WHO Global Pandemic Treaty

Edward Kwakwa

Assistant Director General, Global Challenges and Partnerships Sector,

World Intellectual Property Organization

2022.09.25

Introduction

1. The COVID-19 pandemic has exposed the unpreparedness of the world to address public health emergencies. However, today, there is hope that this could change in the coming years. Indeed, we are living through a promising time for global health and global governance, in which there is a window of opportunity to completely redesign and establish a new global health architecture.

2. The idea of a pandemic treaty has garnered considerable momentum from the time it was first proposed in 2020 by Chile and the European Council. The idea received endorsement from the Independent Panel on Pandemic Preparedness and Response in 2021 and now in 2022, the Intergovernmental Negotiating Body (INB) commenced negotiations on a draft convention on pandemics following a decision by the World Health Assembly (WHA) in March 2022. It has also since been decided that the pandemic treaty would be a legally binding instrument. This commentary will be predicated on various discussions that have taken place in the WHA and other fora in the global health arena in the last two years, and also touch on examples in history where prevailing health mechanisms under the auspices of the World Health Organization’s (WHO's) International Health Regulations (IHR) have failed to provide authoritative leadership in times of health emergencies. We will discuss the various dynamics around the proposed new pandemic treaty, and consider to what extent compliance with an agreement to harmonize a global response to health threats is possible.

3. It is important to note that the topic of the pandemic treaty falls against difficult geopolitical circumstances. It would be remiss to ignore the impact that the conflict between Russia and Ukraine is having on this discussion, in the sense that it is shifting public attention away from the COVID-19 pandemic. The international community must act swiftly and decisively in order to keep global health high on the political agenda. This commentary seeks to contribute to, and hopefully advance, discussions around the most challenging aspects of the proposed international treaty on pandemics, namely issues around global health governance.

4. This commentary is also rooted in the spirit of the Trilateral Cooperation among the WHO, the World Trade Organization (WTO) and the World Intellectual Property Organization (WIPO) which focuses on the interface between public health, IP and trade issues. It is important to mention this here because intellectual property, trade rules and free trade agreements have important implications on global preparedness and response to pandemics, especially in terms of technology transfer, facilitating access to essential medicines, vaccines and diagnostics.

The fall of the International Health Regulations: When mistakes in history recur

5. There is no better way to set the scene for the forthcoming discussions than to take a brief look at history. While the COVID-19 pandemic has had an unprecedented impact on the world, one might argue that various health outbreaks of the past, including the Middle East respiratory syndrome (MERS), HIV and Ebola should have prepared the global community for the widespread impact of COVID-19. For instance, during the Ebola outbreak in 2014, we saw how unfounded travel bans, purported as a health and safety measure by Australia and Canada against travelers from West Africa, created challenges for the WHO in terms of effectively yielding compliance with the internationally agreed upon IHR, stipulating actions to be taken in case of public health emergencies.

6. The IHR is the only international legal instrument to ensure international cooperation on the prevention, detection and response to cross-border health threats. Article 43 of the IHR requires countries to provide to WHO a public health basis and scientific evidence justifying decisions like travel bans. However, Australia and Canada failed to provide any legally founded justification for their travel ban, which raised questions about the relevance of the IHR. The WHO’s failure to enforce any kind of recourse for non-compliance with the IHR is what exposed the weaknesses of the IHR, leaving it with the reputation it now has.

7. Today in 2022, in the midst of the COVID-19 pandemic, the IHR is still thought to have limited vigor to ensure compliance. There have been several IHR Review Committees that noted how member states do not take the IHR seriously as it has no power to enforce provisions. While there have been cracks in coordination for global health threats in the past, it is the severity of the virus and its widespread transmissibility that highlighted the weakness and exposed the danger of the global health system as it currently is. Many would agree that the main weaknesses in global health governance today relate to compliance and enforcement.

8. It is now well known that WHO member states have decided that the treaty will be legally binding, and potentially have provision for some kind of punitive recourse in cases of non-compliance. The legally binding nature of the treaty could have notable implications on the various actors in the international community. The potential drawbacks on time, deepened polarization and non-compliance due to the binding nature of the instrument should not be understated. A useful illustration of the failure of a binding instrument in multilateralism is seen through UNCTAD’s “Draft International Code of Conduct for the Transfer of Technology” that attempted to make technology transfer mandatory. It was at a deadlock in negotiations for over 10 years. The potential risk in proposing a binding treaty is therefore apparent.

9. The only legally binding instruments in the WHO are the Framework Convention on Tobacco Control which has 182 parties, as well as the IHR, which has 196 states party to it. The widespread ratification of these instruments speaks to the success of anti-tobacco lobbies and international rallying around infectious diseases ravaging Europe respectively.

10. When one considers why countries might refuse to comply with a global agreement on a public health matter, even one concerning all of humanity, what comes to mind is the notion of sovereignty and the extent to which it would be diminished by an authoritative instrument on pandemics under the auspices of the WHO. If this pandemic treaty is to succeed, we have to be flexible enough to forgo some state sovereignty in order to make way for a global enforcement and compliance mechanism. If we understand that all states are inherently self-interested, it may be assumed that states will need to have some kind of incentive in order to adopt the treaty. It is therefore important to think about compliance much more broadly than has traditionally been the case. Compliance has traditionally been seen as a model of force rather than a model of incentives. Success and acceptance of the pandemic treaty will be dependent on the extent to which countries see the benefit of adopting it. An interesting aspect of the COVID-19 pandemic is that it has exposed the power of non-state actors like the pharmaceutical industry. It became clear during the current pandemic that health and technology endeavors are owned by private entities and governments struggle to force companies to share their knowledge and intangible assets.

Towards a new pandemic treaty: Where do the biggest opportunities lie?

11. There are high hopes and expectations around the future pandemic treaty but it remains to be seen how it will turn out and how countries and actors will respond to it. Let us nevertheless consider areas that will be interesting to keep an eye on, which may also be where the greatest opportunities lie. First, the legal architecture of the treaty is perhaps one of the most critical aspects that will require careful strategic consideration. Having legal clarity with common rules that apply to all member states, obliging certain actions will be paramount to the success of a global plan for pandemics. An important part of securing legal clarity is language and semantics of provisions. What we ought to look out for is stronger language like “shall” or “must”. It is also notable how the word pandemic does not feature at all in the IHR. This is expected to change in the new pandemic treaty.

12. What will be important to consider as experts develop a future instrument to coordinate pandemic response is the focus areas of the proposed pandemic treaty. Currently, the proposed instrument focuses on preparedness, prevention, response and resilience. However, based on discussions so far, it is clear that various other thematic areas will be relevant to this pandemic treaty that cannot be addressed by the health sector alone. There will need to be provisions for other areas including intellectual property rights and trade. The WTO Ministerial Conference 12 made progress on a decision to waive IP on vaccines during times of public health emergencies (see Edward Kwakwa, WTO’s MC12 decision on the TRIPS waiver, 2022.09.14, in: Global Health and Global Governance, https://www.bigghgg.cn/p/kwakwa.html). There probably ought to be diplomatic negotiations on the interface between public health, trade and IP in the context of pandemics. This will ensure that outcomes are as comprehensive as possible.

13. Also relevant are the broader innovation policies like education, research and development, infrastructure, finance and foreign investment. Social innovation (new structures and systems of governance) will be needed in the space of global health governance to formulate institutional arrangements that are better suited to the delicate task of coordinating health threats. Discussions on the pandemic treaty touch on areas of early warning systems, risk assessment, and mobilization of financial resources for pandemic response. As we develop this pandemic treaty, let us also consider how to mitigate potentially harmful human behaviors and promote sustainable practices.

Foreseeable challenges for the future WHO pandemic treaty

14. As experts and policy makers endeavor to develop a sound document to coordinate pandemic preparedness and response across the world, there are various issues that they will need to consider carefully in order to avoid repeating mistakes of the past or making new ones, given new dynamics at play. These are discussed here briefly. The first foreseeable challenge for the Pandemic Treaty relates to the expected time that it will take to reach completion. While the proposed pandemic treaty offers hope for guidance on how to handle future pandemics, the timeline for this is rather protracted. The INB is currently discussing and drafting the document. The first INB gathering took place in March 2022, the second in July and the third is set to take place in December 2022. With progress on the draft expected to be shared, however, the earliest we may see any kind of legal instrument being adopted is 2024. During this time, people continue to lose their lives to COVID-19.

15. Another challenge for the future pandemic treaty is related to communication. If we look at the obligations of the international community to report on public emergencies, there has to be capacity to report on global health threats from the local level to the national level. This is important because it is national governments that hold obligations under international law. For instance, they are required to assess reports received within 48 hours under article 6 of the IHR and, if it is a potential public health emergency, within 24 hours, report it to the WHO. Where avenues for communication between civil society and government are poor, the time it takes to relay information about identified threats can be rather protracted. This is where we start to see some of the nuance in compliance in the early stages.

16. Moreover, a potential problem lies in the threshold for adequate actions during a pandemic versus the extent to which countries are able to deliver on them. An example from Article 4 of the IHR, which may be made binding in the new instrument is the obligation that there be local capacity to detect health outbreaks that could be of global concern. The problem is that different countries have different levels of capacity and may not have even the core capacities like communication systems in place in order to be prepared for a health threat.  It is important to consider geopolitical power dynamics throughout the development of the pandemic treaty because there has been considerable geopolitical polarization around this topic, especially between developed and developing counties. There are mixed reviews on the idea of a legally binding pandemic treaty, with some arguing that the pandemic treaty may become a tool for powerful countries to exhibit control and coerce compliance against countries with lower capacities for compliance.  

17. In addition, it is necessary to acknowledge that there are some regions that have been disproportionately affected by COVID-19 and inequities have been quite significant.  There is a risk that the pandemic treaty could exacerbate certain inequalities and create stigma against people from the country where the disease is said to originate. During the height of the COVID-19 pandemic, travel restrictions were widely imposed on China. South Africa then faced a similar fate after notifying WHO of the Omicron variant. There was widespread opposition to this response because South Africa simply complied with IHR requirements to notify WHO of an identified public health threat, and yet was punished for it. Thus, a foreseeable challenge will be the unknown unilateral decisions of some countries to negatively respond to countries that notify of threats as they should. If not, notifying will become a major disincentive.

18. The IHR is mostly focused on the early stage of a health emergency, at the time of the outbreak and details the expected procedure of notifying the world of the public health threat. The IHR also requires that the measures put in place by countries to control and contain the health threat are not overly stringent and restrictive, such as travel and trade restrictions. If a country imposes a measure that significantly interrupts international travel or trade, including a travel ban, that country is required to provide WHO with the public health basis for the decision and the scientific evidence of it. The WHO keeps track of such notifications accompanied by scientific evidence but this information is not made public. There are two sides that one should note when considering the possible impact of making this information public. On the one hand, making notifications by countries public could be helpful to publicly demonstrate the nuances of compliance and non-compliance of the IHR, and serve as a powerful normative tool to highlight good practices from countries who follow the IHR guidelines effectively and incentivize others to do the same. On the other hand, we have seen in recent times how compliance with the IHR’s notification requirement can become a disincentive, particularly as it relates to recourse from countries through travel and trade restrictions. This dichotomy of incentives and disincentives to notify of a public health threat will require considerable attention as the global community prepares for future pandemics.

19. Lastly, we cannot ignore the potential challenges that could be posed by non-state actors. There is a degree of risk in categorizing pandemic preparedness and response in the areas of public policy. Other actors like pharmaceutical companies have revealed the extent of their political power during the COVID-19 pandemic and particularly in relation to issues around access to vaccines. Commitments of governments by way of the new pandemic treaty may face obstacles from the private sector because health technologies and innovations are normally privately owned and government cannot impose or coerce the private sector into making their IP-protected goods publicly available, a provision found in article 66.2 of the TRIPS Agreement. If not carefully managed, all the points raised here can pose considerable challenges throughout the development of the new pandemic treaty.

Conclusion

20. In conclusion, while there is a history of failed attempts to comprehensively coordinate response to global health threats, the current COVID-19 pandemic offers a unique window of opportunity to restore the social contract that WHO had with the international community, to be able to yield compliance on internationally agreed upon common rules and regulations for global health threats. IP and trade issues will need to be given considerably more attention in forthcoming iterations of the pandemic treaty, as IP issues around access to vaccines and health technologies are a major aspect of pandemic response. While it is difficult to predict what member states will commit to by the 2024 deadline for the draft pandemic treaty, this process presents a huge opportunity for the global health architecture at large. We must learn from and implement the lessons of previous global health crises like MERS, HIV and Ebola. It is up to governments, the private sector, academia, and civil society to maintain the momentum to develop a global guideline to better equip the world for future pandemics, making sure that all voices are heard in this process and to avoid history repeating itself.

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Notes about the author

Edward Kwakwa is Assistant Director General, Global Challenges and Partnerships Sector, World Intellectual Property Organization (WIPO) in Geneva.  He served as General Counsel at WIPO from 2004 until September 2016. Kwakwa holds an LL.B. degree from the University of Ghana, an LL.M. from Queen’s University in Canada, and an LL.M. and a J.S.D. from Yale Law School in the U.S.A. Before joining WIPO, Kwakwa practiced corporate and international trade law and investment with the law firm of O’Melveny and Myers in Washington, D.C. He also worked as International Legal Adviser at the Commission on Global Governance in Geneva, as Senior Legal Adviser at the Office of the United Nations High Commissioner for Refugees (UNHCR), and as Legal Affairs Officer at the World Trade Organization (WTO). His publications include four books and numerous articles on international law.

In September 2011, he was elected as an Associate Member of the Institut de Droit International, and became a full Member in September 2017.  He served from 2001 to 2004 on the Executive Council of the American Society of International Law (ASIL), from 2012 to 2015 as Counselor of the ASIL, and as Vice President of the ASIL from 2015 to 2017. He is Adjunct Professor of Law at the Graduate Institute of International and Development Studies in Geneva, and has been an Adjunct/Visiting Professor of Law at the Fletcher School of Law and Diplomacy, the University of Denver College of Law, and the University of Pretoria, South Africa, where he has been appointed as an Extraordinary Professor in Law.