A decision regarding the launch of negotiations of a ‘New Pandemic Treaty’ is expected to take place at the 74th World Health Assembly (WHA74), happening this week. The European Union (EU) and several other member-states are pushing for the assembly to make a quick decision on the proposal, which will create a ‘Global Framework Convention on Pandemic Preparedness and Response’ (see the EU policy statement here). The negotiations are bound to be hectic.
Three committees that the WHO commissioned – the IHR Review Committee (IRC), the Independent Oversight and Advisory Committee (IOAC) and the independent panel for Pandemic Preparedness and Response (IPPPR) – have also tabled their recommendations. They are in favour of a new pandemic treaty.
In the second week of May, the EU sought India’s support for the treaty, to which India has so far not responded. Although the US, Brazil and Russia have sought to stall negotiations, they have expressed interest in discussing it at a later stage, after examining the committee’s reports.
Let’s be clear: The push for this treaty distracts from the demands of the developing world for better access to vaccines and treatments, and instead tries to create a narrative that a lack of rules prevented the world from mounting an effective international response to the COVID-19 pandemic. It is an attempt to overshadow efforts like the TRIPS waiver proposal and the demands to improve public health infrastructure and replenish the WHO’s resources.
India’s silence thus far is justified, but at WHA74, it should oppose the pandemic treaty as well as the recommendations of the various committees.
No legal vacuum for a new treaty
Article 2(g) of the WHO Constitution provides for the organisation “to stimulate and advance work to eradicate epidemic, endemic and other disease”. This mandate is strengthened through the International Health Regulations (IHR) 2005, which were adopted under Article 21 of the WHO Constitution to prevent the international spread of disease.
The WHO director-general, currently Dr Tedros Adhanom Ghebreyesus, is empowered to determine and declare a ‘public health emergency of international concern’ and trigger an internationally coordinated response. Compared to other international legal instruments, the IHR is more advanced because it becomes binding on member-states upon adoption by the WHO – unless a member-state explicitly rejects it within a prescribed period.
Perceived deficiencies in the existing response to the COVID-19 pandemic exist not because of the absence of law – but due to its poor implementation. According to the IOAC and IRC reports, they aren’t implemented properly because of structural problems and lack of resources, at both the member-states and the WHO levels. The IPPPR report also identifies social and economic inequities both within and between nation states as the principal aggravating factors for COVID-19. As a result, the obligations specified in the IHR haven’t been executed properly.
But the three committees still recommend the creation of a new treaty, and ignore structural weaknesses with the WHO and with member-states’ public health systems.
In addition, a treaty is required – according to the IHR review committee – because the IHR lacks a mandate to work on the following:
1. Rapidly share information about epidemics, obtain biological samples of the pathogen and sequence the genomes;
2. Improve access to diagnostics, therapeutics and vaccines; and
3. Prevent zoonotic diseases
However, both the diagnosis and the cure are wrong. IHR 2005 – through its Article 44 read with Articles 14, 46 and 57 – already provides a systemic approach towards these issues, albeit on a voluntary basis and on broad terms.
In fact, adopting interpretative texts, rules, guidelines or amendments to IHR 2005, under Article 21 of the WHO Constitution, can help make the application of the aforementioned provisions more certain. Such adoptions can also alter the regulations’ voluntary nature by articulating the “differentiated but shared responsibilities” of high-, middle- and low-income states during a public health emergency.
Another advantage is that an instrument based on IHR 2005 can enter into force faster, and can be binding through Article 21.
On the other hand, a new framework convention outside the IHR will only spell more trouble because then, each area of concern – like information-sharing or technology transfer – will need separate rounds of negotiation, and separate legal instruments to become established law.
A new treaty will also allow the richer member-states to decide whether to become party to each of these separate instruments – thus weakening the IHR provisions.
Framework convention not the correct tool
A framework convention is not the correct type of legal instrument with which to resolve the WHO’s structural and financial issues – issues coming in the way of the body’s proper discharge of obligations under IHR 2005.
Such a convention is basically a structured legal arrangement that commits parties to meet regularly and to look for solutions based on certain principles set by the convention. These solutions are often then adopted as protocols or supplementary legal instruments at a later date, after many rounds of negotiations, which can last for years. Recall the UN Framework Convention on Climate Change and how laborious the progress it makes is.
As such, adopting a framework convention won’t resolve the legal mandate problem. Instead, it will launch an excuse to continue negotiations, create new pitfalls and widen existing gaps in international pandemic law.
The treaty’s proponents want it to be signed in the first quarter of 2022. This is an ambitious timeline that will pinch opportunities for less well-off member-states to voice their issues and have them resolved, and crimp effective participation. Most of them are already in a state of duress thanks to the pandemic, and will be vulnerable to the pressures of high-income states during negotiations.
The history of negotiations and evolution of international health laws are not that innocent. The powerful states and their private investors always advance their interests – particularly to profiteer during a crisis – without reciprocating with legal obligations to assist countries in need.
Is the iron really hot?
At this juncture, India shouldn’t be a silent observer. It must strongly oppose the proposal for the new treaty, recapitulating its reputation as a country that fights for the healthcare needs and rights of low and middle income countries.
IHR 2005 is not flawless, but the reforms to fix the consequences of these flaws should be more intrinsic and effective. All the committee reports and the proposed treaty itself stress the need to share disease data faster – but conveniently forget what we need to do to prevent or respond to such outbreaks in future.
India should examine the pros and cons of the committees’ recommendations, which have sidelined the real issues, and pick from the best of them to reform IHR 2005.
The proponents of the new treaty say the COVID-19 pandemic has devastated people everywhere and that governments are desperate to act. “We must strike when the iron is hot,” they say. But a framework convention will strike the poorer nations, just as they’re struggling, to the profit of the stronger ones.
Nithin Ramakrishnan is an assistant professor of international law at the Chinmaya Vishwavidyapeeth (deemed to be university), Ernakulam. He is a scholar of traditional international law and closely follows the WHO and IHR implementation.