Examining the motivations for a pandemic treaty

Newsletter Edition #42 [The Friday Deep Dives]

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Hi,

It is often hard to sift through political considerations from commercial motivations in policy-making. Of course oftentimes, these two different strands of compulsions influence each other. For us, on the street, it does not matter which is what, because ultimately both can have an impact on our lives. In this case, our health and freedoms.

Nevertheless, it is instructive to understand what drives these important policy directions - for the sake of transparency and equity - ideals which have become buzzwords during this pandemic.

We have spent weeks working on today’s story that examines the discussions for a pandemic treaty. In the process of reporting, among other learnings, we have been struck by the power and influence that custodians of knowledge wield in endorsing dominant narratives.

We hope you our analysis useful. (Given the complexity of the issue, this story is longer than usual.)

As usual, a shout out to all those who speak with us, sharing their time, perspectives, and expertise, without which this reporting initiative simply would not exist.

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Until next Tuesday!

Best,

Priti

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1. Story of the week

WHAT IS DRIVING THE DISCUSSIONS ON A PANDEMIC TREATY?

The idea of a pandemic treaty is germinating from the tending of political actors, internal and external drivers at World Health Organization and by diverse custodians of knowledge and influence. The need for a pandemic treaty is firmly rooted in the context of global health security that has effectively displaced every other narrative as a result of COVID-19.

Global health security has been defined as “measures that are required to reduce the risk and impact of health events that endanger populations around the world.”

The current situation raises many fundamental questions on whether our global health institutions – a legacy of the “infectious disease diplomacy” from the colonial era, as some have articulated, are actually suited to the current day world.

According to global health legal scholars, public health diplomacy owes its origins to “euro-centric” International Sanitary Conferences in the 19th century. Experts have noted how “the colonial origins of public health diplomacy are traceable to the European-led International Sanitary Conferences, which were catalysed by the outbreaks and cross-border spread of deadly cholera epidemics from the 1830s.” There was a need to “to harmonise inconsistent national quarantine regulations, share epidemiological information, and establish a multilateral health organisation with a mandate on disease surveillance.”

Cut to 2021, emerging policies on vaccine passports, beefing up stricter export restrictions on vaccines by the European Union, follow these pathways from the past. Vaccine nationalism coupled with demands for a pandemic treaty, will exacerbate north-south divides, critics fear.

In this story, we try to explore unfolding discussions towards a pandemic treaty. Apart from some member states, we also spoke with international legal scholars, and experts to understand the treaty making process and the implications of such a treaty for all countries, developing countries in particular. We also mapped a definitive push for an international instrument to deal with future pandemics across different forums.

Image credit: Photo by Pixabay from Pexels

THE POLITICAL BACKING FOR A PANDEMIC TREATY

As we reported earlier this year, WHO DG Tedros Adhanom Ghebreyesus, seemingly tossed the idea of a pandemic treaty to member states during the proceedings of the 148th Executive Board meeting in January.

He asked member states to work on a resolution to be tabled at the May 2021 World Health Assembly to find ways of working towards a pandemic treaty which he said is a “very good idea”. He said that such a treaty could give a political dimension to the International Health Regulations (2005). If such a treaty becomes a reality, it will only be second to the Framework Convention on Tobacco Control (FCTC) which was negotiated by member states in 2003.

The DG also revealed that this proposal was first suggested by Charles Michel, President of the European Council, the institution which sets the political direction for EU member states. Given the overall importance of the EU as a donor in the response to the pandemic, this nudge from the European Council was perplexing but perhaps not unexpected.

Geneva-based observers believe, that DG Tedros and the European Council are “prime movers” who are solidly in favor of a pandemic treaty.

To be sure, it is not only about the current Director-General’s propensity towards the securitization of the current pandemic. Experts have long established “how WHO has been a primary actor in constructing the emerging discourse of infectious disease securitization”. (It has been argued that previous events including the 2001 anthrax attack and the 2003 SARS outbreak “gave an impetus to the securitization of infectious diseases”.)

But this direction is worrisome, nevertheless.

“The treaty idea is moving quickly but it is worryingly vague on content.  It sounds like a top-down initiative by the EU Council to galvanize presidents and prime ministers behind a catchy concept but without much clarity on purpose and content.  In other words, let's go for it, and details will follow,” a Geneva-based global health expert said.

“The European Council’s push for this is mix of self-aggrandizement and putting the EU quickly at the centre of the political discourse while China is still defensive and the US is licking its post-Trump wounds,” the expert added.

(Curiously, some have even raised questions to what extent Geneva-based ambassadors of the European Union member states are keen on such a treaty.)

WHAT WILL SUCH A TREATY LOOK LIKE?

So far, details on what such a treaty can look like, have been scarce. There have been a range of suggestions on the form such an international instrument can take, from a UN-wide framework convention with subsequent protocols, to a treaty negotiated within the WHO.

Undoubtedly, the process will refer to the reviews by several committees looking at the response to the pandemic including the Review Committee on the Functioning of the IHR (2005) and the Independent Panel on Pandemic Response and Preparedness. (Both these committees are expected to submit their reviews to World Health Assembly in May 2021, in addition to the work of the Independent Oversight and Advisory Committee for the WHO Health Emergencies Programme.)

For now, the draft resolution on strengthening WHO preparedness and response to health emergencies that is expected to be considered at the 74th session of the World Health Assembly in May this year is making space to articulate the need for such a treaty. The discussions on the resolution are being led by the EU.

(We were told that although this resolution initially did not intend to address the potential for such a treaty, “it now has a placeholder”, one diplomatic source said.)

According to a draft of this resolution from earlier this month, under discussion among countries, one of the suggestions by Chile, includes initiating studies on the “mechanisms required for the implementation of those recommendations, including the consideration of an international treaty or a legal instrument on pandemics.” A suggestion has also been made for a report to be submitted to the the Seventy-fifth World Health Assembly on the feasibility of developing an international instrument on pandemics. This draft of the resolution has been seen by Geneva Health Files.

A NOTE FROM A DEVELOPING COUNTRY ON THE PANDEMIC TREATY

A Geneva-based diplomat from a developing country spoke to us on the process so far, expressing concerns on the lack of transparency in these discussions. “We do not know how this process will move, because there is so much secrecy,” the diplomat told Geneva Health Files in an off-the-record conversation.

“We have just been told that it is necessary because of the pandemic and because there is momentum, but nobody has told us enough about the objectives,” the diplomat said. There are indications that it could perhaps be a framework agreement that would for example, absorb the International Health Regulations into this framework, and would also deal with other issues including pathogens sharing, access to medicines, among others. The treaty would convey high level political messages on preparedness and response capacities, the diplomat added.

Countries remained worried by the way the treaty is being pushed into WHO.

“What concerns us the most, is perhaps not the treaty itself, but the way people are envisaging to do it. The EU is constantly evoking the role of WHO to propose conventions and treaties. If it is something that the secretariat is going to draft and submit to our consideration, it is going to be very complicated. It subverts the logic of multilateralism… the leadership of member states,” the diplomat told Geneva Health Files on the condition of anonymity.

“The current mood inside WHO, at least for us, is quite unfriendly. It seems to us that mainly developed countries, some countries in particular, are trying to bulldoze everything and do as they want without any kind of concern. They argue that there is an urgent need, but they don't explain where this need comes from,” the diplomat said. 

Sources said that some countries want to move forward an agenda that also includes matters not directly related to health emergencies such as antimicrobial resistance and environment. “And this is something that we would not be comfortable with,” the person added.

There is a perception that the treaty is very much being pushed by DG Tedros. “The DG is trying to move ahead with his agenda, because also he has the support of some powerful member states, some of whom, have a lopsided perception of the international health agenda,” the diplomat was of the view.

Even in the event that the secretariat would propose a draft for such a treaty, countries will create intergovernmental working groups to discuss the terms, the issues, have drafting subgroups and committees and then have a conference to bring everything together - it was explained to us. “Usually such discussions are led by member states. The secretariat usually does not propose a draft. That's not how we do it,” the diplomat said.

Ultimately, it is the countries who will decide. “Any such process will not be put in place so quickly, in particular if it is a treaty.  Let the Russians and the Chinese do their part in slowing it down,” another Geneva-based observer following the process said.

While not all member states wield power like the EU or China, international organizations like WHO, are essentially its 194 member states, the diplomat said.

“We are not worried about the substance of the treaty, because we have the capacity to discuss, we have our views, there are issues that could be considered,” the diplomat added.

But not all are as confident about pushing back on these matters. An expert who works with developing countries suggested that unless developing countries go to the table with a strategy on what they want to secure, they will lose out.

“Developing countries are likely to be caught off guard. If you are not clear about what you want and unless you are specific, one can lose to the developed countries who are always better prepared, and know what they want.” As a bloc, there has not been sufficient political coordination even between the emerging powers, let alone the wider group of developing countries, the source observed.

Last week WHO held a briefing for member states to discuss a proposal for a pandemic treaty.

THE POWER AND POLITICS OF ENDORSEMENT

Seasoned watchers also brought to our attention that the idea of a pandemic treaty is also being endorsed by Western scholars in select journals. This is crucial since such views reinforce legitimacy, often at the expense of exclusion of developing country perspectives. This ultimately has implications on the ground, experts say. 

Obijiofor Aginam, Adjunct Research Professor of Law at Carleton University, Ottawa has argued that “health has not always commanded hard policy responses in the foreign policy agenda of the Great Powers except when a particular health issue constitutes a threat to national security or the economic interests of those Powers.”

Aginam, who is also Principal Visiting Fellow, United Nations University, has worked on the revision of International Health Regulations (IHR 2005), and WHO’s Framework Convention on Tobacco Control (FCTC), told Geneva Health Files:

“WHO is an inter-governmental organization of 194 diverse member-states. It is extremely important to take into consideration the divergent legal traditions of member-states in negotiating global health treaties and regulations. Often, most of the “Global South” is marginalized in these negotiations….There is a perceived exclusion or marginalization of most developing countries in the idea of a pandemic treaty.”

In addition, political and commercial interests of member states are sometimes endorsed by those who hold the knowledge capital in some sense. By lending credibility to such processes, they are furthering interests, by virtue of their sheer influence.

“The discourse of ‘decolonizing global health’ interrogates the voices in global health. Where are the voices from the ‘Global South’? Are these voices at the margins or the core? Who speaks for developing countries? Who owns and controls the knowledge economy of global health?,” Aginam raised these questions with us.

Take the most pressing issues in the pandemic, such as the access to medicines.

Sources suggested that influential western journals have published scholarship on the legal aspects of the pandemic, but none that addressed issues of access to medicines, for example.

“The global south has very good academics. But those who present a critical view of eurocentrism do not find a space easily in most of the reputed journals. At least in the field of international law it is so. Views of distinguished jurists is considered as a source of international legal rules. Traditionally this space has been dominated by western scholars,” a global health legal expert said, whose recent submission was declined by an influential publication.

THE LANGUAGE OF SECURITIZATION IN GLOBAL HEALTH

Despite the entrenched securitization narrative in global health, COVID-19 undoubtedly marks a new high for the global health security complex.

In one of the most defining images in 2021, a police official is seen with a canine across a fence. The image has been described as “Military police entered an Italian factory over the weekend, where AstraZeneca had sent vaccine doses to be made prepared for distribution” (See Politico’s EU sends Italian police to find AstraZeneca vaccines, triggering global angst.)

Edward Hammond, a legal expert affiliated with Third World Network, who has also worked on security issues in relation to pathogens in the U.S., said, “The motivations of the proponents of securitization are fundamentally nationalistic, even if some of them speak the language of multilateral public health discussions.  It should also be recognized that securitization proponents frequently earnestly believe that their proposals will be beneficial for developing countries, a view they are able to hold often due to rather antiquated and sometimes paternalistic notions about development. To an extent it's naïveté: Equity is not their business, and empowerment certainly isn't either.”

Hammond, who has in the past attended meetings of the Biological Weapons Convention and participated in international and domestic on ‘biosecurity’ issues, added, “Medicines become ‘countermeasures’, one of a number of US national security terms that have crept into WHO's language.  Benefits for developing countries in a securitized WHO are ultimately an ancillary consideration when the primary objective being served is US (or other North) national security.”

He observed that during 2001, post 9/11, in the context of anthrax letters in the U.S., “Some of securitization crowd was embedded at WHO. Some of these people, are becoming freshly active in the current context.”

Securitization, he says, causes developed country policymakers to adopt a sort of 'trickle down' international public health outlook, where they believe that “benefits for developing countries in the area of many infectious diseases are justified in terms of their domestic security benefits for wealthy countries”.

“Suppressing an outbreak of a potentially pandemic pathogen in Africa, for example, becomes not a humanitarian end in itself but rather an effort directed toward preventing accidental or deliberate spread to developed country soil, and importantly an opportunity for the state security (military) apparatus of developed countries to acquire pathogen samples and national security relevant insight into pathogenesis, transmission, disease progression, etc.”

Consider this recent statement:

“As COVID-19 devastatingly demonstrates, Americans’ health security is inextricably tied to global health security,” as was recently argued by leading global health legal scholars.

There is tremendous interest in monetizing global health security and a pandemic treaty will contribute towards it.

Take, for example, the use of innovative financing to address global health security that has been increasingly pushed by private actors, including for a Global Health Security Challenge Fund. (One hopes that the failure of World Bank’s pandemic bonds during the Ebola outbreak, will prove to be instructive.)

Interestingly, some experts are of the view that the commercial considerations are probably less accentuated in the health securitisation debate.

“For health securitologists, national security can trump corporate interests.  If big pharma won't deliver, sometimes they will entertain more public options for producing vaccines and therapautics. Yet, the US experience with BARDA, which links public funding for health research on infectious disease with military research priorities, a model which the EU now apparently intends to emulate, has been riddled with allegations of inefficiency and impropriety, for example, in relation to purchases of anthrax vaccine,” Hammond noted.

Distinctly reflecting unfolding events in European Union, Hammond says, “There is also a downside to the securitologists comparative willingness to confront industry:  They may want to regulate it to nationalistic ends, that is, clamp down on information sharing and impose export restrictions on materials and technologies lest they fall into the "wrong hands".  The securitologists also may not much care about equitable distribution of any useful new innovations once national goals - e.g. a stockpile - are served.”

SO IS A TREATY NECESSARY?

Some experts say that a framework convention approach can be a starting point that can lead to protocols at a later stage. The role of the UN, or even WHO leading efforts for a treaty have been suggested, while noting the potential concerns on “WHO’s ability to cover important areas such as finance, trade, supplies, law enforcement, and the broader economic and social disruptions caused by a pandemic.” To be sure, regulations in non-health sectors such as transport, ports, and borders, have witnessed the weakest global compliance during the pandemic, experts say.

Going by the numerous forums that have been discussing the need for a treaty, one can be led to believe as if it were a globally articulated need. A closer look suggests that a lot of such articulation for the need of the treaty is in the developed world.

Take the Pan-European Commission on Health and Sustainable Development, convened by WHO-Europe. This commission, an independent and interdisciplinary group of leaders was set up “to rethink policy priorities in the light of pandemics.” Last week, the commission launched a call to action, that among other suggestions, proposes a potential International Pandemic Treaty in order “to promote global public goods for sustainable improvements in health.”

Although calls for a pandemic treaty has been given an impetus by WHO’s influential members states who are key donors, the outcome will be subject to the very multilateral nature of the treaty making process as some developing countries have said.

"The important thing, in my view, is to start an intergovernmental process that then generates its own momentum and inertia, and will come to its outcome in a more reasonable time,” global health law expert, Gian Luca Burci, also Adjunct Professor of International Law at the Graduate Institute of International and Development Studies in Geneva said.

“It's a challenge to plan for the post-pandemic and the next pandemic during a raging pandemic. But we can't wait until all the dust is settled because we waste time and the window of opportunity may then be even narrower than it is now,” Burci, a former legal counsel for WHO, told Geneva Health Files.

Like before, WHO’s ‘securitization of infectious diseases’ will be subject to geopolitics. In addition, vaccine diplomacy wielded by the emerging powers, despite their faults, will undoubtedly challenge these processes.

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2. Wrap this week

  • Human Rights Council: Resolution A/HRC/46/L.25/Rev.1 urges states to ensure equitable, affordable, timely and universal access for all countries to COVID-19 vaccines in response to the pandemic.

  • The provisional agenda of the 74th World Health Assembly now available.


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