The World Health Assembly — the body comprised of nearly every government in the world to guide health-related matters of international concern — convened a “Special Session” (only the second such “Special” meeting in its 75-year history) to decide how governments could better prevent, prepare for, coordinate during, and respond to the next pandemic. This O’Neill Briefing analyses the events leading to the call for the Special Session, the positions of the influential governments leading up to and including the Special Session, the outcomes of the Special Session, and the future of global health law. The World Health Assembly Special Session (WHASS) held on 29 November to 1 December 2021 ended with the formation of an Intergovernmental Negotiating Body with the goal of adopting a framework convention on pandemic preparedness and response, targeted revisions of the International Health Regulations (2005), and/or other international agreement.

The World Health Assembly, the supreme decision-making body of the World Health Organization, has adopted only one Framework Convention in its history — a Framework Convention on Tobacco Control with evidence-based norms for tobacco prevention and control. Treaties are arduous and time-consuming to negotiate — they require governments to give up some of their ability to decide for themselves what they will do, with whom they will work, and how much money they will spend. The political difficulties of treaty negotiation are even more acute when the subject matter is diplomatically sensitive — like monitoring biological research laboratories; sharing vaccines, medicines, and especially the know-how to make them; and committing domestic resources to support patients and people abroad.

How We Got Here

The COVID-19 pandemic exposed fundamental limitations in international governance frameworks for pandemic preparedness and response, including requirements under the International Health Regulations (2005) (IHR) and capabilities of the World Health Organization (WHO). With 196 states parties, the IHR has near universal reach. But during the pandemic, parties to the IHR have disregarded its obligations, including widespread failures to build core health capacities to detect, assess, and respond to novel pathogen outbreaks, and to rapidly report such outbreaks to WHO. WHO was hindered in its response, having been deprived of sustainable funding and lacking the legal authority and will to enforce IHR obligations or investigate reports of novel outbreaks. There were also major failings in global solidarity, particularly in the equitable distribution of vaccines and other life-saving resources, and, in some quarters, scientific cooperation.

To account for these failings and more, on March 30, 2021, 26 heads of state, the President of the European Council, and WHO’s Director-General called on the international community to negotiate a treaty on pandemic preparedness and response. The treaty could garner the highest levels of political action to prepare for and respond to pandemic threats.

In the lead up to the World Health Assembly (WHA) in May 2021, the Independent Panel for Pandemic Preparedness & Response (IPPPR) recommended that WHO Member States adopt a Pandemic Framework Convention using the powers in Article 19 of WHO’s Constitution, the power WHO’s member states had deployed to adopt the Framework Convention on Tobacco Control.

By the time the WHA convened in May, the EU and 32 WHO Member States issued a formal proposal calling for a Special Session of the WHA to “consider developing a WHO convention, agreement or other international instrument on pandemic preparedness and response.” The WHA adopted the proposal and formed a Member States Working Group on Strengthening WHO Preparedness and Response to Health Emergencies (WGPR) to assess the benefits of developing a new instrument for strengthening pandemic preparedness and response.

The WGPR’s November report identified several benefits of adopting a new instrument which could not otherwise be addressed through the IHR. These included attracting high-level political commitment to the common goal of preparedness; strengthening the role of WHO as the leading authority on global health; adopting a One Health approach; sharing of data, samples, technology, and benefits; and ensuring more equitable access to medical countermeasures, including diagnostics, therapeutics, and vaccines. The WGPR recommended developing a new instrument under the auspices of WHO in tandem with strengthening the IHR. The WGPR will submit its second report discussing all recommendations to WHO’s Executive Board at its 150th session in January 2022.

Major Positions of Key Nations

The European Union, Germany, France, United Kingdom, Spain, South Africa, Indonesia, Chile, Senegal, Rwanda, and numerous other European, African, Asian, and Latin American and Caribbean countries: Since 26 heads of state and government, the European Council president, and WHO Director-General joined a March 2021 commentary in support of a pandemic treaty, support for a treaty has grown. The European Union and some 70 countries (so-called “Friends of the Treaty”) now support the legally-binding treaty approach.

Russia and Brazil opposed moving forward with a pandemic treaty. They cautioned against diverting resources away from addressing immediate pandemic needs towards the lengthy process of negotiating a treaty. Russia and Brazil also expressed broader concerns shared by other governments, arguing that a binding treaty would curtail their national sovereignty and impede private sector innovation. Russia also voiced concern over the possibility of a new instrument that could weaken or duplicate the IHR.

The United States, which has also been cautious about the treaty approach, expressed a preference that the negotiating process begin by developing consensus about what is required to strengthen WHO and broader global health security norms. Other possibilities include revisions to the IHR or using non-binding tools available to WHO. A binding treaty also raised concerns in the United States about the hurdle that the Constitution creates to treaty ratification, requiring two-thirds of Senators to consent; a very high bar in the current political environment. But the United States remains open if the treaty is one that could make a real difference and not contain “empty promises.”

China has not expressed support for a treaty directly, but neither is it opposed to discussing one. However, given its history with COVID-19, it may oppose the kind of cooperation in data-sharing and transparency that would be a central element of any treaty. China not only failed to report SARS-CoV-2 early and accurately, but also has impeded a WHO investigation into the origins of the virus.

Next Steps And Likely Outcomes

Over the course of the Special Session including a passionate speech by WHO Director-General Tedros Adhanom Ghebreyesus, the World Health Assembly made several key decisions with respect to a pandemic treaty.

First, the Assembly created an Intergovernmental Negotiating Body (INB) to draft and negotiate the potential agreement. Such a body is appointed when treaty discussions have entered a formal phase. The INB is likely to be quite large as every one of the WHO member states may participate in it along with specified others.

Second, the WHA identified how the leadership of the drafting effort would be constructed, emphasizing diversity and inclusion: the INB will be led by two co-chairs and four vice chairs requiring there be geographic diversity and a balance of developed and developing countries among them. While no guarantor of success, this will add legitimacy to any proposal that advances for consideration.

Third, the WHASS determined a concrete timeline.It took almost ten years from authorization of negotiations to entry into force of the Framework Convention on Tobacco Control (FCTC). The resolution appears crafted to keep negotiations to schedule. The INB must meet before March 2022 to choose its leaders, present a progress update to the Assembly in May 2023, and submit a draft instrument to the Assembly in May 2024.

By August 2022, the INB must make two critical decisions: it must agree on what substantive components will be included in the agreement and it must decide whether it will proceed under WHO’s Article 19 treaty making authority, its Article 21 regulation-issuing authority (the current form of the IHR (2005)), or its Article 23 power to issue recommendations only.

Several countries, including the United States, urged concurrent efforts to strengthen the current, relatively weak International Health Regulations something that is also contemplated by the WHA’s decision. What is most important is that negotiations over a treaty go together with IHR reform. It’s commonly agreed that any new treaty should reinforce and extend IHR norms, and not contradict or duplicate them.

At this moment, it is unknown what will be in a pandemic preparedness and response agreement. Given there are dozens of potential components to evaluate — including some of the most sensitive issues related to economic competitiveness and national security — critics warn that pushing for a treaty is “putting the cart before the horse.” There is also the concern that a new pandemic treaty would be unwieldy if it dealt with all the issues currently on the table. Additionally, the WHA has only limited authority when it intersects with other norms and institutions such as animal health, trade, and intellectual property.

While not outlining particular areas, the resolution grounds the pending discussions in principles of inclusiveness, transparency, consensus, member state leadership, and efficiency. It charges the INB with identifying the substantive elements of the instrument before crafting a working draft. To do this, the INB will consult other international agencies, non-state actors, and “other relevant stakeholders and experts” and requests the Director-General to hold public hearings. Given the criticism that treaties are usually a states-only matter, inviting the global community in the room where it happens is a relatively unique development and one that will enhance the transparency and accountability of the process.

The experience with HIV/AIDS has taught the world that civil society plays a major role in forming global policy and governance. Civil society can impact government actions, as well as international relations.

Given the positions of several influential governments leading to the WHA’s final resolution, the text of the resolution itself, and the normative changes accompanying its development, the world can anticipate at least four possible outcomes:

  1. The revision of the IHR (2005) to fill gaps and enhance compliance, which is broadly the position of major powers such as China, Russia, and the United States
  2. A new pandemic agreement or other instrument. This could take the form of a binding Framework Convention, “soft” law instruments like the WHO Pandemic Influenza Preparedness (PIP) Framework; and/or a political declaration of formal WHA recommendations under Article 23 of its Constitution. The form or nature of a future WHO international agreement remains uncertain
  3. Reformed decision-making at the WHO around pandemic declarations and ensuing measures. D-G Tedros emphasized some of these changes during his introductory speech and they echo calls made by governments with respect to some WHO failures not explicitly tied to the IHR (2005).
  4. While it is not formally part of the intergovernmental negotiating process, the WHO formed a committee on sustainable financing of the Organization. Ensuring a well-funded, independent WHO is vital to the future of global health security, and much more.

Concluding Observations

COVID-19 became a pandemic because the world was ill-prepared, communication and coordination broke down over the early months of 2020, and the response has privileged the rich few over the global many. A binding legal treaty may not yet materialize, but the Special Session has laid the groundwork for one, and, even if none emerges, the unity of the world around better mechanisms for global preparedness and response may nevertheless be an improvement over the status quo. One thing seems highly likely, if a so-called “Pandemic Treaty” is eventually adopted, it will not have the global unanimity of the current IHR. The IHR was substantially revised in 2005 in response to global failures during the SARS epidemic. With 196 states parties, the IHR is one of the most broadly accepted treaties in the world. Given a collapse of global solidarity during the COVID-19 pandemic, and states often asserting their sovereignty and independence of action, it may be that a new pandemic treaty is adopted by a “coalition of the willing,” which might have major powers on the outside.

That is all the more reason to work in parallel with treaty negotiations, toward IHR reform as well as building resilience in the WHO and strengthening and extending global public/private partnerships that have been a growing feature of the global health architecture.

To be certain, in five years’ time, the WHO, global preparedness, and international cooperation will look much different than they did at the start of 2020. And, in all these spheres, the world should change dramatically and for the better.

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The views expressed herein do not necessarily reflect the institutional views or positions of the O’Neill Institute or FNIH.

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