TWN Info Service on Health Issues (Oct21/19)
30 October 2021
Third World Network

WHO: Uncertainty over nature and content of proposed pandemic treaty even among supporters

Geneva, 30 October (TWN) – Uncertainty prevails over the nature and content of the proposed pandemic treaty, even among the countries that support it.

This has come out in the open during the “deep dive” session of the Working Group on Strengthening WHO Preparedness and Response to Health Emergencies (WGPR) that discussed the proposed new instrument.

The WGPR organized its 3rd deep dive session on 20 October 2021.

The Bureau of the WGPR had circulated 9 guiding questions for the session, which in principle helped to keep open a two-track approach, even as no consensus is being formed about the nature, content and the process to be followed in reforming the global health emergency law, i.e. strengthening the international health regulations (IHR) 2005 and adopting a new instrument to deal with pandemic preparedness and response.  These were as follows:

1. “Are there other benefits or advantages of a WHO Convention, Agreement and Instrument that we have not discussed?
2. Are there other risks of a new WHO Convention, Agreement and Instrument that we have not discussed?
3. A number of Member States have expressed reservations about the idea of a new WHO Convention, Agreement and Instrument in their interventions. Are these reservations to be considered as exhaustive? Do you disagree with some of them?
4. There is a view that the new instrument should be under the umbrella of WHO. Are there issues we have been considering that delegations regard as outside of the scope of WHO’s mandate? If so, what are they, why are they viewed as outside WHO’s mandate, and where would such matters best be addressed?
5. Given the variety of views on the matter of a possible new WHO Convention, Agreement or Instrument, what are your views on an “opt-in” instrument, i.e Convention?
6. A number of Member States have expressed concerns about the risks of having two conflicting sets of norms, the potential new instrument and IHR. One potential approach to address these in Member State negotiations would be for the WGPR to oversee the negotiation of both streams, e.g. IHR Amendments and new WHO Convention, Agreement or Instrument, and to have this mandate clearly given at the WHA SS. What are your views on this approach?
7. It seems to the Bureau that there is overwhelming support for moving forward with IHR strengthening and opening a negotiation on a potential new instrument, in addition to other elements of strengthening WHO and PPR. Would the working group agree with this conclusion?
8. Given the above, what would be the views of Member States about the optimal timing of a possible negotiation? Should it be conducted before completing the work on the IHR? Conducted in parallel? Or following the reform of the IHR?
9. Would Member States wish to raise any other issues relating to the practical aspects of initiating negotiations toward a new WHO Convention, Agreement or Instrument?”

These questions are largely based on the non-paper of the Group of Friends of a Pandemic Treaty (Friends of a Pandemic Treaty) and the discussions that have taken place at the past WGPR meetings. However, the guiding questions failed to initiate a comparative examination of the various available types of instruments that can be adopted by Member States under the WHO Constitution.

Interestingly, irrespective of the many public statements demanding a new instrument under Article 19 of the WHO Constitution, the Friends of a Pandemic Treaty’s non-paper on the benefits of a new legally binding international instrument uses the phrase “a new agreement” without any reference to Article 19 of the Constitution (see “WHO: No reference to WHO Constitution in “non-paper” on pandemic treaty”.)

There are at least 3 categories of new instruments under the WHO Constitution: a convention under Article 19, regulations under Article 21, and recommendations under Article 23. A “new agreement” can be in any of these formats. Within the categories, there can be different types of instruments that can be adopted. For example, there can be a stand-alone agreement or a framework convention, both adoptable under Article 19. Similarly, regulations can be adopted or revised for a variety or combination of purposes as found in Article 21. While these options are available, it is important to study the comparative benefits and risks of choosing one option over the other.

The Indian delegation at the WHO had put this issue in perspective: “For us, it is a question of means and the end… we are in principle, open to all those means, which gives us those desired goals. It’s the efficiency of the means that needs to be analysed thoroughly. That’s our key question. When we hear from the group, friends of treaty, when we hear from other proponents that, let’s have an IHR amendment on this issue or … perhaps, this can also be incorporated into the treaty… the question that needs to be addressed is which of the two, is the most efficient means”.

It is also evident that countries diverge not only in what they expect out of the new legal instrument (scope of the treaty), but also on various other concerns relating to the tools and processes such as: (i) “opt-in” and “opt-out” models of law-making; (ii) “soft” and “hard” law tools in ensuring compliance; and (iii) sequential or parallel approach towards to various types of legal reforms.

Scope of the Treaty

The confusion regarding the scope of the new instrument is not only about the contents but also regarding the central subject of the proposed pandemic treaty. Member States have so far restrained themselves from adopting any tentative definition of “pandemic” (the official term at the WHO is “public health emergency of international concern”). They have not addressed the question whether the obligations of pandemic preparedness and response is a carving out of health emergency preparedness and response obligations identified under IHR 2005 or not. Whether the proposed treaty is applicable to all types of public health emergencies of international concern is not yet consistently answered.

While this central issue remains unanswered, the ideas relating to the probable legal reforms are also varied in the meeting and the Member States had to eventually evade the discussion. Countries such as Brazil, China, India, and the U.S. expressed their concern in this regard and questioned whether Member States will be in a position to make a final call regarding the new instrument. Brazil characterized the situation as a problem in which a chariot is tied ahead of the horses.

The U.S. at the beginning of the meeting maintained a position that it understands there is “quite a bit of consensus that we should improve and strengthen the IHR, improve the clarity and the precision of language and there is overwhelming consensus that we must strengthen the governance of the WHO”.

But then it also stated that “there is a need to understand the substance for anything else that we may agree to, in the form of an international instrument”.

Row over Opt-in or Opt-out Mechanism

There was an intense discussion about “opt-in” and “opt-out” models available for the new instrument.

[An “opt-in” model is an arrangement in international law, where countries are allowed an option to become bound by the treaty, after the adoption of the text of the treaty in an international conference through a mechanism of legal ratification at a later stage. Article 19 of the WHO Constitution allows WHO to adopt such treaties. The only treaty so far adopted under Article 19 is the Framework Convention on Tobacco Control. Although that Convention has a near universal membership, certain countries such as the U.S., Switzerland, Cuba, Morocco and Argentina are not parties to the Convention.

An opt-out model is that form of instrument that becomes automatically binding upon every WHO Member State at a specified time, unless a Member State expressly opts out from the instrument.]

Brazil stated that the Member States speaking on the merits of the opt-in model, during this early stage of negotiations, is a deviation from the culture of WHO that seeks consensus in decision making and actions of the Organization. According to Brazil, the early focus on the merits of an opt-in agreement indicates a dangerous pathway where there will be no serious efforts to build consensus amongst Member States, and some countries would go forward without taking everybody into confidence.

The European Union (EU) on the other hand, views an opt-in arrangement as an inclusive process where everybody is encouraged to participate, exchange views on different subject matters and find convergences. According to the EU, it also leaves an option to Member States who are not confident to remain an observer of the process and make a learned decision to become a party to the treaty whenever possible.

Certain Friends of the Pandemic Treaty, including Chile, expressed a similar view point.

However, the flipside of this option is that it actually provides a loophole, especially to the developed country Member States, to avoid any hard obligations on equity such as to share resources or technology, or to diversify production bases of diagnostics, therapeutics and vaccines. Member States could resort to non-ratification, if such obligations make their way into the text of the treaty. Non-ratification is a low-profile tool less susceptible to political or moral pressure compared to opt-out tools.

New Zealand opined that while the “opt-out” model available under Article 21 regulation is a very effective mechanism, reliance on an Article 19 instrument (i.e. opt-in mechanism) is necessary due to the limited scope of Article 21.

This view is also highlighted in the Secretariat’s analysis which states: “Article 21 of the WHO Constitution provides a narrow scope for regulations such as the IHR; in contrast, an Article 19 convention or agreement could address pandemics within the broader framework of the “competency of the Organization” as a whole, including its expansive definition of health and its foundational principles as set out in the preamble of the WHO Constitution”.

Nevertheless, the WHO analysis also acknowledges that the broad scope of Article 21 can be understood from the scope of “sanitary and quarantine requirements and other procedures designed to prevent the international spread of disease”.

Responding to this concern, the WHO Legal Counsel, who participated in the deep dive meeting, said that the scope of Article 21 is left open to the interpretation of the WHA under Article 75 of the WHO Constitution.

[Article 75 recognizes the mandate to WHA to settle any dispute or question relating to the interpretation of the provisions of WHO Constitution.]

It must be noted that Article 21(a) has been used very broadly at least twice in the past, once in 1969 when the IHR was first time adopted in replacement of sanitary regulations of 1952, and then in 2005 when IHR 1969 was revised to IHR 2005. This marks the shift in the scope of Article 21(a) from providing simply for sanitary or quarantine procedures against the international spread of disease to a law providing for the adoption of comprehensive international health response plans against an internationally spreading disease.

Uncertainty over “soft law” and “hard law” combination

A lack of shared understanding among Member States persists with regard to the appropriate deployment of soft law and hard law mechanisms to address the gaps in the existing law. Whatever be the instrument type, both these mechanisms can be used in varying combinations in order to ensure better compliance. The WHO legal counsel illustrated this possibility by drawing examples of soft-law mechanisms that are found in a binding regulatory instruments such as IHR. He also provided examples of hard law mechanisms found in soft law instruments such as Article 23 recommendations.

Getting the soft and hard law combination right is crucial to address the question of equity in the context of health emergency preparedness and response. In the present text of IHR 2005, these mechanisms are used inappropriately, such that compliance with IHR rules have become very weak. For example, the duty to cooperate provisions like Articles 13(5), 44(1) and 44(2), which oblige developed or affluent countries to collaborate with or assist the affected or the State in need, are designed with undefined terms like “logistical support” and indeterminate phrases like “to the extent possible”. This softens the law such that a State not complying with its duty to collaborate or assist under these provisions cannot be held responsible.

Ghana in the meeting pointed out that “lack of compliance” is the pressing concern, not the lack of rules. Many countries including Indonesia, New Zealand, Morocco and Namibia seconded Ghana’s call for more compliance.

Moving forward, it is important for the Member States to analyse which concerns are more pressing, and which of them would require hard law mechanisms to ensure compliance. It is doubtful whether equity forms a major concern to be considered for hard law design.

For instance, the Netherlands, which took the floor in support of the EU and Friends of the Pandemic Treaty, spoke about what it considers as the important pillars of the global health architecture, and reportedly “equity” was not one among them. Meanwhile Chile, a Latin American friend of the Pandemic Treaty reassured equity will be a prime concern.

Indonesia which is in support of the new instrument reportedly said that they are of the view that “such an (new) instrument should bring countries together to dispel the temptations of isolationism and nationalism and to address the challenges that could only be achieved together in the spirit of solidarity and cooperation”. The new instrument according to Indonesia should also enhance international cooperation to “improve alert systems, sharing of research, and local, regional and global production and distribution of medical and public health countermeasures, not just vaccines”.

South Africa also emphasised on equity by saying such an instrument should contribute to development and industrialization”, and it should enable local manufacturing, which is necessary for low- and middle- income countries to achieve the objective of saving lives. It must be able to address the needs of, as closely as possible, the most vulnerable segment of societies and as manifested within and between countries.

The delegation from Brazil, on the other hand, required the Friends of the Pandemic Treaty to give a solid commitment in this regard. The delegation regarded it as an imperative before any decision on moving forward is made.

Move forward sequentially or parallelly?

Amongst the calls for looking at the process rather than the substance, the most important point of discussion was how to proceed with reforms in law. Whether there is a need for amending existing instruments before starting the negotiations for a new instrument or whether negotiations for both the processes can happen in parallel was raised in the meeting. The delegation from India indicated the preference for a sequential or step by step approach since issues and requirements become more and more clarified as the negotiations progress. India’s view is that efficiency of legal reforms should never be compromised in an urge to make use of the present political momentum.

However, the Friends of the Pandemic Treaty pressed hard for a parallel process. It was said in the meeting it will give more visibility to synergies and divergences and that can be then effectively managed. Germany explained it may be more useful to keep open all the three instruments as identified in the WHO Constitution. Switzerland also promoted a single parallel process so as to take note and incorporate all required IHR adjustments that are needed to maintain coherence with the new instrument.

Concerns were raised as to how this would leverage the diplomatic resources of certain countries which maintain small delegations for the international negotiations. Indonesia called for a linear, interlinked and coherent negotiation process for reforming existing instruments and for adopting new laws. It wanted to make sure that the schedules of delegations allow for such negotiating rounds.

South Africa also placed on record its expectation of a process which does not compromise the ability of the smaller delegations to participate in the negotiations. It further stated: “we are also cognizant of capacity challenges for many countries to engage in too many parallel processes. Many countries are still engaged in dealing with a pandemic.”

WGPR Bureau to prepare a Zero Draft Report for WHASS

Amidst these uncertainties, the WGPR Bureau has pushed forward an idea of preparing a Zero Draft of the Report to be submitted to the WHA Special Session (WHASS) on or before 25th October 2021. Member States can thereafter refine the draft for a few more days before the report is finalized during the 4th meeting of the WGPR to be held in the first week of November.

Russia maintained its earlier position that the WGPR Bureau should not draft any resolutions or decisions to be adopted in the WHASS as it will go beyond its mandate.

The Bureau co-chair, who gave final remarks on the deep dive session, seems to infer two basic principles that had emerged from the discussions: (1) status quo is not acceptable and (2) proponents of all ideas are not actually speaking of an “either or” proposal in which only one option can be pursued further.

The discussions in total therefore do not make any commitment as to any form of the proposed instrument or any prioritization of the actions, although in their rhetoric outside the WGPR, the EU and the Friends of the Pandemic Treaty relentlessly promote the idea of a Pandemic Treaty.

The double track approach has an impending danger of amending IHR to the interests of developed countries promoting hard norms of global health security, while issues like equitable access to health care are pushed to a framework convention with no solid commitments.+

[See accompanying article: No reference to WHO Constitution in “non-paper” on proposed pandemic treaty dated 30 October 2021.]