Prospects for the World Health Assembly’s pandemic instrument

The World Health Assembly (WHA) has established an intergovernmental negotiating body to “draft and negotiate a WHO convention, agreement or other international instrument on pandemic prevention, preparedness and response”.

The Assembly’s decision was made at the special session of the WHA (29 November – 1 December 2021), convened for the specific purpose of considering the benefits of such an instrument.

The proposed pandemic instrument will almost certainly materialise too late to mitigate the impact of the global Covid-19 pandemic.

There is plenty of irony in the fact that while the European Union has led the push for a legally binding pandemic convention (see here and here), the EU continues to resist the proposal for a waiver of intellectual property rights under the World Trade Organisation’s TRIPS convention – in order to accelerate access to Covid vaccines and other technologies.

(See the TRIPS and Covid-19 waiver proposal here, and the EU’s counter-proposal here).

What do we know so far about the proposed pandemic instrument?

The World Health Assembly has opted for a World Health Organisation instrument, rather than a treaty negotiated under the broader, United Nations system, such as the UN Framework Convention on Climate Change.

There has been some drift in the governance of global health issues away from WHO in recent years to the broader UN system.  This is illustrated by the High-level meetings of the UN General Assembly on non-communicable diseases (2011, 2014, 2018, 2025), the health agenda embodied within the Sustainable Development Goals, and many other instruments, strategies and processes.  Of course, as the specialised health agency of the UN, the WHO remains centrally involved in helping to coordinate the response to many global health challenges.

The point, however, is that a multi-sectoral, all-of-government response is crucial if governments want to effectively tackle many of the world’s leading health challenges, from tobacco control to pandemics.

The envisaged pandemic instrument, however, will be a WHO instrument, overseen by a body that convenes the world’s health ministers, rather than heads of state. Implementation will be everything.

What kind of instrument?

Under the WHO Constitution, the World Health Assembly has authority to adopt conventions (Article 19), adopt Regulations (Article 21), or make recommendations (Article 23).

For the moment, all of these options are on the table.

The negotiating body will meet by 1 March 2022 in order to elect two co-chairs and four vice-chairs, who are required to develop a process to “identify the substantive elements of the instrument” and to begin the development of a working draft.

This draft must then be presented to the intergovernmental negotiating body at its second meeting in August 2022 – by which time it is intended that the negotiating body will identify the constitutional basis for the new instrument: whether a convention, or regulations, or recommendations.

Timeline

The intergovernmental negotiating body has been given a three-and-a-half-year timeline.  It must present the outcomes of its deliberations to the World Health Assembly in May 2024 (WHA77), with a progress report to the WHA in 2023 (WHA76).

Relationship with the International Health Regulations

Legally-binding international instruments are rare in global health. Non-binding normative instruments (so-called “soft law”), are far more common: see discussion here.

Two of the best known legally-binding agreements are the WHO Framework Convention on Tobacco Control, and the Protocol to Eliminate Illicit Trade in Tobacco Products.

Another binding instrument is the International Health Regulations (IHR) which (amongst many other things) impose obligations on WHO Member States to report and respond to events that constitute “public health emergencies of international concern”.

The IHR were revised and updated in 2003 following the SARS outbreak.

The limitations of the IHR, compliance problems, and lack of progress in implementation, have been investigated by many committees and expert bodies (see eg here, and here).

It’s safe to say that the failure of the IHR to effectively prevent and manage the Covid-19 pandemic, which has so far claimed nearly 5.6 million deaths, remains a driving force behind the WHA decision.  What better illustration of the need for effective global governance of pandemics than Covid-19?

That doesn’t mean that any new pandemic instrument will replace or supplant the IHR.  Far from it.  The WHA decision calls for “coherence and complementarity” between the process of developing a new pandemic instrument and the work of the “Member States Working Group on Strengthening WHO Preparedness and Response to Health Emergencies” (a group established at the World Health Assembly in May 2021) “particularly with regard to implementation and strengthening of the IHR” (see para 1(4) here).

Content of an international pandemic instrument

The Report of the Member States Working Group to the WHA special session in November 2021 includes a list of matters that might be included in a global instrument.  They include:

  • global equity issues; for example, the problem of grossly inequitable access to vaccines
  • strengthened accountability for compliance with IHR obligations
  • “potential targeted amendments” to the IHR to enhance prevention, rapid risk assessment, detection and response
  • enhancing surge capacity in countries through strengthening health systems
  • sharing of pathogens, genetic information, biological samples and information
  • responding to misinformation and disinformation in national responses
  • elevating the political response to pandemic preparedness and response through an all-of-government approach

There is a growing literature that discusses the opportunities provided by this new instrument.  See, eg here, here, and here.

Are you interested in studying health law? For more information on Sydney Law School’s Master of Health Law degree, including units of study addressing the legal response to pandemics, see here and here.

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