Pandemic Treaty/new international instrument
- Work in progress.
- World Health Assembly (WHA) of the World Health Organization (WHO).
- Not applicable.
The Covid-19 pandemic demonstrates how the current international framework, including the International Health Regulations, falls short in prevention and control of public health emergencies of international concern. In response, global leaders and international agencies called for a new international instrument for strengthening preparedness and response to those emergencies. The objective is to build a more robust global health architecture that will protect future generations, enhancing the surveillance of and resilience to health threats, access to medical products, mutual trust between countries, and implementation of countermeasures.
At a special session of the WHA in November/December 2021, WHO member states decided to establish an intergovernmental negotiating body (INB) to identify substantive elements and develop a working draft of a new international legal instrument (before 1 August 2022), referred to as ‘Pandemic Treaty’.
- Can strengthen political commitment by involving the highest level of global governance.
- Broadens the scope of pandemic preparedness and response beyond the health sector.
- Through provisions on conditions to public funding for health innovations, the instrument can contribute positively to for instance global production capacity and equal distribution of these products, and thus enhance global access.
- Can fill gaps in the current legal framework, for instance on how intellectual property rights for medical products would apply during public health emergencies of international concern.
- Can adopt an approach to funding for pandemic preparedness and response that is more equitable, predictable and sustainable, and draws from a multilateral facility to which all countries contribute based on an agreed ‘ability to pay’ formula, with allocations based on need.
- Lengthy negotiations with an uncertain outcome.
- It is particularly difficult for resource-limited countries to engage in negotiations whilst they are combatting the effects of the current pandemic.
- Negotiations on a new instrument turn attention away from urgent issues, such as the quest for equal access to health and the TRIPS Waiver discussions.
- If a number of countries refrain from ratifying the instrument, it would not be applicable to all, which diminishes the purpose of the instrument.
- Risk of further fragmentation of the international governance system, which can lead to less effective outbreak-management.
- Risk of a weak instrument that does not address all relevant matters, e.g. potential lack of provisions on equity and sharing of data, know-how and intellectual property regarding medical products.
- Risk of incoherence with the International Health Regulations, leading to confusion and conflicting conceptions.
- Enforcement requires political will, which is not apparent everywhere.
In our analysis of a new instrument for pandemic preparedness and response, we distinguish between the process and the content. Regarding the first, the instrument should be based on a truly multilateral and transparent process that involves civil society voices. However, some countries are preoccupied fighting the current pandemic, which affects their ability to participate in the negotiations. Additionally, in the first months of the process, effective engagement of civil society has been limited.
Member states should review the modalities for engagement, including through lifting the requirement of official relation status with WHO to participate in the INB, and facilitate opportunities for a representative range of civil society and community-based organisations to participate fully in all INB meetings. Moreover, to ensure inclusivity, the process should not be hurried.
The negotiations will be lengthy, but reforms are needed urgently to effectively respond to the current and future pandemics. These are reforms in areas such as finance, intellectual property rights, and transfer of know-how and technology for key medical products. It is important that these reforms are not stalled in the Pandemic Treaty process, but are soon addressed in other policy processes, e.g. at the United Nations and World Trade Organization.
In relation to the content of the Pandemic Treaty, an advantage of this newly established pandemic preparedness instrument is the broader scope it could encompass. It can accommodate recognized omissions of the current framework and include agreements with relation to equity, equality, health systems strengthening, trade (and intellectual property), and the One Health approach (recognizing the interconnection between the health of humans, animals and our environment).
A successful new instrument should be strongly rooted in a human rights approach, enshrine an approach to funding that is fair and sustainable, and include provisions that diminish health risks globally and magnify equal access to medical products.
Among them we recommend clauses on conditions to public funding for the research and development (R&D) of medical products, technology transfer to maximise production capacity, transparency regarding pricing, and options to remove intellectual property barriers to ensure the instrument has optimal impact. It should adopt an approach to funding for pandemic preparedness and response that is based on fair share financing where countries contribute according to ability to pay and allocations are based on need.
As mentioned above, reforms in these areas are urgent, and countries must not postpone action. These reforms can and must be tackled sooner rather than later, and can be supported in due time by this new international instrument.