The World Health Assembly’s adoption of a decision [link] to launch intergovernmental negotiations on a WHO pandemic treaty signaled the intent of WHO member states to consider deep consequential reforms in the global pandemic response.
KEI is among those who want the negotiators to include measures on the sharing of rights and know-how from government funded technologies, mandatory intellectual property exceptions, global norms for financing R&D in both the preparatory and crisis stages, concrete obligations for transparency and better regulatory pathways for vaccines and other counter measures during an emergency. All of these issues were discussed by the Working Group on Strengthening WHO Preparedness for and Response to Health Emergencies (WGPR) and during this week’s World Health Assembly meeting, but each topic is also controversial and consensus will be difficult.
The decision empowers the WHO to establish an Intergovernmental Negotiating Body (INB) which will hold its first meeting by 1 March 2022. The decision clearly references Article 19 of the WHO Constitution which empowers the World Health Assembly with the mandate to adopt a convention, agreement or international instrument. The decision provides recourse for the Assembly to adopt regulations (Article 21 of the WHO Constitution) or make recommendations (Article 23 of the WHO Constitution).
KEI’s reading of operative paragraph 1(3) of the decision SSA2(5) indicates that the Intergovernmental Negotiating Body (INB) is instructed to identify “substantive elements of the instrument”, begin the “development of a working draft”, and “identify the provision of the WHO Constitution under which the instrument should be adopted in line with paragraph 1(1)” by the second meeting of the INB no later than 1 August 2022. This means that by 1 August 2022, WHO’s Intergovernmental Negotiating Body must decide which path WHO’s pandemic response should take: 1) an Article 19 convention, 2), an Article 21 approach (regulations), or 3) Article 23 (recommendations), or some combination of the three.
The period between 1 March 2022 (the first meeting of the INB) and 1 August 2022 (the second meeting of the INB) will be crucial for the success of any future instrument. To ensure an effective outcome, the meetings of the INB should be inclusive and transparent. To this end, the WHO secretariat should facilitate the full participation of non-State actors in official relations with WHO in meetings of the INB in addition to the public hearings referenced in OP 2(2) of the decision.