Pandemic Regulations or Pandemic Agreement? Growing Affinity for Article 21 Over Article 19 of WHO Constitution, as Some “Treaty” Proponents Rethink Underlying Legal Provisions of New Rules [INB8]

Newsletter Edition #66 [Treaty Talks]

Hi,

A change of heart? Anti-climax? It is hard to come up with an expression to describe our story today.

For global health legal geeks following the tortuous discussions on the reforms to the governance of health emergencies, it is a big deal. For the others, you may wonder why two different numbers can matter so much. Read on, to know more!

There is emerging preference, among certain countries to anchor the entire set of new rules to govern pandemics under Article 21 of the WHO Constitution. If countries decide so, the rules can come into existence faster, and with a large number of WHO member states adopting them unless they decide to opt-out. This is in contrast to, what now appears to be, a hitherto preferred approach for adopting a new Pandemic Agreement under Article 19, which necessitates ratification by Parliaments. (We are painfully aware that some Parliaments these days, may not necessarily represent science or the will of the people.)

With less than 100 days left to the World Health Assembly in May 2024, and less than a score of negotiating days remaining to conclude these discussions, such a rethink on the underlying legal provision of a pandemic accord could be a more practical approach to policy-making. This could, however, trump political thunder-making. Picture this as a headline: “WHO Member States Agree on Pandemic Regulations” as opposed to a flashier sounding “Pandemic Agreement”.

What is in a name? Nothing much if you ask us, barring missed photo-ops for legacy-driven politicians.

I hope you are suitably intrigued. And yes, you are welcome! Support us, so we bring you useful insights in real-time.

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Until later.

Best,

Priti

Feel free to write to us: patnaik.reporting@gmail.com. Follow us on X: @filesgeneva

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Illustration Credit: Amy Clarke, Chembe Collaborative

I. EXCLUSIVE FROM INB8

Pandemic Regulations or Pandemic Agreement? Growing Affinity for Article 21 Over Article 19 of WHO Constitution, as Some “Treaty” Proponents Rethink Underlying Legal Provisions of New Rules

Rules under Art. 21 Could Spur Faster and Broader Adoption

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In what could potentially be a decisive turn in the discussions on new reforms to govern health emergencies, some member states of the WHO are rethinking their preference to have a binding legal instrument based on Article 21 of the WHO Constitution. This would mean that the new rules would come into force quicker, unless countries decide to opt-out within a specified, negotiated, period of time.

So far, the emphasis among “major” proponents of a Pandemic Treaty, has been, to have a binding legal agreement under Article 19 of the WHO Constitution which would then become an “opt-in” instrument, meaning that it will still need to be ratified by Parliaments, in order to come into force. (Even after adoption at the World Health Assembly.)

Article 21 was mostly viewed as a provision with a narrower mandate, compared to Article 19 which was often suggested as one that would have connotations of a strong political agreement. The International Health Regulations, were adopted under Article 21, and are viewed as technical regulations.

If countries now decide and reach consensus on choosing Article 21, this could be a game-changer for these difficult negotiations. Such a choice could alter the complexion of these discussions to a certain extent. There is a potential risk of watered down obligations given that new rules could become a certainty sooner, insulated from the diversity and compulsions of legal systems at national levels. 

Some major treaty proponents told Geneva Health Files, that there is now a reconsideration of the emphasis on Article 19. “Article 21, may in fact be a better option with many advantages”, a senior diplomat from a developed country told us this week, on the sidelines of the eighth Intergovernmental Negotiating Body meeting in Geneva.

For this story, we spoke with diplomatic sources, legal experts, to understand the potential implications of such a choice determining the underlying legal provision for new rules to govern pandemics. We also analyse what a change of tack, by treaty proponents at this stage could mean for WHO member states.

Image Credit: Photo by Tom Fisk, Pexels