TWN Info Service on Health Issues (Sept21/01)
2 September 2021
Third World Network

WHO: Working Group Bureau questions on pandemic treaty prejudge outcome

New Delhi/Kochi, 2 September (Nithin Ramakrishnan and K M Gopakumar) – Leading questions on a proposed pandemic treaty from the Bureau of a World Health Organization (WHO) working group appear to prejudge the outcome of upcoming discussions.

The Member States Working Group on Strengthening WHO Preparedness for and Response to Health Emergencies (WGPR) was established by the 74th World Health Assembly (WHA) Resolution WHA74.7 in May this year, and was mandated to assess the benefits of developing a new pandemic treaty under WHA decision (WHA 74(16)). The first meeting of the Working Group was on 15-16 July, with the second currently taking place on 1-3 September at the WHO headquarters in a hybrid mode.

The questions concerned compromise the objectivity of the WGPR’s mandate “to prioritise the assessment of the benefits of developing a WHO convention, agreement or other international instrument on pandemic preparedness and response.”

The programme of work of the second meeting of the WGPR lists four questions to steer the discussion on agenda item 5 titled “Prioritization of the assessment of the benefits of developing a WHO convention, agreement or other international instrument on pandemic preparedness and response”.

According to the WHA Resolution WHA74.7 the WGPR must consider the findings and recommendations of the Independent Panel for Pandemic Preparedness and Response (IPPPR), the International Health Regulations Review Committee (IHR Review Committee) and the Independent Oversight and Advisory Committee for the WHO Health Emergencies Programme (IOAC).

A draft programme of work for the 2nd meeting of the Working Group was adopted through a silent procedure on 30 August. The assessment of the benefit of the proposed pandemic treaty is agenda item 5 scheduled for 3 September, after considering the recommendations of the various committees and expert bodies under item 4. The consideration will be based on an analytical paper prepared by the WHO secretariat (A/WGPR/2/3) compiling all the recommendations from various committees, especially that of the above mentioned three committees and of the Global Preparedness and Monitoring Board (GPMB).

The draft programme has set forth four leading questions upon which the “prioritization of the assessment” of the benefits of developing a WHO convention, agreement or other international instrument on pandemic preparedness and response will be made. These are:

“1. Member States’ past and current experience in dealing with pandemics, what could be the merits of developing a WHO convention, agreement or other international instrument on pandemic preparedness and response?

2. What steps can the Member States take in ascribing relative priority to the various benefits identified of developing a WHO convention, agreement or other international instrument on pandemic preparedness and response?

3. What criteria and scope should be included or excluded from a WHO convention, agreement or other international instrument on pandemic preparedness and response?

4. What are the gaps that need to be addressed to prepare for future pandemics, and do Member States share the idea that implementation of recommendations considered under agenda item 4 requires another framework?”

These leading questions, especially questions 2 and 3, prejudge the outcome of the assessment and compromise the objectivity of the mandate of the Working Group.

It is not clear as to who formulated the above four questions. The Bureau which has the authority to prepare the provisional agenda in all probability would have drafted the programme of work. The Proposed Method of Work and Terms of Reference adopted on 30 August allows for the Bureau to propose ways of considering substantive issues.

After the consideration of Item 4, a logical approach would be to ask two general questions. First, whether the implementation of the proposed recommendations can be made effective within the existing legal instruments. Secondly, if the first question is answered negatively, whether amendments to the existing instruments can achieve the same or is there a need for new instrument. An additional third question may be raised if a new instrument is called for. i.e. on the nature of the new instrument – whether it should be a treaty or a framework convention under Article 19 or a regulation under Article 21 of the WHO Constitution.

To the contrary, the Bureau’s questions focus on the merits of developing new instruments straight away. Secondly, it asks what steps Member States would need to take in order to ascribe relative priority to a new instrument. Thirdly, it goes on to ask what criteria and scope should be included or excluded from the new instrument. Finally, the Bureau nails down the need for a “new framework convention” by asking whether the Member States share the idea for another “framework”. These four questions sequentially are prejudging the outcome of the Working Group meeting and to be suggestive of a pandemic treaty.

The WHO Secretariat’s analytical paper has attempted to set the background for the above-mentioned questions raised by the Bureau by arguing that some of the proposed recommendations of the various committees require new agreement/agreements. Not a single reason is provided in the analytical paper as to why some of these recommendations require a new agreement. It merely divides the total of 131 recommendations from the four major reports of IPPPR, IHR Review Committee, IOAC, and GPMB into five categories:

(1) Recommendations that can be implemented through the regular technical work of WHO as per its normative functions;
(2) Recommendations that can be implemented immediately through existing frameworks;
(3) Recommendations that can be implemented by amending or building on existing frameworks;
(4) Recommendations that may effectively/optimally be implemented through new WHO international agreement(s)/instrument(s); and
(5) Recommendations that may address/or involve external bodies/actors.

The analytical paper further states there are 30 out of the 131 recommendations that may be implemented effectively through the proposed pandemic treaty, i.e. they are falling under the category 4. Nevertheless, the dashboard of recommendations prepared by the secretariat does not identify these 30 recommendations, even as the meeting is happening.

The analytical paper also does not list out the 30 recommendations. It gives instead a representative list of recommendations relating to:

1. the establishment of a pandemic framework convention under Article 19 of the WHO Constitution;
2. Member State commitments to and accountability for prioritizing pandemic preparedness through national whole-of-government and/or whole-of-society strategies and budgetary plans, including through peer review of preparedness and response capacities;
3. the adoption of a One Health approach and recognition of the links between human, animal and environmental health in emerging zoonotic diseases;
4. sustainable financing for pandemic preparedness and response;
5. the timely sharing of materials, including genomic sequencing data;
6. equitable and timely access to medical countermeasures;
7. effective and scalable supply chains for the rapid development and deployment of medical countermeasures;
8. scalable and funded research and development for timely and innovative manufacturing of medical countermeasures and their regulation;
9. timely technology transfer, sharing of know-how and/or voluntary licensing; and
10. the empowerment of communities, strengthening of civil society and upholding of human rights principles.

It is very much pertinent to note that 9 recommendations out of the above 10 could be realized effectively through the International Health Regulations (IHR), either by amending or by adding annexures to IHR.

A point-by-point analysis is provided by below.

Recommendation 2, which requires Member States to be more committed and accountable, is not something which is outside the scope of IHR. Perhaps, the calls for the whole of the society and whole of the government approaches have come up due to the deplorable conditions of National Focal Point offices established by some Member States under Article 4 of IHR. It must be noted that these approaches, if introduced outside Article 4, would cause fragmentation of the national health response and be counter-productive. Enhancement of government and societal response can be called for within the IHR with a detailed annexure explaining how different units or institutions at work shall co-ordinate with national focal points.

One health approach (recommendation 3), is not an area where there is substantial legal vacuum. WHO promotes such an approach and there are provisions within the IHR (Art.14) as well as the WHO Constitution which allow WHO to work with organizations such as OIE, FAO or IPCC. It is only a matter of effective implementation of inter-organizational agreements, most of which are already in place.

Recommendations 4 and 10, regarding sustainable financing and community participation in emergency preparedness and response respectively are the recommendations of utmost importance which came-up during the COVID-19 response. It is pertinent such that the 2021 IHR review committee noted: “All previous IHR Review Committees have highlighted the need for sufficient resources to be allocated to the implementation of the Regulations. This includes national funding for strengthening detection and response capacities in the context of building resilient health systems. It also includes funding for WHO to enable it to lead an effective, coordinated, multisectoral and evidence-based global effort to protect humanity against public health risks. Financial support mechanisms are also needed for some countries.”

Therefore benefits of the implementation of the recommendation on sustainable financing should be available to Health Emergency Preparedness as a whole, not just to pandemic preparedness. This can be effectively achieved by adding new provisions to IHR 2005, and not by creating another treaty for a specific form of health emergency and that too with no prospects of universal membership of states.

It must be noted that the Working Group’s ability to discuss sustainable financing is also limited. Paragraph 7 of the analytical paper states: “Any recommendations of a financial nature should be reviewed by the Working Group on Sustainable Financing, including those directly related to its work. Close coordination should be maintained between the two working groups in order to avoid any duplication or possible contradiction between their respective findings”.

On material sharing (recommendation 5), Article 46 of the IHR very clearly obligates the Member States to provide materials including biological substances and specimens for both verification and public health response as per the provisions in national law and taking into account relevant international guidelines. A model pathogen material sharing agreement with mandatory benefit sharing clauses can be annexed to IHR for the effective implementation of this recommendation.

On effective and scalable development of medical countermeasures and supply chains, and on equitable and timely access to the same (recommendations 6, 7, 8), Article 44 of the IHR 2005 stands as a cornerstone provision. Article 44 should be read with Article 13 and 14 of the IHR, which ensures WHO’s and other international organizations’ assistance to the Member State in need. The qualification in the Article 44 with regard to WHO’s technical assistance i.e. “the extent possible” must be amended to provide an obligation to WHO to provide technical assistance upon request from a Member State. The current qualification could be interpreted to mean that the obligation of WHO is linked available resources.

Although timely technology transfer (recommendation 9) is a feature encompassed under the obligation of technical assistance under various provisions of IHR (Articles 13, 44) there is no explicit mention of technology transfer. However, it could be addressed through an Annex to Article 44. It is also to be noted that often the technology transfer issue is linked with intellectual property rights, which is governed by the TRIPS Agreement and therefore require actions beyond WHO.

In short, this means the only point amongst the recommendations which requires a framework convention is the recommendation which states that there must be an establishment of a new framework convention. This has precisely been the problematic approach right from the beginning. None of the expert bodies which called for a new framework convention reasoned out why it is needed or how it will be more effective than the present regime. The WHO secretariat and the Bureau of the Member States Working Group are the latest to join such a pursuit.

Legally, an amendment to the IHR can hold all Member States more accountable because it is an instrument under Article 21 of the WHO Constitution.+