by Nithin Ramakrishnan and K M Gopakumar.*
The article was originally published in TWN Info Service on Health Issues on 27 May 2021.
The new draft decision on a so-called “pandemic treaty” proposes a special session of the World Health Assembly (WHA) in November to take a decision on the establishment of an intergovernmental process to negotiate a new agreement.
The new draft decision dated 25 May, which is published as a WHA conference paper (A74/A/Conf./7) is the result of several rounds of informal talks over the last ten days, with strong push back from the United States, Brazil and Russia to the initial draft.
[The title of the draft decision is “Special session of the World Health Assembly to consider developing a WHO convention, agreement or other international instrument on pandemic preparedness and response”. It deals with future pandemics and not the current one where intergovernmental cooperation and solidarity are still very inadequate.]
The initial draft decision text had proposed a decision from the 74th WHA, which is currently in progress (24 May to 1 June), to immediately establish an intergovernmental process to begin negotiations.
The new draft from the European Union-led proponents of the treaty now calls for a WHA special session to examine the merits of “developing WHO convention, agreement or other international instrument on pandemic preparedness and response”.
This version has managed to get the support of the United States. Albania, Australia, Azerbaijan, Canada, Chile, Costa Rica, Dominican Republic, Egypt, Fiji, Georgia, Iceland, Indonesia, Kenya, Montenegro, Norway, Paraguay, Philippines, Qatar, Republic of Korea, Republic of Moldova, Rwanda, Senegal, South Africa, Sudan, Thailand, Tunisia, Turkey, Ukraine, United Arab Emirates, United Kingdom of Great Britain and Northern Ireland, Uruguay are also sponsoring this draft at WHA74.
The first operational paragraph (OP) of the draft decision reads: “to request the Member States Working Group on Strengthening WHO Preparedness and Response to Health Emergencies to prioritize the assessment of the benefits of developing a WHO convention, agreement or other international instrument on pandemic preparedness and response and to provide a report to be considered at the special session of the Health Assembly (in November 2021) referred to in paragraph OP1.2 of this decision.”
This Member States Working Group does not exist yet. It is to be set up only at WHA74 in a separate resolution to be adopted, titled Strengthening WHO Preparedness for and Response to Health Emergencies (A74/A/Conf./2) which proposes to establish a Member States Working Group on Strengthening WHO preparedness and response to health emergencies. This is an initiative that preceded the treaty idea, aimed to strengthen the preparedness and response capacity of WHO and Member States to health emergencies including pandemics.
This Working Group is “to consider the findings and recommendations of the Independent Panel for Pandemic Preparedness and Response, the IHR Review Committee and the Independent Oversight and Advisory Committee for the WHO Health Emergencies Programme”, taking into account relevant WHO work including WHA resolution 73.1 and the decision of the 148th Session of the Executive Board adopted in 2020. The Working Group is also to consider the work of other relevant bodies, organisations, non-state actors as well as any other relevant information.
The Working Group process is to include regional consultations to be finalized by end of June 2021, submission of a report with proposed actions to WHA75 in 2022.
However, Operational Paragraph (OP) 1.2 of draft decision A74/A/Conf./7 in calling for a special session of the WHA in November 2021 clearly prejudges the outcome of the Working Group process even before its work starts. The intention of the proponents is to have the single-agenda item special session on establishing an intergovernmental process to negotiate a new pandemic instrument. Thus while the proposed special session is to take into account the report of the Working Group, the latter is already effectively directed to make recommendations regarding the future course of action on the establishment of a new international instrument.
[OP 1.2 reads: “To request the Director General to convene a special session of the World Health Assembly in November 2021, and to include on the agenda of the special session only one item dedicated to considering the benefits of developing a WHO convention, agreement or other international instrument on pandemic preparedness and response with a view towards the establishment of an intergovernmental process to draft and negotiate such convention, agreement or other international instrument on pandemic preparedness and response, taking into account the report of the Working Group on Strengthening WHO Preparedness and Response to Health Emergencies”.]
Further, the nature of the phrase “other international instrument” in the draft decision is not clear. It may be inserted to purposely avoid the focus on “international regulations” or “amendments to international health regulations (IHR)” which may be be adopted under Article 21 of WHO’s Constitution. While both the other terms ‘convention’ and ‘agreement’ are found within Article 19 of the WHO’s Constitution, the phrase “other international instrument” is neither borrowed from Article 19 or Article 21, which are the two provisions allowing WHO to adopt international legal instruments.
[Article 19 allows Member States acting as WHA to adopt a convention on any matter within the competence of the WHO. Article 21 allows WHA to adopt regulations in specified areas, among which is the prevention of international spread of disease.]
Though no explicit reference is made to IHR in the draft decision, almost every country that spoke at the ongoing WHA74 on 25th and 26th May referred to IHR, in one way or another. Countries both supporting and opposing the proposed pandemic treaty have called for serious strengthening of IHR, both by way of reforms and also by way of clarity of interpretation. However, the mandates for the proposed Working Group and special session of the WHA do not include a reference to IHR.
The United States, for example, suggested “to reform and modernize our existing institutions, in rendering them both agile and fit for purpose… in doing so we must be remembering that these instruments are only strong as the commitment of Member States.”
Russia on the other hand focussed on building national capacities within IHR. The delegate said, “… we think that it is clearly important to enhance the role of National Focal Points under IHR to support national capacity and laboratory infrastructure/networks …”
Saudi Arabia, speaking on behalf of the Middle East Group, most importantly recognized that a number of requirements under IHR enables us to improve steps taken to contain pandemics and called for strengthening these mechanisms under the IHR, which already exists.
Slovakia also called for better clarity on the application of the Article 43 and 44 of the IHR.
Prof Lothar H. Wieler, IHR Review Committee Member, and the President of the Robert Koch Institute, Germany reportedly said, “IHR is the legal instrument for Member States and they should bring it into life”.
However, the draft decision does not reflect this shared stance of many Member States about the relevance of IHR. The conspicuous absence of IHR in the draft decision calling for the special session raises suspicion that those determined to go ahead with the proposed new international legal agreement intend to preclude a “no treaty” outcome.
The FAQ circulated by the Friends of the Pandemic Treaty, a group of WHO Member States advocating for the establishment of the new agreement, clarified their perspective on the coexistence of IHR with the proposed treaty, which raises concerns of fragmentation of the health emergency regime.
The Canadian delegation at WHA74 has warned against any such inadvertent fragmentation, stressing that “it is critical that the system we build is coordinated, cohesive, and efficient and the decisions do not result unintentionally in further fragmentation. New instruments must be well thought out and must be in line with existing mechanisms such as IHR”.
The incongruity is emphasised if we look at the WHA draft resolution (A74/A/Conf./2) to establish the Working Group which asks Member States and the WHO Secretariat to strengthen the implementation of IHR, and this same Working Group is also tasked to make recommendations to a “single agenda item” special session of WHA. That dedicated single agenda item for “considering the benefits” of developing a new instrument with a view towards establishment of an intergovernmental process for drafting and negotiating an instrument is precisely the issue that raises concerns.
The Russian delegate’s remarks at WHA74 clearly summarize the concern: “[The] pandemic is not yet over. There is still a great deal to be done. And only once Covid has been defeated, it will be appropriate for us to consider fundamental changes to the way WHO works and new treaties or conventions. We must understand why the instruments we have are not working. Is the problem with the instruments themselves? Or the way they have been used? Only a multifaceted analysis involving all States could allow us to draw conclusions to that and to develop future health architecture.”
The draft decision sets the special session dates for 29th November to 1 December to be held at the WHO headquarters in Geneva, either in person or virtually, depending upon limitations that may preclude physical meetings. (The normal procedure is for the Executive Board to determine the dates and place in accordance with Rule 2 of the Rules of Procedures of WHA.)
The draft also uses Rule 122 to suspend the requirement that the Director General needs to convene a special session of the WHA within 90 days of receiving such a request.
*(With inputs from the People’s Health Movement’s WHO Watch Team.)