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TWN Info Service
on Health Issues (Oct21/20) Kochi/New Delhi, 30 October (Nithin Ramakrishnan and K M Gopakumar) – The “non-paper” of the Group of Friends of a Pandemic Treaty (Friends of the Treaty) on the principal benefits of a new legally binding international instrument on pandemic preparedness and response is conspicuously silent on Article 19 of the World Health Organization’s Constitution. The non-paper submitted to the Member State Working Group on Strengthening WHO Preparedness and Response to Health Emergencies (WGPR) also does not use the phrase “Pandemic Treaty” or “Pandemic Framework Convention”. Instead, it refers to a “new agreement” indicating an inconsistency between the discussions happening inside and outside the WGPR, and the documents recording those discussions. Article 19 provides the authority to the World Health Assembly (WHA) to adopt conventions or agreements with a two-thirds majority, and such legal instruments will come into force after the ratification by a certain number of Member States, but only to those States which ratifies the Convention. In other words, it provides an “opt in” provision for the Member States. On the other hand, Article 21 of the WHO Constitution provides for adoption of regulations by the WHA and this can be by a simple majority. Such a legal agreement will enter into force without a ratification process. Members must inform the Secretariat if they want to “opt out” of the partial or full provisions of the instrument. Under the Vienna Convention on the Law of Treaties, both these instruments are treaties because they represent legally binding international agreements between States. Within the context of WGPR, a new agreement can take any form of an instrument as provided in Articles 19, 21 and 23 of the WHO Constitution: adoption of a convention under the aegis of the WHO (Article 19), adoption of regulations by the WHA (Article 21), and adoption of recommendations by the WHA (Article 23). Member States express their agreement to all these forms of an instrument either by consensus (the conventional practice) or a vote. The additional step of ratification is specifically required when the instrument is a convention under Article 19. In other words, though both instruments under Articles 19 and 21 bear the same level of legal obligation, Article 19 needs an explicit action from the Member State to undertake the legal obligation while an instrument under Article 21 requires an action from the Member State to opt out from the obligation. This means that an instrument under Article 19 has the risk of developed country Member States using the threat of non-ratification to avoid legally binding obligations on issues such as those on equity thereby reinforcing the status quo. It is surprising that despite the public statements and advocacy for a Pandemic Framework Convention under Article 19, the non-paper of the Friends of the Treaty is silent on Article 19. Earlier, in the first week of May 2021, the Friends of the Treaty had proposed to draft and negotiate a “WHO Framework Convention” on a model similar to the Framework Convention on Tobacco Control, the only other treaty adopted under Article 19 of the WHO Constitution. The non-paper does not indicate a retreat from the proposal though, since the Friends of the Treaty continue to actively promote the idea of a pandemic treaty both inside and outside WGPR. A reference to the framework model of a multilateral treaty and its different features like “permanent conference of parties”, “watershed agreement”, “subsequent protocols” and independent “opt in instruments” were frequently alluded to by the Friends of the Treaty while speaking on a “new instrument” in the so-called “deep dive” sessions (see accompanying article: Uncertainty over nature and content of proposed pandemic treaty even among supporters dated 30 October 2021). The WGPR Bureau’s guiding questions document made it possible for the Member States to speak at WGPR meetings about a new instrument without specifying the form and content of the instrument. Outside the WGPR, the idea of a new pandemic treaty is being actively promoted through parallel tracks. Ambassadors or officials in Geneva are constantly invited to informal meetings, workshops and retreats in which ideas relating to a new treaty are actively promoted. Certain experts from prominent academic institutions in Europe and America, and also from bodies such as the Independent Panel for Pandemic Preparedness and Response, and Global Preparedness and Monitoring Board, are also promoting the idea of a pandemic treaty. Alleged benefits but no risks The non-paper has two categories of potential principal benefits of having a new international agreement:
“Governance and political benefits” are identified as follows:
While the Friends of the Treaty are optimistic of a new instrument breaking the cycle of panic and neglect in order to elevate specific attention to pandemic preparedness, it is almost certain that negotiations of such an instrument would reduce the attention and resources required for health emergency preparedness and response as a whole as well as for the development of functioning health systems. Regarding coherence both in global health architecture and cross-sectoral mobilization, the Friends of the Treaty believe that a new instrument will help in streamlining mechanisms and programmes that presently fragment the international health governance. However, the non-paper and the Friends of the Treaty are yet to agree upon the scope of WHO’s leadership and also regarding the involvement private sector organizations. The Friends of the Treaty further argues that a new opt-in treaty is an inclusive platform for continuing negotiations, but fails to recognize that much of agenda which is charted for a new treaty mechanism, say for example, for a Conference of Parties, can be attained through the WHA. “Practical and technical benefits” are identified as follows:
Unfortunately, except for rapid sharing of pathogens, health information and benefits derived therefrom, there is not even a brief mention of what could possibly be agreed upon as a new norm for realizing those benefits. The non-paper clearly represents a lack of interest in developing pragmatic and sustainable solutions for improving equitable access to health care. Such issues are pushed for the future as clearly seen from the non-paper that states: “A new agreement would be the most appropriate global process to consider and agree how to improve equity in the future.” It must be noted that the non-paper does not specify which form of an international agreement can better attain these alleged 8 benefits. In fact, these benefits can be achieved through an instrument under Article 21 that either amends or revises the International Health Regulations 2005 (IHR) or through any other new instrument such as a supplementary agreement for promoting implementation of specific provisions of the IHR. The non-paper is also silent about risks associated with each type of instrument under Article 19 or 21, When it is almost certain that these benefits can be achieved through a variety of instruments, it is the risks associated with each type of instrument that should guide the discussion. It is doubtful whether a new pandemic treaty can achieve these benefits without attendant risks or by minimizing the risks more efficiently than other instruments. Apart from the risk of non-ratification of a legal instrument under Article 19 by developed countries, a new instrument under Article 19 can cause fragmentation of governance and resources. This would compromise the even implementation of norms and standards on health emergency preparation and response. The reluctance to list the risks compromises an informed discussion.
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