After two weeks of intense negotiations, member states of the World Health Organization (WHO) have finally agreed to compromise text on a decision (The World Together: Establishment of an intergovernmental negotiating body to strengthen pandemic prevention, preparedness and response, SSA2/CONF./1) on Sunday, 28 November 2021. This decision is expected to be adopted by the Second special session of the World Health Assembly (29 November 2021 to 1 December 2021). This WHO draft decision has 114 co-sponsors including: Albania, Argentina, Australia, Bangladesh, Brazil, Canada, Chile, Colombia, Costa Rica, Dominican Republic, Ecuador, Egypt, Fiji, Georgia, Iceland, India, Indonesia, Israel, Japan, Member States of the African Group, Member States of the European Union, Mexico, Monaco, Montenegro, Nepal, New Zealand, Norway, Pakistan, Panama, Paraguay, Peru, Republic of Korea, Republic of Moldova, Serbia, Singapore, Switzerland, Thailand, Trinidad and Tobago, Tunisia, Turkey, Ukraine, United Kingdom of Great Britain and Northern Ireland, United States of America, Uruguay and Vanuatu.
The decision empowers WHO to
to establish, in accordance with Rule 41 of its Rules of Procedure, an intergovernmental negotiating body open to all Member States and Associate Members (the “INB”) to draft and negotiate a WHO convention, agreement or other international instrument on pandemic prevention, preparedness and response, with a view to adoption under Article 19, or under other provisions of the WHO Constitution as may be deemed appropriate by the INB. (SSA2/CONF./1)
While the decision is without prejudice to any outcome of the INB’s work, it is significant that the decision contains a reference to Article 19 of the WHO Constitution which states:
The Health Assembly shall have authority to adopt conventions or agreements with respect to any matter within the competence of the Organization. A two-thirds vote of the Health Assembly shall be required for the adoption of such conventions or agreements, which shall come into force for each Member when accepted by it in accordance with its constitutional processes. (SSA2/CONF./1)
The decision provides WHO’s intergovernmental negotiating body (INB) with the mandate to draft and negotiate a potential pandemic treaty; it also provides recourse for the INB to adopt regulations (Article 21 of the WHO Constitution) or make recommendations (Article 23 of the WHO Constitution) .
The decision provides detailed instructions to WHO in establishing the modalities for the negotiations. The first meeting of the INB will be held no later than 1 March 2022; the second meeting of the INB will be held no later than 1 August 2022. At the end of the second meeting, the INB is instructed to “identify the provision of the WHO Constitution under which the instrument should be adopted in line with Op 1.1”. The first meeting of the INB will elect two co-chairs, “reflecting a balance of developed and developing countries, and four vice-chairs, one from each of the six WHO regions” (SSA2/CONF./1).
The INB is instructed to submit its outcome to the Seventy-seventh World Health Assembly (2024) with a progress report to the Seventy-sixth World Health Assembly (2023).
The decision instructs WHO’s Director-General to hold public hearings before to the second meeting of the INB (before August 2022) to inform its deliberations and facilitate the participation of UN and other intergovernmental organizations, non-State actors in official relations with WHO, and other relevant stakeholders and experts as decided by the INB.
One principle recognized in the preamble of the WHO decision is the exigent need to “address gaps in preventing, preparing for, and responding to health emergencies, including in development and distribution of, and unhindered timely and equitable access to, medical countermeasures such as vaccines, therapeutics and diagnostics, as well as strengthening health systems and their resilience with a view to achieving UHC.” (SSA2/CONF./1)
Thiru Balasubramaniam, Geneva Representative, Knowledge Ecology International
“The WHO negotiations on a pandemic treaty are not a quick fix to the current pandemic, but they offer a much more comprehensive and potentially useful response going forward, including for the next pandemics. The negotiators will be looking to see how they can address the many policy failures that have accompanied the current pandemic responses, and to create a better global framework for cooperation, including the sharing of technology and the financing of measures to prepare for and respond to pandemics. The initial plan is to negotiate the details in a two year time-span, commencing in March 2022 and ending in May 2024. The WHA decision cites Article 19 of the WHO constitution, a rare and important effort to attain the highest legal status to an agreement.”
James Love, Director, Knowledge Ecology International
“The current pandemic response highlights a number of gaps and flaws in the global framework to protect the public from a deadly and economically harmful pandemic. There has been very little transparency or sharing of manufacturing know-how, missed opportunities when funding R&D or managing clinical trials, and no global framework for sharing the costs (and benefits) of the development and deployment of countermeasures. The regulatory frameworks for approving vaccines and other countermeasures, and the intellectual property rules on know-how, inventions, data and biologic resources, were ill suited to address the current pandemic, and the negotiators can explore reforms. KEI has encouraged negotiators to consider a variety of models for the agreements, including for example mandatory cross border exemptions for intellectual property rights, something that was done in the WIPO Marrakesh treaty for the blind, as well as a flexible structure that would including mandatory binding norms, but also opt-in agreements and even soft norms that could migrate to more legally binding obligations over time as they gain consensus.”