One critical question in the ongoing discussions for an international instrument to deal with future pandemics is to gain clarity on what the issues are that a treaty under Article 19 of the WHO Constitution (WHOC) could resolve beyond the scope of the IHR (2005).¹ We think these issues could be categorised into five groups: political, legal, institutional, multisectoral, and topical (subject-based).

From a political perspective, a treaty would attract the much-needed attention and commitment from the highest levels of state and government, unlike the IHR, which are mostly viewed from a technical perspective. A treaty would also trigger high-level state response—not from the health ministry alone—in cases related to compliance.     

From a legal perspective, international treaties are gradually translated into national laws in most legal systems following the treaty’s ratification. As regulations don’t require ratification, this parliamentary mechanism is perceived as less important (and indeed far less utilized) in the case of the IHR.

From an institutional perspective, a treaty would allow a dedicated governing body—a Conference of the Parties—to continuously review and resolve evolving matters, something not readily available under the IHR (2005) as these are governed by the World Health Assembly, a body of universal, not specialised, mandate.

From a multisectoral perspective, the ratification and subsequent introduction of a treaty into a country’s national laws creates a binding framework for all relevant sectors and the government as-a-whole. This mechanism is not evident in the case of the IHR (2005), as it is largely considered to be in the health sector’s domain to implement it.

From a subject-area perspective, issues that a treaty could resolve would be those that do not reasonably fall under the scope of Article 21 of the WHOC for Regulations, which is the only other type of binding instrument that the WHO can use. Furthermore, some of these issues are partly regulated by other multilateral treaties, therefore synergy with these, and possible adaptions, may need to be considered.

A pandemic treaty could create the necessary linkages for all these treaties, to which all or a large number of WHO’s Member States are party to. This would be an easier and more coherent approach (and likely of interagency interest given the global multisectoral challenge) compared to amending the existing treaties to accommodate the pandemic context.

We identify several such issues, albeit attracting different levels of attention so far.

Reducing zoonotic risk in line with One Health: We think this critical task cannot be satisfactorily achieved through the interagency cooperation provisions of Article 14 of the IHR (2005), nor would it reasonably fall under the scope of Article 21 of the WHOC. Interagency cooperation would require tools commensurate to the magnitude of the challenge. Legal regimes linked to the work of WHO’s One Health partners² in areas of wild-life trade, biodiversity, and land use, lack a health purpose.^3-5 A pandemic treaty could fill that gap. It could also establish a legal umbrella for the closely linked issues of pandemic risk intelligence and assessments.

Access and benefit-sharing: A pandemic treaty would build on and go further than existing international instruments on access and benefit-sharing. It could place measures contained in the Nagoya Protocol into a pandemic context, including covering genetic sequencing data in addition to pathogens.⁶ It could also go beyond the scope of the WHO’s PIP Framework to cover all pandemic pathogens, not only influenza.⁷ A pandemic treaty embracing access and benefit sharing would be in the spirit of Article 4.4 of the Nagoya Protocol which states that the Protocol will not apply to genetic resources covered by specialized international instruments, thus preventing conflict between the treaty and the Nagoya Protocol. An alternative approach, which has been discussed, might be to adopt an access and benefit-sharing annex to the IHR (2005). In our view, synergies between the different instruments might be more difficult to achieve in the latter scenario as we recently explained elsewhere.⁸

Supply and equitable access to vaccines and other essential technologies: This aspect is often discussed in connection with Article 44 of the IHR (2005) on collaboration and assistance. Scholars noted the general character of this article and the need to either revise or negotiate a subsequent agreement regarding its implementation.⁹ While some aspects, for example mechanisms for information sharing or mobilizing financial resources, could indeed be specified in an amended IHR, the core measures around securing the global supply chain and ensuring equitable access wouldn’t fall under Article 21 of the WHOC, and would, in addition, require complex synergies with the exiting trade and IP law. Key issues such as trial and approval requirements, granting licenses, technology transfers, export restrictions, international stockpiles, guaranteed pooled procurements, and large up-front financing, would require rules negotiated and ratified with the participation of (and the ensuing adherence by) the relevant sectors.

Preparedness of health services beyond public health capacities: Preparing hospital and other healthcare services for pandemics may be as important as strengthening surveillance and public health capacities. This would likely be outside of the scope of Article 21. The proposed treaty could establish minimal requirements for national healthcare capacities as part of pandemic preparedness, by analogy with the core public health capacities required by the IHR (2005). The treaty could also cover mutual assistance; a frequent feature in international emergency law. It would include, at a minimum, the right (in some people’s opinions; an obligation) of a Party to request assistance in times of crisis when the harm caused drastically exceeds its national capacity.

Social and economic countermeasures: Should countries decide to address this peculiar aspect of pandemic response, not least to strengthen adherence to public health measures and minimize the impact of social and economic disruptions on national health outcomes, some international instruments, and particularly the Sendai Framework, provide valuable examples in addressing health and people’s livelihoods during an emergency.¹⁰

Stronger mechanisms for compliance: The proposed periodic universal peer reviews under the IHR (2005) would primarily help assess preparedness. Assessing response, and work on prevention, would require more robust arrangements. Countries thus might consider further mechanisms, such as external reviews, independent verifications, site visits and investigations, available under other multilateral treaties.

Legal back up to global financing: Proposals for a global financial mechanism currently on the table point to an exceptional scale and nature of pandemic financing. Linking it to the IHR (2005), an “all-hazards” instrument, would therefore miss the purpose. Grounding the global financial mechanism in a specialized instrument such as the prospective treaty, or creating effective linkages between the two, might be the options to look at. Solutions found in some other areas, such as a financial mechanism within a treaty architecture, external to it, or both, could potentially inform the discussions.

Addressing global mobility: This may cover measures commensurate to pandemic circumstances and above what is already in the IHR (2005). Rules might aim at coherent approaches to travel and border restrictions, travel certificates, matters related to private operators, etc. Although possible in principle, leaving these issues to amendments to the IHR (2005) may not ensure that travel and other measures are synchronized in time for when a pandemic strikes.

Introducing clarity and triggers on an event of pandemic potential: The treaty should define the term “pandemic” (also possible via amending the IHR (2005), and establish the procedure for declaring a public health emergency of pandemic potential. The latter would seem impractical under a (potentially) revised IHR (2005) as such procedure will need to be organically linked with other relevant provisions of the treaty.

The scope of this article is limited to issues that a new treaty could resolve beyond the scope of the existing IHR (2005). The treaty would also set clear principles for pandemic preparedness and response, and would embrace cross-cutting issues such as human rights. It may also cover other substantive issues depending on whether the IHR (2005) is revised in parallel. The Regulations, meanwhile, would remain central to non- or pre-pandemic outbreaks and other events of international spread of disease. Consequently, a revision of the IHR (2005) in parallel might still be cogent to rectify their weaknesses in such events.

In summary, the treaty could be complementary to, and not necessarily replace or overlap the IHR (2005). The treaty’s proposed prevention dimension is absent or marginal in the IHR; its preparedness measures might only touch domains not covered by the IHR (e.g. health service capacities beyond public health, pre-negotiated arrangements for the development and supply of vaccines and other essential goods, etc.); and its response measures would unfold only when the event is declared to have reached a pandemic potential (“one instrument at a time” during an event). A treaty on pandemics would be an expression of true political will to act collectively after the greatest global crisis of the past decades.

Haik Nikogosian and Ilona Kickbusch are co-chairs of the project on a pandemic treaty located at the Global Health Centre, the Graduate Institute of International and Development Studies, Geneva. 

Competing interests: none declared. 

This article is part of a special collection of articles on a global pandemic treaty. The collection is published in cooperation with, and with funding support from, a research project at the Global Health Centre, Graduate Institute, Geneva.

References

1. International Health Regulations (2005). World Health Organization.
2. Food and Agricultural Organization of the United Nations;  World Organization for Animal Health; United Nations Environment Program.
3. Convention on International Trade in Endangered Species of Wild Fauna and Flora.
4. Convention on Biological Diversity.
5. United Nations Convention to Combat Desertification.
6. The Nagoya Protocol  on Access to Genetic Resources and the Fair and Equitable Sharing of Benefits Arising from their Utilization to the Convention in Biological Diversity.
7. Pandemic Influenza Preparedness Framework for the sharing of influenza viruses and access to vaccines and other benefits
8. A Guide to a Pandemic Treaty, section 27.
9. The Stellenbosch Consensus on the International Legal Obligation to Collaborate and Assist in Addressing Pandemics. Clarifying Article 44 of the International Health Regulations. International Organizations Law Review (2020), 1-30.
10. Sendai Framework for Disaster Risk Reduction 2015-2030.