By Dr. Elisavet Athanasia Alexiadou, Post-doc Researcher at Law Faculty AUTH*, Email: ea.alexiadou@gmail.com

Introduction

Since the onset of this unprecedented global public health crisis owed to the Covid-19 outbreak and its rapid global spread, serious concerns have been voiced regarding the limited role that transparency is playing in global health governance and particularly in ensuring the right to health (care) for all during the Covid-19 pandemic. Crucially, in times of public health emergencies a significant transparency gap tends to exist in the governance framework. This gap ranges from the implementation of weak public procurement systems (being often attributable to the state of emergency) to the inadequate or incomplete data collection regarding, inter alia, the number of infections, mortality rates. For example, in Italy the immediate situation due to the Covid-19 spread resulted in the simplification of procurement rules for the rapid purchase of medical masks, while in Tanzania there is suspicion of failure to report the exact number of Covid-19 deaths as well as to raise public awareness about the real extent of the public health crisis in the country. However, this gap potentially undermines the effectiveness of outbreak responses by failing to provide benefits to all people, especially those most in need and as such it poses considerable risks to the life and health of individuals and groups. Hence, this alarming development raises a critical question: what can transparency bring to the response to the Covid-19 crisis?

Transparency as both guiding principle and an operational priority

Admittedly, during public health emergencies transparency between states and international organizations, primarily the World Health Organization (WHO), aims at launching effective joint actions for combating the spread of misinformation through open international public health communication efforts; for building robust support to effectively address the crisis and for helping forge targeted and common solutions towards achieving optimum health outcomes for all worldwide. At the same time, transparency within countries, primarily between a government and the general population by attention to the most vulnerable, constitute the means to counter the potential spread of public distrust. In addition, transparency combats the misuse of funds and the ineffective resource allocation, curtails wasteful health spending and raises public awareness of the emergency situation in a way that will create collaborative response. Ultimately, transparency enables the implementation of targeted policies towards maximizing the health benefits for the whole society. Importantly, it is widely acknowledged that transparency is a fundamental component to applying human rights to health given that transparency helps to ensure that (financial and human) resources primarily benefit those who need it the most and to hold accountable all actors involved, while avoiding misallocation and corruption.

Undoubtedly, realizing the full potential of transparency in times of public health emergencies is especially challenging. Thereto, in such circumstances transparency initiatives must be targeted in order to promptly achieve their intended effect, the benefit of the whole society. At a practical level, this requires increased procurement transparency as regards to the public procurement of goods and services for public health crisis management. To this end, it is crucial that reliable data and procurement details (i.e., disclosure of procurement contracts) should be systematically collected and published at all stages of the process for ensuring the adequate evaluation of the equipment and other equipment for intensive care.

At the United Nations level, the UN Convention against Corruption (UNCAC) is particularly relevant in this context. With respect to public procurement, article 9 (1) of the UNCAC explicitly mandates states parties to ‘..take the necessary steps to establish appropriate systems of procurement, based on transparency, competition and objective criteria in decision-making..’. At the regional level, namely at the Council of Europe level, this issue is also implicitly the subject of consideration in the Criminal Law and Civil Law Conventions on Corruption. These conventions both require states to develop and implement effective measures to tackle corruption. Additionally, at European level, the Directive 2014/24/EU(which repealed Directive 2004/18/EC) on public procurement provides a framework on procurement procedures concerning public contracts as well as the designing of contests, in which transparency is integrated as guiding principle and as an operational priority. Meanwhile, at the domestic level, for instance, amidst the economic crisis in Greece a special Commission, namely the Procurement Coordination Commission, was established under the auspices of the Greek Ministry of Health. The commission aims to enhance public procurement transparency in healthcare settings through the monitoring of the prices and public access to procurement bidding results (http://www.et.gr/idocs-nph/search/pdfViewerForm.html?args=5C7QrtC22wFYAFdDx4L2G3dtvSoClrL8jAxhWxkwjzrtIl9LGdkF53UIxsx942CdyqxSQYNuqAGCF0IfB9HI6qSYtMQEkEHLwnFqmgJSA5WIsluV-nRwO1oKqSe4BlOTSpEWYhszF8P8UqWb_zFijNiYcEPY2GQzo6BQwCnztrUiEpdJhR8ugOWeJrM-rajx) Law 3918/2011, Article 6). Last but not least, in the context of the Covid-19 crisis the European Commission went a step further and provided guidance on using the public procurement framework in this emergency situation in order to enable expeditious and efficient purchases of essential medical goods and services to effectively address this health emergency.

At the same time, transparency initiatives must involve prompt information sharing and public awareness-raising about the risks and spread of a public health crisis, like the Covid-19 pandemic. In this regard, the International Health Regulations (2005, IHR) call Member States to provide timely and reliable information to the World Health Organization (WHO) in case of a public health emergency of international concern. Nevertheless, it is argued that the adverse economic repercussions of prompt reporting pursuant to the IHR erode any political commitment to transparency. Following that, the weak transparency framing during public health emergencies deployed under the IHR constitutes a serious area of human rights concern in that such framing tends to cause a regression in the realization of health rights and ultimately jeopardizes human lives.

Notably, in its General Comment No. 14 the UN Committee on Economic, Social and Cultural Rights (CESCR), the oversight body for the International Covenant on Economic, Social and Cultural Rights (ICESCR), has particularly emphasized ‘the right to seek, receive and impart information and ideas concerning health issues’ in terms of information accessibility, an essential element of the AAAQ framework of the human right to health. Interestingly, by way of example, in Greece, since the Covid-19 outbreak a comprehensive daily bulletin is issued by the National Public Health Organization (abbreviated in greek as EODY, former HCDCP). This includes key figures on the number of people who are tested positive, are hospitalized and die of Covid-19.

Conclusion – the way forward

All in all, we should remain mindful that an emergency situation due to extraordinary outbreaks, like the Covid-19 pandemic that poses a global and an immediate public health risk, cannot be used as carte blanche by state or/and non-state actors to do as they please. Essentially, it must be conceded that public health emergencies cannot serve as a pretext for avoiding transparency and entrenching unethical practices in public health governance – people matter.