Before a formal process for a pandemic treaty begins, Haik Nikogosian and Ilona Kickbusch, consider how this will tie in with existing regulations

Discussions on a proposed pandemic treaty are accelerating ahead of the World Health Assembly. 

To contribute to these discussions we reviewed the rationale, options, scope, type, and process for a pandemic treaty. [1,2] Other recent publications focused on the relations of a future treaty with public health security, geopolitics, the needs of developing countries, human rights, newer institutions, and one health. [3-8]

One key aspect however—the relationship between a pandemic treaty and the existing International Health Regulations (IHR 2005)—still remains unclear. The IHR were adopted by the World Assembly in 1969 and last revised in 2005, with the task to “prevent, protect against, control, and provide a public health response to the international spread of disease…” Four issues, in our view, will require particular attention before the start—or at least in an early stage—of negotiations of the proposed pandemic treaty. 

Firstly, some key weaknesses of the IHR in relation to preventing and controlling a pandemic, have been emphasised in the three formal reports released ahead of the upcoming WHA. [9-11] The proposed pandemic treaty should be the right place to address some of those weaknesses, for example in relation to independent verification, monitoring, and compliance. Trying to revise the IHR would be a long process and take several years, as the previous revision showed.There could be potentially unpredictable outcomes once the IHR is reopened for discussion. In addition, any amendment made to the IHR will enter into force only two years after its adoption. A world in crisis cannot afford to wait this long. 

Secondly, Art 57 of the IHR provides legal space for concluding “special treaties and arrangements in order to facilitate the application of the Regulations.” We would like to note however that applying this provision as the principal rationale of the proposed pandemic treaty would lead to a narrow scope and interpretation of such treaty. In our view, the principal aim of a pandemic treaty should be to go beyond, rather than merely facilitate the application of IHR. The treaty should therefore be developed primarily under Art 19 of the WHO Constitution empowering the WHA to adopt conventions and agreements on matters of competence of WHO. The pandemic treaty could contain a preambular reference to Art 57 of IHR to underline links and complementary elements between the two. The treaty could also contain a substantive article or an optional protocol giving the treaty force to relevant provisions of the regulations. 

Thirdly, clarity is required as to the central role of the IHR for the prevention and control of international spread of disease once the proposed treaty is adopted. In our view this must remain in place, but not in relation to pandemics. The “all hazards” approach of the IHR is well suited for most causes and events of international spread of disease. 

Pandemics however are special in their speed, length, and the magnitude of spread, which requires a dedicated instrument—hence the current move for a treaty.  The treaty should overtake the IHR once the international spread of disease reaches pandemic potential and is formally declared as such. The criteria and modalities of declaring a public health emergency of pandemic potential (not merely of international concern as in the current IHR), should therefore be a core provision of the future treaty, with further measures “triggered” to prevent the event reaching pandemic proportion, and to respond should prevention and containment fail.  

Fourth, provisions in the pandemic treaty should without doubt go beyond those currently in the IHR. But how far? Some of the shortcomings of the IHR, such as in relation to independent verifications, inspections, monitoring, enforcement, and compliance, along with ambiguities in relation to travel restrictions, would obviously be one important cluster of issues to cover. Measures should also go beyond the current scope of IHR to cover the production and supply of vaccines, diagnostics, and treatments; sharing of pathogens and genetic sentences; transfer of knowledge, research, and technology; links to zoonotic risks and one health; and financial mechanisms—as most reports recommend. However, we think it will be equally important to also cover the capacity of healthcare sectors in pandemics, including urgent international assistance should it be required. Further, social and economic disruptions and countermeasures need to be addressed, not least because of their critical impact on health. Alignment with broader disaster risk reduction measures will also need attention. [12] As the Independent Panel noted, international action needs to be made up “by redressing the interlocking impacts of the pandemic in health, livelihoods, and inequality.” [11] The IHR addresses the first component of it, although not in full. The pandemic treaty needs to address all three.

The proposed pandemic treaty should be complementary to, not replacing (or repeating measures already in), the IHR. The treaty should aim at not only the shortcomings of IHR revealed during the covid-19 response, but also measures much beyond the current scope of the IHR. It should address some of the systemic failures of the present system. The IHR, in turn, should maintain—and be strongly supported to do so—their central role in preventing and controlling the international spread of disease. They would then “hand” this role to the future treaty once such spread is formally declared as having reached a pandemic potential.

Haik Nikogosian, senior fellow, Global Health Centre at the Graduate Institute of International and Development Studies, Geneva, Switzerland

Ilona Kickbusch, founder, Global Health Centre at the Graduate Institute of International and Development Studies, Geneva, Switzerland

Competing interests: none declared.

References:

1. Nikogosian H., Kickbusch I. The case for an international pandemic treaty. The British Medical Journal 2021; 372:n527 (25 Feb 2021) 
2. Nikogosian H., Kickbusch I. A pandemic treaty: where are we now that the leaders have spoken? The British Medical Journal 372 (26 April, 2021): BMJ Opinion 
3. Duff J., Liu A., Saavedra J. et. al. A global public health convention for the 21st century et al. The Lancet Public Health, online, May 05, 2021
4. Moon S., Kickbusch I. A pandemic treaty for a fragmented global polity. The Lancet Public Health, online, May 05, 2021
5. Velasquez G., Syam N. A new WHO international treaty on pandemic preparedness and response: can it address the needs of the Global South? Policy Brief, South Center, no. 93, May 2021
6. Davis S. (on behalf of signatories) An international pandemic treaty must centre on human rights. The British Medical Journal May 10, 2021, BMJ Opinion 
7. Lopes H., Middleton J. What we should ask of a new global treaty for pandemic preparedness? The British Medical Journal, April 26, 2021, BMJ Opinion 
8. Vinuales J., Moon S., Le Moli G. et al. A global pandemic treaty should aim for deep prevention. The Lancet, online, April 28, 2021
9. Report of the Independent Oversight and Advisory Committee for the WHO Health Emergencies Program (May 2021). https://apps.who.int/gb/ebwha/pdf_files/WHA74/A74_16-en.pdf
10.  Report of the Review Committee on the functioning of the International Health Regulations (2005) during the COVID-19 response (May 2021) https://apps.who.int/gb/ebwha/pdf_files/WHA74/A74_9Add1-en.pdf
11. Main report of the Independent Panel for Pandemic Preparedness and Response (May 2021) https://theindependentpanel.org/wp-content/uploads/2021/05/COVID-19-Make-it-the-Last-Pandemic_final.pdf
12. Sendai Framework for Disaster Risk Reduction 2015-2030. https://www.undrr.org/publication/sendai-framework-disaster-risk-reduction-2015-2030