We continue to explore and understand the need for a pandemic treaty.
While there has been growing support for the need to craft new legal measures in the wake of COVID-19, questions continue to be raised on whether there is indeed “a legal vacuum” in governing health emergencies.
This week, we bring you a guest essay from lawyers affiliated with The Third World Network. Nithin Ramakrishnan and K M Gopakumar recently authored a comprehensive report: “Proposal for a WHO treaty on pandemics raises concerns”.
In this piece, they elaborate on some of the key issues that need to be considered by WHO member states when discussions on the treaty resume in a few weeks.
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I. GUEST ESSAY
Do we really need a Pandemic Treaty?
By Nithin Ramakrishnan and K M Gopakumar
The Member-State Working Group on Strengthening WHO Preparedness and Response to Health Emergencies (the working group) met during the 15th and 16th of July 2021 and adopted its method of work. The 74th World Health Assembly (WHA) decision has mandated the Working Group to prioritize the assessment of the benefits of developing a WHO convention, agreement or other international instrument on pandemic preparedness and response, and report to the Special Session of the WHA to be held from 29 November to 1st December 2021. The Working Group is expected to start its work on this prioritised agenda.
However, there are many unanswered questions, which were left out by the proponents of the treaty during their well-choreographed campaign for a new pandemic treaty. This article brings attention to a few key questions to be considered before taking any endorsement for a new treaty to govern pandemic.
No shared understanding on what constitutes a pandemic
Although the WHA decision, commentaries and various other communications call the proposed new treaty as the pandemic treaty there is no shared understanding on this term. The logic behind the treaty as seen in the IHR Review Committee (IRC) Report 2021 is that it may “strengthen global coordination and collaboration during global health emergencies and pandemics” (Paragraph 117).
The proponents of the treaty have so far not addressed the distinction between a global health emergency and a pandemic. There is no clarity on the usage of these terms, though WHO Director General declared COVID-19 outbreak a pandemic almost 4 weeks later after he announced the same as Public Health Emergency of International Concern (PHEIC) under the International Health Regulations (IHR) 2005.
The IRC 2021 report records a reason as to why this second declaration was made; it has also not explained how a pandemic is distinctly understood from PHEIC. It merely says that such a pandemic declaration allowed WHO to utilize certain funds associated with WHO Pandemic Influenza Preparedness Programme (Paragraph 79). It is clear that there is no legal definition of a pandemic and also there is no shared understanding about the threshold level or legal criteria by which a PHEIC becomes a pandemic. Further, it is not clear whether the proposed treaty governs only health emergencies of pandemic potential or all health emergencies falling within the category of PHEIC.
Another confusion in the articulation by treaty proponents is the term “framework”. According to the proponents, the proposed pandemic treaty is going to be modeled as a framework convention. A framework treaty in international law sets out only the broad legal principles and the institutional mechanism to administer the treaty. Its implementation requires the translation of these broad legal principles into more concrete legal norms through the adoption of other legal instruments such as additional protocols by the Conference of Parties (COP).
This means a framework treaty is opening up a permanent negotiating forum, and may not immediately advance any new substantive law or result in an upgraded standard of health emergency response. It raises the question why Member States cannot strengthen existing mechanisms like the IHRs, which do not require any additional institutional mechanism like the Treaty Secretariat or the COP.
IHR Reforms v. Pandemic Treaty Proposal
In substance, it is clear that all those new provisions that the three committees (established under WHA Resolution 73.1) look forward to including in the proposed pandemic treaty, are available under the IHRs. However, the COVID-19 pandemic response and its deficiencies have taught that the current health emergency governance through the IHR requires urgent reforms, specifically to meet the needs of developing countries.
At present, the legal obligation under the IHRs is effectively reduced to an obligation to inform WHO on the outbreaks. It is an apparatus to maintain the surveillance system to fulfill the above obligation. Though the IHRs contain certain provisions to require WHO to assist in building preparedness and response capacities of the parties, there is no provision which ensures adequate mobilization of resources under the IHRs. The most important need of the hour is to have adequate resources to build a functioning health system, to ensure access to health products, and to build other core capacities required to respond to health emergencies. Reforms in the IHRs are required to address this and four of such areas are highlighted below.
Firstly, there should be global access to diagnostics, medicines, therapeutics, and prevention kits. This can only happen if the duty to cooperate and assist in Article 44 is taken seriously by the Member-States and WHO. The clause “to the extent possible” allows loopholes for the States to hold on to “Nation First'' policies. Without a clear and objective legal obligation to provide resources to protect and care for the infected populations beyond national borders, the law of cooperation is inadequate. Therefore, the IHRs needs to be amended to enhance its law of cooperation.
Secondly, the decision-making process of the Emergency Committees (EC) under the IHRs needs to be more transparent and freer from conflicts of interest. Currently there is a transparency deficit with regard to the reasoning and decision making of the EC. The dynamics between EC’s advice and WHO Director General’s declaration of a PHEIC also needs more clarity under the IHRs.
Thirdly, the health emergency response often requires sharing of pathogen samples among the researchers and commercial actors. As of now, such sharing occurs in one direction i.e., access to samples without the fulfilment of corresponding obligation of benefits-sharing with countries which shared such samples as obligated under the Convention on Biodiversity (CBD). The IHRs should be read with relevant articles of Nagoya Protocol such that global access to countermeasures or health products developed during a health emergency is not limited.
Fourthly, the IHRs do not envisage or recognize the role of communities in health emergencies including the pandemic preparedness and response. The current framework is guided by a top-down approach and often does not take the community into confidence.
All these and many other required reforms take us to the important question of whether we need a new treaty under Article 19 of the WHO Constitution to reform the governance of health emergencies to enhance the preparedness response capabilities. The answer is that strengthening the IHRs could achieve the objectives with greater scope and intactness than that of a new treaty.
The new treaty would lead to the fragmentation of the governance of health emergencies since States need not become party to a new treaty under Article 19. The IHRs on the other hand is a legally binding instrument adopted under Article 21 which allows the WHA to adopt regulations that automatically bind the member-states. If States want to opt-out as mentioned in Article 22, they would still need to deposit their reservation or decision within a stipulated time frame.
Further, the decision making with regard to the IHRs can be managed and undertaken at the WHA with full participation of member-states. In the case of the proposed treaty it would be carried out by COP of the treaty. This fragmentation of the governance of health emergencies would lead to a lack of accountability and a draining of resources. It will further legitimise the back-door entry to non-state actors pushing their own agenda as seen in the current pandemic response. Therefore, the most appropriate form of reforming the law would be amending the IHRs or issuing further implementation guidelines and annexing them to the IHRs 2005. Both forms of reforms can be implemented via Article 57 of the IHR read with Article 21 of the WHO Constitution.
Image credit: TWN report “Proposal for a WHO treaty on pandemics raises concerns”
A legal vacuum to govern emergencies?
In a way, the new pandemic treaty proposal and the proponents of the treaty are steering the attention of health law analysts away from the IHRs, and the much required reforms. As mentioned above, there is an urgent need to reform the governance of health emergencies especially to address the needs of developing countries, which are often at the receiving end of such governance mechanisms. However, there is no convincing argument that it could be carried only through a new pandemic treaty.
The three reviews carried out as per WHA 73.1 recommended for a new treaty without providing any in-depth analyses for their recommendations for the new treaty. Therefore, the Working Group, instead of falling into the trap of the pandemic treaty rhetoric, needs to carefully examine the so-called legal vacuum. It should seek the question whether such gaps can be addressed through the reform of the existing framework of the IHRs or only through a new treaty. Further, it should also look into the effect of the new treaty on the fragmentation of governance of health emergencies in the light of co-existence of the IHRs. The developing states and their representative governments must therefore reinvest their time in reviewing the existing legal regime and start aggressively articulating the IHR reforms instead of becoming the norm-takers once again, as seen in the history of International Law.
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