted in a Pandemic Agreement. (Also see: HRC resolution - 49/25. Ensuring equitable, affordable, timely and universal access for all countries to vaccines in response to the coronavirus disease (COVID-19) pandemic.)
Diplomats say, that only the countries keen on holding on to the word “unhindered”, can finally strike a compromise on this matter. “We can support the calls for this language, but we are not in a position to strike a deal or a compromise on behalf of those countries that have strong political reasons to push for ‘unhindered’,” a developing country negotiator told us.
So, while, for some developing countries, it is more important to win the fight on the terms of technology transfer for example, for countries affected by sanctions, the fight on ‘unhindered’ could emerge as the red line, sources say.
“Some significant topics yet to be resolved and there is no reason to give up our position or compromise unhindered access. Recent experience of COVID-19, evidently showed that such a proposal is a legitimate concern for international public health to a considerable number of countries and their public health systems,” a diplomat pushing for unhindered access told us.
There are some gray areas too.
Some countries are also worried about the geopolitical implications of letting a country have access to vulnerable populations in a humanitarian situation, and heighten the risk of external interference on sovereign matters, one developing country negotiator explained to us. “Big powers will never allow access to other countries, but they would become a risk if they intervene in other countries on a humanitarian pretext and stay in the region unconditionally without limitations on time,” the negotiator said.
Bridging The Divide
Many see this as an invaluable opportunity to change the status quo on the ground for vulnerable populations. Some believe that even if the word “unhindered” does not ultimately feature in the Pandemic Agreement, countries should do everything in their power to suggest descriptive text and frame obligations to protect vulnerable populations.
Will this be a priority for countries to speak up and make amends in favor, and secure interests of vulnerable groups during health crises?
References to Unhindered in the draft Pandemic Agreement
Article 13 and 13bis, have references to unhindered and have provisions that will have implications for populations in vulnerable settings. The provisions focus on supply chain and logistics, and procurement and distribution, respectively.
The text below reflects discussions as on November 15, 2024 at the previous meeting of the INB.
See excerpt of statement made by Knowledge Ecology International in September 2024 during the INB:
“With reference to Article 13.4.bis, KEI is concerned that WHO member states have not provided sufficiently workable exceptions to sanctions, and this contributes to appalling barriers to medical supplies in countries facing economic sanctions.
The pandemic agreement should have language that remedies this problem.
In a December 2021 letter to the US Department of Treasury, KEI recommended that a country that uses economic sanctions provide at least five measures to protect access to medical products:
1. Publish a web page that provides in plain language guidance clarifying the scope of sanctions, that can be understood by persons who are not experts on the legal issues.
2. Publish “white lists” for products that are not subject to sanctions.
3. Actively work with trusted organizations and businesses to fast track and facilitate the granting of required permissions.
4. Provide comfort letters that can be used to reassure third parties such as financial institutions that certain activities are not subject to sanctions.
5. Publish best practices for providing drugs, vaccines, and other related products and services within the humanitarian exceptions.”
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