On 1 December 2021, the World Health Organization (“WHO”) established an intergovernmental negotiating body to draft and negotiate a new international treaty to respond to future pandemics.
Since the early days of the COVID-19 pandemic, Volterra Fietta has been advocating the creation of a global, multilateral treaty to facilitate effective global responses to future pandemics. From as early as April 2020, the firm has been publicly urging such a development (for example, see here, here, here, here, here, here, here and here).
Between 29 November and 1 December 2021, The WHO’s World Health Assembly (the “WHO Assembly”) met in a special session – the second ever since the WHO’s founding – to discuss the development of an international instrument on pandemic preparedness and response. On the last day of the session, the WHO Assembly established an intergovernmental negotiation body (“INB”) mandated to draft and negotiate such an international instrument.
The WHO Assembly’s decision to establish the INB follows on from the recent report of the WHO’s Working Group on Strengthening WHO Preparedness and Response to Health Emergencies (the “WHO Working Group Report”), which recommended the establishment of the INB.
The WHO Assembly is the decision-making body of WHO. There are three options for the WHO Assembly to create a new international instrument. First, it is authorised to adopt a treaty on any matter within the competence of the WHO under Article 19 of the Constitution of the WHO. This requires that two-thirds of the WHO Member States gathered in the WHO Assembly vote in favour of adopting such a treaty. Subsequently, that treaty will only enter into force for a Member State when accepted by it in accordance with its constitutional processes. It would thus only be binding on the WHO Member States that opt to ratify it. The WHO Assembly has used this power to adopt a treaty only once before, in creating the WHO Framework Convention on Tobacco Control. Second and third, the WHO Assembly may adopt regulations or it can make non-binding recommendations under, respectively, Article 21 and Article 23 of the Constitution of the WHO.
Lessons from history
States have long recognised that pandemics require inter-State cooperation and multilateral treaties. As early as the 19th century, States began formally to coordinate responses to global diseases. The first International Sanitary Conference was held in Paris in 1851. 41 years and seven International Sanitary Conferences later, participating States agreed on the first International Sanitary Convention (the “ISC”) in 1892, to counter the fifth cholera pandemic of the 19th century. This first ISC was shortly followed by two more conventions on cholera (Dresden, 1893; Paris, 1894) and a fourth convention related to the plague (Venice, 1897). Eventually, these conventions were consolidated into the 1903 ISC, where member States also agreed on the creation of a permanent international health bureau. The 1903 ISC was replaced by new ISCs in 1912 and 1926, with the addition of the yellow fever and then of the epidemic typhus and smallpox to the so-called “Convention diseases”.
Further changes were made to the ISC in 1933 and 1944. The 1933 International Sanitary Convention for Aerial Navigation (the “ISCAN”) supplemented this ISC with specific provisions on the prevention of spread of the five “Convention diseases” in and from aircrafts. In 1944, the United Nations Relief and Rehabilitation Administration (the “UNRRA”) amended the 1926 ISC and 1933 ISCAN to meet emergency conditions arising out of the war and the fear of spread of infectious diseases in liberated territories. Under the amended 1944 ISCs, the information-sharing obligations of member States were extended to any “disease which, in the opinion of UNRRA, constitutes a menace to other countries”.
This global multilateral treaty approach to prevent and responded to new diseases was forgotten in the post-World War II era because of the creation of the WHO in 1948 and the various instruments adopted under its umbrella, including: (i) the 1951 International Sanitary Regulations, which replaced the 1944 ISCs; (ii) the 1952 Global Influenza Surveillance and Response System, to monitor the evolution of influenza viruses through the sharing of laboratory surveillance data worldwide; (iii) the 1999 Influenza Pandemic Plan, “to assist medical and public health leaders to better respond to future threats of pandemic influenza”; and, importantly (iv) the WHO’s International Health Regulations (the “IHRs”), first adopted in 1969 and last updated in 2005.
The IHRs are most relevant and recent version global health agreements. The IHRs seek to protect against the “international spread of disease” in ways that avoid unnecessary interference with international traffic and trade. They require virtually all States in the world to cooperate with each other, including by timely reporting “public health emergencies of international concern” and by strengthening their national preparedness and response systems.
However, to date, the IHRs have failed to ensure the kind of global cooperation and coordination required to confront the COVID-19 pandemic. As such, the COVID-19 pandemic has confirmed the need to return to the multilateral treaty approach as a useful tool of facilitated and directed global cooperation.
A new treaty to respond to future pandemics
A new treaty to coordinate international responses to pandemics is required to address the gaps in the current international framework for health emergencies in the form of the IHRs.
The IHR’s are not designed to ensure the kind of legally binding global cooperation and coordination required to control and confront global pandemics. As Robert Volterra argued in The Times, the WHO’s IHR do not create sufficiently enforceable obligations and lack effective mechanisms to hold States accountable, which led to the lack of cooperation during the COVID-19 pandemic. Consistent with Volterra Fietta’s findings, the WHO Working Group Report concluded that the IHRs do not address several key aspects of health emergency preparedness and response.
From the beginnings of the COVID-19 pandemic, Volterra Fietta has suggested that States therefore should adopt a new treaty to respond to future pandemics (see here and here). As written up in The Times, such a treaty should reference science-based standards and interpretations. It should enforce obligations to cooperate via binding mechanisms to settle disputes concerning the interpretation or application of global public health measures and the implementation of this treaty should involve binding third-party monitoring. More specifically, this treaty should also: (i) provide for obligatory early-stage reporting and information sharing; (ii) ensure access to medical equipment and prohibit hoarding; (iii) require long-term, closely-monitored preparedness; and (iv) address intellectual property concerns to facilitate rapid vaccine production.
The benefits of such a new treaty to respond to future pandemics would be significant. As previously explained by Volterra Fietta (see here), it could foster international solidarity, influenced by enlightened self-interest, which acknowledges that developed States are neighbours with less developed States from which unsuppressed pandemics could arrive. An additional benefit according to the WHO Working Group Report is that a new instrument could enhance the leading and coordinating role of WHO in international health work, including in improving engagement with civil society and the private sector.
One of the risks of launching a process to develop a new instrument to address pandemic preparedness and response highlighted by the WHO Working Group Report is the potential for lengthy time frames for negotiating new instruments or deadlock due to negotiation, as well as insufficient resource and time commitments resulting from intergovernmental negotiations.
The INB shall first meet on 1 March 2022, at the latest, to discuss its working method and timelines. Those methods shall include public hearings to inform its deliberations. The INB shall then meet again on 1 August 2022 to discuss a working draft of the proposed new international instrument. The INB shall then deliver a progress report to the 76th WHO Assembly in 2023 and submit the final outcome to the 77th WHO Assembly in 2024.