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G2H2 REPORT
THE POLITICS OF A WHO
PANDEMIC TREATY IN A
DISENCHANTED WORLD
NICOLETTA DENTICO
REMCO VAN DE PAS
PRITI PATNAIK
The politics of a WHO pandemic treaty in a disenchanted world
G2H2 report, Geneva, December 2021
Authors
Nicoletta Dentico, Society for International Development, G2H2 co-president
Coordinator of the G2H2 research and advocacy project
Remco van de Pas, Institute for Tropical Medicine Antwerp
Research team member
Priti Patnaik, Founding editor Geneva Health Files, Geneva
Research team member
Editorial Coordinator: Neha Gupta, Society for International Development (SID)
Design & Illustration: Jessica Bromley Bartram
This report has been developed with the support of G2H2 steering committee members
Sponsored by the Rosa-Luxemburg-Stiftung with funds of the Federal
Ministry for Economic Cooperation and Development of the Federal Republic
of Germany. This publication or parts of it can be used by others for free as long
as they provide a proper reference to the original publication. The content of
the publication is the sole responsibility of the Geneva Global Health Hub and
does not necessarily reflect the position of RLS.
INDEX
Why a G2H2 report on the pandemic treaty.................................................................1
Research questions and methodological approach.....................................................3
The COVID-19 pandemic and the creeks of global governance...................................6
The virus of an asphyxiating globalization....................................................................8
Genesis of a pandemic treaty proposal...................................................................... 13
Beating the treaty drums............................................................................................. 18
Public health needs & pandemic governance gaps:
is a new treaty the solution?........................................................................................ 21
An intricacy of political triggers................................................................................... 28
Europe’s new geopolitical assertion on the global health arena............................. 30
A winning agenda for the WHO Director General...................................................... 33
The equity & access trigger for countries of the global South................................. 35
Information as power: The Pathogen-Sharing Imperative....................................... 37
Europe’s road to immuno-politics, after COVID-19.................................................... 39
Discussion...................................................................................................................... 44
1. Advancing the IHRs: an alternative to the new
pandemic treaty pathway?.......................................................................................... 45
2. International cooperation is a Member States’
obligation, not an option............................................................................................. 46
3. A different order of priority in international treaty-making................................... 47
4. Untangle the economic and financial knots
to prepare for pandemics........................................................................................... 48
Conclusions.................................................................................................................... 50
EXECUTIVE SUMMARY In early 2021, the announcement that some Member States were eager to kick off negotiations for a new binding instrument for global health at the WHO came as a surprise. Most health policy arrangements are grounded on soft norms, and the WHO has used its constitutional normative power adopting binding agreements only twice in over seventy years of history. This development appeared more unexpected as the Member States pro- moting the idea of a treaty for pandemic preparedness and response have in the past staunchly opposed hard norm setting at the WHO. Through its bottom-up qualitative research intractable tensions that persist in today’s involving 23 respondents, the Geneva neoliberal economy. The global governance Global Health Hub (G2H2) has dived into of the current landscape furthers itself from the unfolding arena of the WHO pandem- true multilateralism and manifests itself ic treaty to inject in the public dialogue through enhanced concessions to multis- around the proposal the insights from takeholderism in the UN system. COVID-19, experts and civil society actors, including while exacerbating the world’s deep struc- those who have been at the forefront of tural inequalities, has brought to light the the pandemic response in countries, as interconnected nature of the current health well as WHO delegates in Geneva and in and environment crises and imposes now capitals. The G2H2 research has opened a new sense of purpose to policymaking the pandemic treaty discussion to a broader in public health, beyond the individual-lev- mapping of reality and its current failures, el biological causes or risk factors and the in the presence of legal frameworks (the disproportionate emphasis on technolog- WHO International Health Regulations, IHR ical solutions. A pandemic is not a fact of 2005) that should have obliged countries life, a natural phenomenon. It represents to cooperate and share information for instead the by-product of a systemic gover- contrasting SARS-CoV-2’s aggressive viral nance failure that can be avoided through evolution. Failure to do so projects a scenar- a significant change of direction and a io that cannot be limited to the WHO and the policy paradigm shift pursued in good faith health sector alone, as we enter the third through international cooperation. This shift year of the COVID-19 and the world has not is hard to see still, beyond diplomatic rheto- yet immunized itself from its dysfunctional ric exercises. The persistent widening global power structures and economic ideologies. vaccine apartheid and the resolute opposi- G2H2 analytical framework draws from tion by those very countries that propose Dani Rodrick’s globalization paradox. We the WHO pandemic treaty, to suspending look at the pandemic treaty idea through intellectual property rights at the WTO, so to the lens of the asphyxiation of capitalism’s enhance access to scientific knowledge and new unbridled pandemic tides, and the decentralized capacities of production and
provision of COVID-19 countermeasures, might play out in the coming years, beyond menace the international trust needed in the official narratives around the pandemic treaty negotiations, advance the dominant treaty. The issue of preparing and respond- privileges of the pandemic profiteers and ing to future pandemics impinges, once pose threats to multilateralism. again, on the need for countries’ capacities The report traces the genesis of the pandem- to use resources for universal public health ic treaty proposal and its diplomatic evolution systems with trained personnel, and for within the WHO, and identifies its different their freedom to determine the nature of geopolitical drivers in a rapidly changing the development they want to see, including landscape. Does the world really need a through a reshaping of globalization. The new pandemic treaty? What’s the evidence G2H2 research is a tool. It has been written behind the energetic push to negotiating to stimulate conversations and upgrade one? And what are the trade-offs? G2H2 the global health justice agenda after the respondents’ analyses assembled in the shocks provoked by COVID. research imagine different ways the conun- drum of health needs, politics and limits
LIST OF ABBREVIATIONS
ACT-A ccess to COVID-19
A IOAC Independent Oversight
Tool Accelerator and Advisory Committe
BMGF
Bill and Melinda IP Intellectual Property
Gates Foundation
IHR International Health Regulations
CBD
Convention on
Biological Diversity IPPPR Independent Panel
for Pandemic Preparedness and
CEWG
Consultative Expert Response
Working Group
MS Member State
CRtD onvention on the Right
C
to Development NFP National Focal Point
CSO Civil Society Organization OHCHR
Office of the High Commissioner
for Human Rights
C-TAP COVID-19 Technology
Access Pool PHEIC ublic Health Emergency
P
of International Concern
EB Executive Board
R&D Research and Development
EC European Commission
RRC-IHR
Report of the Review Committee
EU European Union on the Functioning of the
International Health Regulation
EUMS
European Union
Member State SDG Sustainable Development Goal
FCCC
Framework Convention SGP Stability and Growth Pact
on Climate Chance
TNC Transnational Corporation
FTCT
Framework Convention
on Tobacco Control TRIPS rade-related Aspects of
T
Intellectual Property Rights
HERA
Health Emergency
Preparedness and UNHRC
United Nations Human
Response Authority Rights Council
HLPAM ( UN) High Level Panel WB World Bank
on Access to Medicines
WHA World Health Assembly
GPMB
Global Preparedness
WHO World Health Organization
Monitoring Board
WHOC
World Health Organization
GSPoA
Global Strategy and Plan
Constitution
of Action, Public Health,
Innovation and IP WHO DG World Health Organization
Director General
ICC International Criminal Court
WGPR orking Group on WHO
W
IFPMA International Federation
Preparedness and Response
of Pharmaceutical Manufacturers’
to Health Emergencies
Association
WTO World Trade Organization
IMF International Monetary Fund
1
WHY A G2H2 REPORT ON
THE PANDEMIC TREATY
As an independent platform of civil society organizations committed to ad-
vancing the right to health, the Geneva Global Health Hub (G2H2) has en-
gaged on the idea of a pandemic treaty soon after it was presented at the
World Health Organization (WHO) in 2021. We started the process through
a public webinar analysing the scope of the pandemic treaty in May 20211.
The announcement that some Member the source of their reluctance to binding
States were eager to enact new binding norm-setting — particularly after the pains-
instruments for global health came as a taking negotiations on the Framework
surprise, as most health policy arrange- Convention on Tobacco Control (FCTC)3.
ments are grounded on soft norms, and Their proclaimed intention is to build a
the WHO has used its constitutional norma- more robust global health architecture that
tive power adopting binding agreements will protect new generations4 from other
only twice in its seven decades of history. pandemics and potential health emergen-
The development sounded all the more cies projected for the future, which no
unexpected since those very influential single government or multilateral agency
Member States spearheading the idea of a can tackle alone. But the WHO is already
binding treaty for pandemic preparedness equipped with a binding instrument aimed
and response have staunchly opposed in to address health emergencies, the Interna-
the past treaty-making processes that were tional Health Regulations that was revised
ruminated at length at the WHO. The most in 2005, and grossly overlooked during the
prominent case is the forefront rejection harshest phases of the viral evolution in
of the treaty on needs-driven research and 2020. This begs the question: why?
development (R&D) to be negotiated at the As civil society organizations anchored in the
WHO, recommended by a vast number human rights obligations developed around
of independent scholars and by a WHO the right to health, we have always advocat-
consensus in resolution (WHA61.21)2. ed for binding regimes in global health,
The emergency scenario generated by as a reasonable alternative to soft-law
SARS-CoV-2 seems to have now helped heal arrangements and voluntary approaches.
the treaty fatigue syndrome that sever- This is the reason why in the past we have
al Member States had acknowledged as supported the academic and civil society
1 https://g2h2.org/posts/may2021/ 3 https://www.who.int/fctc/text_download/en/
2 h
ttps://apps.who.int/gb/ebwha/pdf_files/WHA61-REC1/ 4 h
ttps://www.who.int/news/item/30-03-2021-global-leaders-
A61_Rec1-part2-en.pdf unite-in-urgent-call-for-international-
pandemic-treaty
2
drive in support of the R&D treaty at the respond to future emergencies. G2H2 feels
WHO, and we have actively engaged in it is necessary to expand the policy dialogue
conversation with several constituencies to and the perspectives on the pandemic treaty
promote the idea of a Binding Framework and share its preliminary effort at address-
for Global Health5. ing the complexity of this arena through a
Through this research, G2H2 plans to dive bottom-up qualitative research activity.
into the pandemic treaty discourse by inter- One of the main purposes of this research
acting with the plentiful literature produced is to contextualize the treaty proposal and
on the subject. We have also decided to explore viable global governance mecha-
bring on board actors that so far — with a nisms that are adequate in safeguarding
few exceptions — have been consistently the right to health in the context of prevent-
neglected in the formal WHO negotiations, ing and tackling health emergencies, based
namely experts and civil society entities on the principles of international law and
from the global South, and those who multilateral cooperation. It represents
have directly been at the forefront of the an independent civil society attempt to
response to the pandemic in different shed light on some of the thorniest and
countries. In doing so, G2H2 opens the unresolved issues in the management of
pandemic treaty discussion to a broader the current and future pandemics, and such
mapping of reality, one that cannot be limit- that require to be injected in the discussion
ed to the WHO and the health sector alone, right from the start, in the lead up to the
in a state of global affairs worsened by the special session of the World Health Assem-
pandemic. COVID-19 has only displayed the bly (WHA), and beyond. This research is in
systemic interconnected dimension of the no way exhaustive, and it is in many ways an
crisis that needs to be closely considered open living document to be revised with the
when thinking about pandemic scenarios, evolution of the WHO negotiating process.
if we are earnestly planning to prepare and
5 G
ostin L., Friedman E. A., “Towards a Framework Convention
on Global Health: A Transformative Agenda for Health
Justice”, in Yale Journal of Health Policy, Law, Ethics (2013),
available at https://digitalcommons.law.yale.edu/yjhple/
vol13/iss1/1/.
3
RESEARCH QUESTIONS AND
METHODOLOGICAL APPROACH
Based on a participatory process that involved its members at different
stages, G2H2 selected three research questions for this study:
1. I s a new international pandemic treaty required to overcome
legal constraints and address public health needs for pandemic
preparedness and response?
2. W
hat are the (geo)political factors behind the call for a pandemic
treaty and which are the actors driving this agenda?
3. W
hat other policy approaches could be envisaged to prevent future
health emergencies and effectively govern pandemic preparedness
and response?
The study derives its normative basis centre of the international agenda. The
from the human-rights based approach global governance for public health must be
to health and policy-making in guiding transformed in a way that recognizes that
its analysis and recommendations6. It COVID-19 is not simply a viral infection, but
builds on the Kingdon’s three-streams a complex synergistic epidemic with clinical
model, which explains why policy issues and structural vulnerabilities entrenched
emerge on the international agenda, by poor health, precarity, unemployment,
and what is the imputable role of entre- deprivation and marginalization8. Moreover,
preneurs and policy-windows in this planetary concerns related to biodiversity
dynamic7. At a secondary level, in the loss, climate change and other threats as
context of the ongoing COVID-19 crisis, this drivers of zoonotic diseases have potently
research project advocates for the need to made their way through the global health
place the right to health and the increasing governance malaise. The current growth
multiplicity of health determinants at the model falls short on equity and poverty
6 London, L. (2008). What is a human-rights based approach syndemic.&text=A%20syndemic%20emphasizes%20the%20
to health and does it matter?. Health and human rights, 65-80. fact,broader%20factors%20like%20social%20inequality and
also Mendehall, E. and Gravlee, C.C. (2021), How COVID,
7 K
ingdon, J. W., & Stano, E. (1984). Agendas, alternatives, and Inequality and Politics Make a Vicious Syndemic, Scientific
public policies (Vol. 45, pp. 165-169). Boston: Little, Brown. American, 26th August 2021, https://www.scientificamerican.
com/article/how-covid-inequality-and-politics-make-a-
8 M
endenhall. E. (2020), Why social policies make coronavirus vicious-syndemic1/.
worse. Think Global Health, 27th March 2020, https://www.
thinkglobalhealth.org/article/why-social-policies-make-
coronavirus-worse#:~:text=COVID%2D19%20is%20a%204
reduction grounds and the international • S
emi-structured interviews with
community needs to recognize its limits and participants including international
responsibilities9, while opening a more policymakers, health diplomats, civil
sovereign economic space for countries and society actors, scholars and public health
societies, based on the need for decolonizing professionals. The research comprised
the development agenda10 11 12. The pandem- respondents from all WHO regions,
ic has clearly pointed to the formidable wall except for the Western Pacific. Reaching
of health discrimination and inequality that out to the widest possible geographical
envelopes the culture of health institutions representation was G2H2 intent, to
and healthcare settings, across the scalar ensure a wide range of perspectives
levels of local and global action13. coming from high-income, middle-in-
The research-team, consisting of Remco come and low-income countries, for the
van de Pas & Priti Patnaik, carried on the sake of analytical diversity and variety of
research from August to mid-October 2021. positions. Most interviewees are directly
Nicoletta Dentico led the conceptualization, involved in, or closely monitoring the
structure and writing of the report. The developments on pandemic governance
research was conducted through: and the treaty proposal.
• A
preliminary online consultation with 35 interviewees were approached and 23
G2H2 members, to share the conceptual participated in the study. Interviews were
framing of the research and possible guided by a semi-structured format based
alliances therein — both in terms of on the three research questions. They
experts to interview and specific cases lasted between 30 minutes and 2 hours.
to examine in the context of the current Data was collected online, by telephone
pandemic. or in-person interviews. Participants were
guaranteed anonymity in accordance with
• A
scoping literature review of academic
Chatham Rules. Data collection, storage and
journals, policy documents and online
transcription were done in a secure manner.
media. This was done via a selective,
iterative technique that focused on the
pandemic treaty and governance of
international outbreaks in recent history
(since 2000). This approach allowed
looking laterally into political and diplo-
matic developments in other sectors
and policy-areas, such as in security,
economic, trade, ecological and food
domains.
9 R
odrick, D. (2021), The Metamorphosis of Growth Policy, 12 F
anon, F. (1967). The Wretched of the Earth [1961], trans.
The Project Syndicate, 11th October 2021, https://www. Constance Farrington.
project-syndicate.org/commentary/new-growth-policies-for-
developing-countries-by-dani-rodrik-2021-10. 13 C
ousins, T., Pentecost M., Alvergne A., et al. (2021). The
changing climates of global health. BMJ Global Health, 2
10 R
aworth, K. (2017). Doughnut economics: seven ways March 2021.
to think like a 21st-century economist. Chelsea Green
Publishing.
11 T
inbergen, J. (1976). Reshaping the international order.
Futures: the journal of policy, planning and futures studies.5
Table 1: Overview and breakdown of research participants profile
CATEGORY GEOGRAPHIC BACKGROUND NUMBER
(Health) diplomat Europe 4
(Health) diplomat Africa 3
(Health) diplomat Americas 2
(Health) diplomat Asia 1
Global Health official Africa 2
Global Health official Europe 1
Academic Europe 3
Academic Americas 3
Academic Africa 1
Academic Australia 1
Civil society America 1
Civil society Asia 1
The study findings were categorised along issues, the findings did not cover all themes
the main themes identified. This combines addressed by the participants but focused
and triangulates with the findings from on the priorities emerging at the time of the
literature review as well as the G2H2 consul- interviews. The findings consist of clustered
tations and analyses from panelists in assessments by the researchers and do not
G2H2 webinars. Given the multiplicity and necessarily represent an individual opinion
complexity related to pandemic governance or position by a research participant.6
THE COVID-19 PANDEMIC
AND THE FAILURE OF
GLOBAL GOVERNANCE
COVID-19 has kept the world in a pandemic grip since early 2020 and has
clearly shown the malaise of global health governance at the intersection
of global crises that have converged in 2020: the mounting inequalities, the
doom of climate change and the structural pathogenesis of globalization14.
The world was not and is still not effec- Director-General declared the outbreak a
tively able to prevent, predict, prepare for, Public Health Emergency of Internation-
respond to and recover from a multi-country al Concern (PHEIC) on 30 January, when
outbreak or pandemic. As the WHO Indepen- there were already 98 cases in 18 countries
16
dent Panel for Pandemic Preparedness and outside China . But his declaration was
Response (IPPPR) has recalled in its outspo- not followed by immediate emergency
15
ken report Make it the Last Pandemic , the responses in most countries, despite the
planetary expansion of the new coronavi- mounting evidence that a highly conta-
rus should never have occurred in the first gious new pathogen was spreading around
place. SARS-CoV-2 appeared unexpected the planet. “For a strikingly large number
and unknown in a world that had ignored of countries, it was not until March 2020,
repeated warnings from multiple scientific after COVID-19 was characterized as a
circles and most of the recommendations ‘pandemic’, and when they had already seen
from multilateral commissions and organi- widespread cases locally and/or reports
zations, but the international community of growing transmission elsewhere in the
had all the technical knowledge and tools world, and/or their hospitals were begin-
to confine the viral evolution and make ning to fill with desperately ill patients, that
SARS-CoV-2 a geographically controlled concerted government action was finally
17
epidemic. It simply did not do it. The WHO taken” . While disputes are ongoing over
14 S
ell, S. and Williams. O., (2019), Health under capitalism: 30 January 2020, https://www.who.int/director-general/
a global political economy of structural pathogenesis. speeches/detail/who-director-general-sstatement-on-ihr-
Review of International Political Economy, https://www. emergency-committee-on-novel-coronavirus-(2019-ncov)/.
tandfonline.com/doi/abs/10.1080/09692290.2019.1659842.
17 C
OVID-19: Make it the Last Pandemic, May 2021, p.
15 C
OVID-19: Make it the Last Pandemic, Report of the 28, https://theindependentpanel.org/wp-content/
Independent Panel for Pandemic Preparedness and uploads/2021/05/COVID-19-Make-it-the-Last-Pandemic_
Response, May 2021, https://theindependentpanel.org final.pdf
16 W
HO Director-General’s statement on IHR Emergency
Committee on Novel Coronavirus (2019-nCoV), Geneva,7
20
the origins and timeline of the outbreak, the affected countries and communities , easily
world counts roughly 252 million COVID-19 transforming the disease into a pandem-
18 21
cases and 5.1 million deaths as of mid-No- ic of inequities . Those with insufficient
vember 2021, although the real death toll is or no social protection were dramatically
19
expected to possibly be three time higher . exposed to the virus, often because of
All continents by now have gone through pre-existing health conditions that made
recurring waves of the pandemic, yet differ- them more vulnerable to it. More frequent-
ences in mortality, prevalence, detection ly, it was the nature of their work and their
and response capacity remain stark. As living conditions, or the risk of losing their
with most infectious diseases, the trajectory daily hand-to-mouth income, that dragged
and impact of COVID-19 vary widely across people into the contagion.
18 h
ttps://covid19.who.int/ 21 M
aani, N., Abdalla, A.M., Galea, S. (2021). Avoiding a legacy
of unequal non-communicable disease burden after the
19 h
ttps://www.economist.com/graphic-detail/ COVID-19 pandemic. Lancet Diabetes & Endocrinology,
coronavirus-excess-deaths-estimates 2021; 9(3):133–135, https://www.thelancet.com/journals/
landia/article/PIIS2213-8587(21)00026-7/fulltext.
20 V
an Damme, W., Dahake, R., Delamou, A., Ingelbeen, B.,
et al. (2020). The COVID-19 pandemic: diverse contexts;
different epidemics—how and why?. BMJ Global Health,
5(7), e003098.8
THE VIRUS OF AN ASPHYXIATING
GLOBALIZATION
The COVID-19 pandemic did not come to break globalization. It came to
reveal what was already broken. Quite ferociously, it came to demonstrate
the interconnection between humankind and other living species and the
environment. Deforestation and the ever-increasing destruction of natu-
ral habitats and displacement of living species, wildlife trading and traf-
ficking22, resource-intensive lifestyles and conditions, unsustainable food
production and consumption systems, are right at the origin of the subse-
quent emergence of zoonoses since the beginning of the new millennium23,
particularly viruses like influenza and other pathogens24.
The declining biodiversity, linked to indus- responses to the pandemic: “we need to
trial agriculture and intensive livestock recognize that we are moving beyond the
breeding, is a major driver of spillovers of point of saturation”, as the scientist Johan
26
infectious diseases — the devastation of Rocktrom rightly points out . The crisis
forests for palm oil plantations enabled the marks an opportunity, for the international
conditions for the spreading of Ebola and community that believes in public health
25
Nipah viruses . COVID-19, a symptomatic and the role of multilateral institutions, to
manifestation of the Anthropocene, impos- re-imagine itself and project new ways to
es now a new sense of purpose to health engage beyond classical models. “Climate
policymaking in the current and future change is a health crisis” has declared
22 While the connection between the trafficking of wild 23 In 2012 there was as a MERS coronavirus outbreak in
animal species and public health is not yet sufficiently Saudi Arabia and Jordan. Other virus species leaps have
analyzed by the global health community, the WHO occurred with swine flu (H1N1) in 2009, bird flu in 2013 and
evidence shows that 75% of emerging diseases have a 2017 (H7N9), as well as other pathogens such as Zika and
wildlife link and scientific evidence proves that at least Ebola, Dentico N., “The COVID_19 Crisis in Health Systems
19 pandemics have been attributed to the wildlife trade, and Prospects for Recovery: The View from Italy”, Health
causing an estimated 1.4 billion cases of disease in past Policy Watch, 27th March 2020, https://healthpolicy-watch.
100 years, and 87 million deaths. In the USA, there are org/the-covid-19-crisis-in-health-systems-prospects-for-
currently 70,000+ cases of reptile-associated salmonellosis recovery-the-view-from-italy/.
annually from pets, and 6,000+ cases in the UK. Cfr.
Brown C. et al. “Emerging zoonoses and pathogens of 24 W
allace R., (2016). Big farms make big flu: dispatches on
public health significance – an overview”, in Rev. sci. influenza, agribusiness, and the nature of science. NYU
tech.Off.int.Epiz2004, 23(2), 435-442, (https://pubmed. Press.
ncbi.nlm.nih.gov/15702711/) and also Rosen G.E. and
Smith K., “Summarizing the Evidence on the International 25 K
hetan, A. K. (2020). Covid-19: why declining biodiversity
Trade of Illegal Wildlife”, Nature Public Health Emergency puts us at greater risk for emerging infectious diseases,
Collection, 2010; 7(1): 24–32 (10.1007/s10393-010-0317-y). and what we can do. Journal of General Internal Medicine,
More recently, linked to COVID-19, Warwick C., “Wildlife- 35(9), 2746-2747.
pet markets in a one-health context”, International
Journal of One Health, 1st February 2021, https://www. 26 R
ockstrom J. Safeguarding a Climate – Towards a
onehealthjournal.org/Vol.7/No.1/7.pdf. Sustainable Future. Kapuscinski Development Lectures.
6 Oct. 2021. https://kapuscinskilectures.eu/lectures/
safeguarding-a-climate-towards-a-sustainable-future/9
the WHO Director General opening the The health emergency in most countries
WHO conference on Health and Climate has also dramatically hampered public
Change in Glasgow: failure to address health service provisions and health
pandemics and climate change as complex programs in many settings: the number of
interrelated issues is likely to lead to false HIV-positive people diagnosed and treated,
preparedness and response strategies as well people treated for drug-resistant TB,
27 30
within any future treaty . dropped between 10- 20% . The very likeli-
COVID-19 has also revealed the deep hood of dying from COVID-19 has proven to
structural inequalities within and among be significantly higher across poorer wealth
countries, and between genders, and further quintiles, and higher still for black or indig-
deepened them. In 2020, the adoption of enous communities; for example, in Brazil
lockdown measures prevented millions of the death-toll among Afro-descendants has
people in precarious circumstances from been 40% more exorbitant than among
31
earning their daily income in the infor- White Brazilians .
mal economy that fed their families. The The World Bank has calculated that the
impossibility for many of them to be able number of people living in extreme poverty
to confine themselves led to legitimized has increased by 97 million due to COVID-19,
widespread use of arbitrary violence in reaching a staggering 732 million in 2020.
the streets. Meanwhile, at home, alarming While high and middle-income countries
trends around the world signalled a gross are slowly recovering from the pandemic,
increase of domestic violence on women the World Bank highlights that the impact
and a sharp regression in the exercise of of COVID-19 on poverty is projected to be
32
women’s human rights. The body politics worsening in the least developed econo-
of COVID-19 have imposed an unbearable mies. The number of people who did not
burden on women globally, as their capac- have access to adequate food to eat has
28
ity as “shock absorbers” has played a key risen steeply during the COVID-19 pandem-
33
role in the ongoing scenario of austerity ic, reaching 2.37 billion people , almost a
measures and recurrent reduction of social third of humankind. Of course, this food
spending. The effects on working mothers insecurity cannot be merely attributed to
29
are likely to be persistent . the pandemic, yet COVID-19 has exacerbat-
27 C
arlson, C. J., Albery, G. F., & Phelan, A. (2021). Preparing disadvantaged and vulnerable populations in low- and
international cooperation on pandemic prevention for the lower middle-income countries. https://www.imperial.
Anthropocene. BMJ Global Health, 6(3), e004254. ac.uk/media/imperial-college/medicine/mrc-gida/2020-05-
12-COVID19-Report-22.pdf
28 C
arlson, C. J., Albery, G. F., & Phelan, A. (2021). Preparing
international cooperation on pandemic prevention for the 32 Imperial College COVID-19 Response Team. (2020).
Anthropocene. BMJ Global Health, 6(3), e004254. Report 22: Equity in response to the COVID-19 pandemic:
an assessment of the direct and indirect impacts on
29 A
lon, T., Doepke, M., Olmstead-Rumsey, J., & Tertilt, M. disadvantaged and vulnerable populations in low- and
(2020). The impact of COVID-19 on gender equality (No. lower middle-income countries. https://www.imperial.
w26947). National Bureau of economic research. ac.uk/media/imperial-college/medicine/mrc-gida/2020-05-
12-COVID19-Report-22.pdf
30 h
ttps://www.theglobalfund.org/en/
news/2021-09-08-global-fund-results-report-reveals-covid- 33 h
ttps://www.fao.org/state-of-food-security-
19-devastating-impact-on-hiv-tb-and-malaria-programs/ nutrition#:~:text=Nearly%20one%20in%20three%20
people%20in%20the%20world%20(2.37%20
31 Imperial College COVID-19 Response Team. (2020). billion,people%20in%20just%20one%20year.
Report 22: Equity in response to the COVID-19 pandemic:
an assessment of the direct and indirect impacts on10
34
ed pre-existing hunger determinants , and governments’ purchase of their vaccines
it is tragic that its long-term ripple effects on through tax havens in the Netherlands and
42 43
socio-economic wellbeing in lower-income elsewhere .
35
countries will remain relatively neglected . The Covid-19 pandemic has exacerbat-
At the same time COVID-19 has served the ed beyond any imagination the negative
36
richest in our societies very well . With externalities of the unbridled tide of global-
governments bailing-out their worsening ization and the ineluctable tensions present
economies, the stock market has boomed in today’s world economy and global gover-
driving up billionaire wealth, even while the nance. Resorting to the invaluable analysis
real economy has faced the deepest reces- of the political-economist Dani Rodrick,
sion in a century. The world’s 10 richest who has deeply surveyed the larger rights
billionaires have collectively seen their and wrongs of globalization, it is indeed
37
wealth increase by USD$ 540 billion in 2020 , reasonable to assert that the pandemic has
while US billionaire wealth surging by 70%, made his ‘Globalization Paradox’ even more
38
or USD $ 2.1 trillion during the pandemic . cogent. Deriving his analytical model from
The inevitable COVID-19 vaccines drive has the 2008 financial crisis, Rodrick describes
created a bonanza for some pharmaceu- this paradox in a key political trilemma: “we
tical companies and further enhanced the cannot have hyper-globalization, democ-
39
financialization of Big Pharma . In the small racy, and national self-determination all
group of the mRNA vaccine producers and at one. We can have at most two out of
44
intellectual property holders, Moderna alone three” . We cannot simultaneously pursue
welcomes 5 of the newly emerging 8 vaccine democracy, national self-determination,
billionaires who pocket tax free profits from and economic globalization. When the social
40
publicly funded vaccines , while Pfizer and arrangements of democracies inevitably
its German partner BioNTech have predict- clash with the international demands of
ed more than USD $72 billion in sales for globalization, national priorities take prece-
41
the year 2021 alone . Pfizer and Moderna dence. The problem is that the pandemic
legally funnel the billions received from has in no way reversed the problematic
34 h
ttps://www.fao.org/3/cb4474en/cb4474en.pdf 39 F
ernandez, R. and Klinge, T.J., (2020). The financialization
of Big Pharma: private gains we can ill afford. SOMO and
35 V
an Damme, W., Dahake, R., Delamou, A., Ingelbeen, et KU Leuven. April 2020. https://www.somo.nl/wp-content/
al., (2020). The COVID-19 pandemic: diverse contexts; uploads/2020/04/Rapport-The-financialisation-of-Big-
different epidemics—how and why?. BMJ Global Health, Pharma-def.pdf.
5(7), e003098.
40 h
ttps://www.somo.nl/modernas-free-ride/.
36 B
erkhout, E., Galasso, N., Lawson, M., Rivero Morales,
P. A., Taneja, A., & Vázquez Pimentel, D. A. (2021). The 41 h
ttps://www.theguardian.com/world/2021/aug/11/
Inequality Virus: Bringing together a world torn apart by covid-19-vaccines-the-contracts-prices-and-profits
coronavirus through a fair, just and sustainable economy.
https://oxfamilibrary.openrepository.com/bitstream/ 42 h
ttps://www.ftm.eu/articles/
handle/10546/621149/bp-the-inequality-virus-250121-en. pfizer-avoids-taxes-via-the-netherlands
pdf
43 h
ttps://www.somo.nl/modernas-free-ride/.
37 O
xfam America, Pandemic Profiteers Exposed,
Oxfam Media Briefing, 22 July 2020, https://www. 44 R
odrik, D., (2011). The globalization paradox: why global
oxfamamerica.org/explore/research-publications/ markets, states, and democracy can’t coexist. Oxford
pandemic-profits-exposed/. University Press.
38 h
ttps://inequality.org/great-divide/
updates-billionaire-pandemic/.11
tensions and tendencies that were visible than in the domains of healthcare. One
before the crisis, and in fact: would imagine that, after two years of the
SARS-CoV-2, research agendas focussed on
The crisis seems to have thrown the the structural challenges of the health (in)
dominant characteristics of each security and the health (in)equality linkag-
country’s politics into sharper relief. es should have gained new meaning. But
Countries have in effect become exag- multilateral institutions and the global
gerated versions of themselves. This health community remain unwilling to make
suggests that the crisis may turn out this cognitive leap. They continue to prefer
to be less of a watershed in global legitimizing existing relations of power and
politics and economics than many have naturalizing global health security accord-
ing to beliefs that provide an avenue for the
argued. Rather than putting the world
global elites to discipline and control the
on a significantly different trajectory,
non-elite countries and people. Through
it is likely to intensify and entrench the dominance of technological solutions,
45
already-existing trends . they prolong the vertical management
It is impossible for G2H2 to conceptualize of health though disease-control and the
the WHO pandemic treaty proposal outside primacy of biomedical approaches, thereby
of this ‘globalization paradox’ gridlock, allowing the interference of giant corporate
which relies on old models of capitalist actors and new phases in the privatization
growth. These are and remain the prima- of the health agenda, away from more
ry causes of the COVID-19 crisis, and the cumbersome but indispensable systemic
46
constraints are nowhere more visible approaches .
45 R
odrick, D., (2020), “Will COVID-19 Remake the World?”, 46 S
chrecker, T., (2019). Globalization and Health: Political
in Project Syndicate, 6 April 2020, https://www.hks. Grand Challenges. Review of International Political
harvard.edu/centers/mrcbg/programs/growthpolicy/ Economy. July: 26-47, https://www.tandfonline.com/doi/
will-covid-19-remake-world. abs/10.1080/09692290.2019.1607768.13
GENESIS OF A PANDEMIC
TREATY PROPOSAL
Closing the 74th World Health Assembly (WHA) on 31st May 2021, Dr Tedros
Adhanom Ghebreyesus, the WHO Director General, concluded the session
with a strong message:
One day — hopefully soon — the pandemic will be behind us, but
we still have to face the same vulnerabilities that allowed a small
Outbreak to become a global pandemic […] That’s why the one
recommendation that I believe will do the most to strengthen both
WHO and global health security is the recommendation for a trea-
ty on pandemic preparedness and response […] This is an idea
whose time has come […] that creates an overarching framework
for connecting the political, financial and technical mechanisms
needed for strengthening global health security47.
Light on details, the proposal of a new The EU has invested heavily in lobbying
pandemic treaty supposedly seeks to avoid for this project. The idea of an internation-
the notion of secrecy and health national- al pandemic treaty was first proposed by
ism that have hampered the containment of European Council President Charles Michel
the SARS-CoV-2 contagion. In fact, the initia- at the Paris Peace Forum in November 2020,
tive derives from a European demarche “to establish stronger international commit-
directed at enhancing the European Union ment to preventing these crises […] If we
(EU) geopolitical clout ensuing France and want a fairer world, a more robust world,
Germany’s leadership towards supporting a world better able to withstand shocks
48
the WHO against US President Trump’s — as more shocks (like climate change)
hazardous blame-game and ultimately will certainly come — we must be better
49
departure from the organization. prepared . President Michel spearheaded
47 h
ttps://www.who.int/director-general/speeches/detail/ 49 h
ttps://www.consilium.europa.eu/en/press/
director-general-s-closing-remarks-at-the-world-health- press-releases/2020/11/12/intervention-du-president-
assembly---31-may-2021. charles-michel-au-forum-de-paris-sur-la-paix/.
48 h
ttps://www.france24.com/en/20200625-germany-and-
france-shore-up-support-for-who-seek-global-answer-
to-covid-19 and https://healthpolicy-watch.news/
germany-france-push-for-more-power-funding-for-who/.14
the proposal again at the Special Session of political commitment of Member States”, Dr
the UN General Assembly in response to the Tedros acclaimed at the Executive Board’s
coronavirus disease (COVID-19) pandemic meeting: possibly, in his relentless quest
on 3-4 December 2020: “The objective is to for international cooperation for managing
do better in all areas where we recognise the pandemic crisis or alternatively, and
it is in our interest to strengthen cooper- just as likely, using the treaty idea as the
ation”, the areas being: risk monitoring; golden opportunity to seal his prospective
better financing and coordination of re-election in 2022. Ever since the COVID-
research; a more efficient system of alerts 19 pandemic has started, governments
and information sharing; improving access have continued to flout WHO’s guidance;
50
to healthcare . one of the reasons, according to accredited
Only a few weeks later the pandemic treaty experts, is WHO’s feeble legal mandate in
52
was fielded in Geneva at the 148th session responding to a pandemic scenario . But
of the WHO Executive Board in January is this, really, the vulnerability that allowed
2021, championed among a handful of the local outbreak to become a global
reforms that Germany and France had float- health crisis? And are we sure that we need
ed to the WHO Member States in August to protect the entire world population from
2020, with a specific view on WHO’s work health threats through the one centralized
51
in health emergencies . The European global surveillance system that the EU
53
Council president’s push received an enthu- features as the scenario for the future?
siastic welcome from the WHO Director
General — “I think a pandemic treaty is the
best thing that we can do that can bring the
50 h
ttps://www.consilium.europa.eu/en/press/ 52 V
ijav, S. L., (2020). WHO’s Legal Mandate Is Weak In
press-releases/2020/12/03/press-release-by-president- Responding to COVID-19 Emergency; But Changes
charles-michel-on-an-international-treaty-on-pandemics/ Are Up To Member States. Health Policy Watch.
23 April 2020, https://healthpolicy-watch.news/
51 h
ttps://www.reuters.com/article/ whos-legal-mandate-is-weak-in-responding-to-covid-19-
us-health-coronavirus-who-reform-exclusi-idUSKCN25F1TT emergency-but-changes-are-up-to-member-states/
53 h
ttps://www.consilium.europa.eu/en/policies/coronavirus/
pandemic-treaty/15
In the longstanding quest for setting up a framework for emergency coordination and
governance mechanism capable of dealing countries’ response exists already, and has
54
with health emergencies we need to recall existed for some time: the International
55
that an instrument of international law Health Regulations (IHR) adopted by the
that endows the WHO with the normative World Health Assembly (WHA) in 1969.
The WHO International Health Regulations (IHR)
The WHO has been often contested by scholar and legal analysts for its rather
restrained initiative in shaping new binding norms under its Constitution56. Its
main instruments, adopted under Article 21 of the WHO Constitution (something
that is somewhat contentious in the current debate) are the International Sanitary
Regulations, the International Health Regulations (IHR), and the Nomenclature
Regulations. The outbreak of the Severe Acute Respiratory Syndrome (SARS) in 2002
gave impetus to the new negotiating efforts aimed at revising the IHR, since the
1969 version of the IHR was deemed to be inadequate for the globalized scenarios
of the 21st Century. In 2005, the 58th WHA unanimously agreed on the revision
of the IHR with the task to “prevent, protect against, control, and provide a public
health response to the international spread of disease”. The legal instrument was
then adapted to the exponential increase in international travel and trade, and the
potentially revamped emergence of international disease threats and other health
risks. Under IHR, Member States are required to develop, strengthen and maintain
core public health capacities for surveillance and response by using existing national
resources to control diseases that cross borders. The IHR has established an early
warning system and helps guide countries to detect, assess and respond to health
threats and inform other countries quickly. WHO is required to be notified of health
events and ensure coordination. Under the IHR, countries are required to notify and
report events and other information through their National IHR Focal Points (NFP) to
a regional WHO IHR Contact Point.
54 In 1851, a group of mostly European nations gathered Indeed, some very specific conventions on the spread of
in Paris to craft a common framework for harmonizing some infectious diseases were agreed in the following
responses to the international spread of diseases. Back decades”, from Von Bogdandy, A., and Villareal, P.A.,
then, pandemics provoked by cholera and the plague (2020). International Law on Pandemic Response: A First
spread recurrently through several countries, and the Stocktaking in Light of the Coronavirus Crisis. Max Planck
most common measures were quarantines of incoming Institute for Comparative Public Law and International Law,
travelers and ships. At the end of the XIX century, the MPIL Research Paper Series, No 2020-07, p. 3.
main aim was not full coordination of how to deal with
outbreaks altogether. The main goal was “to harmonize 55 h
ttps://www.who.int/publications/i/item/9789241580410
measures taken by states against international trade and
travel. Disparities between the measures adopted by states 56 A
ginam O. (2014), “Mission (Im)possible? The WHO as a
were disrupting commercial activities”. As the main global ‘Norm Enterpreneur in Global Health Governance”, Freeman
mode of transportation was by sea, the Paris conference M., Hawkes S. and Bennet B. (eds), Law and Global Health:
in 1851 was focused on measures restricting maritime Current Issues, 2014, 559-562. Also, Gostin L, Sridhar D.
transportation, particularly at the arrival into foreign ports. and Hougendobler D. (2015), “The normative authority of
“The project was unsuccessful. At the diplomatic level, the World Health Organization”, 129 Public Health, 2015,
several states were simply unwilling to cave in to their police 855 and 858. Finally, Toebes B. (2018), “Global Health
powers to confront outbreaks. What remained was the Law: Defining the Field”, in Burci G-L . and Toebes B. (eds),
understanding that agreements would become necessary. Research Book on Global Health Law, 2018, E. Elgar, p. 11.16
The IHR acts as an assessment tool to help Member States assess the severity of
a health event, and provides a framework for consulting with WHO. This enables
WHO to ensure appropriate technical collaboration for effective prevention of such
emergencies or containment of outbreaks and, under certain defined circumstanc-
es, inform other Member States of the public health risks where action is necessary
on their part.
Since entering into force in June 2007, the IHR 2005 has been the core tool to
regulate disease outbreaks with an international dimension. It is a detailed and
encompassing legal instrument with 66 Articles, 9 Annexes and 2 Appendixes
covering all WHO Member States (194) plus Liechtenstein and the Holy See. The
IHR approach has been innovative in many ways57: “It was meant to usher an era of
rules-based disease surveillance and response, where state sovereignty gives in to
shared goals of the international community. Its obligations and protocols reflect
a condensed understanding of best practices developed through many decades of
diplomatic negotiations, expert input, and also on-the-ground-operations in health
campaigns”58.
The IHR reflects a range of good practices that were developed and have sustained
for decades, if not centuries, and remain a milestone against which Member States’
compliance and responses can and must be measured. It is hardly recalled these
days that the IHR still distils the international consensus on how health emergencies
and pandemics should be dealt with.
57 F
idler D (2005), From International Sanitary Conventions 58 V
on Bogdandy A. and Villarreal P.A. (2020), International
to Global Health Security: The New International Health Law on Pandemic Response: A First Stocktaking in Light
Regulations, Chinese Journal of International Law, Volume of the Coronavirus Crisis, MPIL Research Paper Series, No
4, Issue 2, November 2005, pp. 325-392, https://doi. 2020-07, Max Planck Institute for Comparative Public Law
org/10.1093/chinesejil/jmi029 and International Law, March 2020, https://papers.ssrn.
com/sol3/papers.cfm?abstract_id=356165017
It is undeniable that while information tion and compliance evaluation, along with
sharing by Member States and the WHO ambiguities in relation to travel restrictions.
Secretariat is the foundation of interna- Hence, the IHR has ended up being the
tional disease surveillance and response, easy scapegoat of policymakers and global
the COVID-19 pandemic has revealed experts59 in light of its apparent limitations
the not-so-hard political culture around in the middle of the harshest phases of the
the implementation of the IHR hard law COVID-19 pandemic in 2020. Even the WHO
provisions. The iterated violations of legal seems to have somewhat neglected the
obligations have reflected critical deficits tool in the early phase of the emergency60 .
that need to be recognized in the existing The reality is that IHR does have implemen-
framework, including the binary conditions tation mechanisms developed by the IHR
for the declaration of a Public Emergency of Monitoring and Evaluation Framework, with
International Concern (PHEIC), the failure mandatory components, that need to be
in pursuing capacity building in countries, enforced to achieve a robust integration of
the weak system of accountability and IHR’s object and purpose61, including WHO’s
financial support to health sectors, the own obligations under the IHR62.
lack of a process for independent verifica-
59 P
ara 111 of the Review Committee Report on the 61 B
ehrendt, S. and Mueller, A. (2021). Why the rush? A call for
International Health Regulations (RCR-IHR) states that critical reflection on the legal and human rights implications
“the IHR has no teeth”, i.e. there are no enforcement of a potential new international treaty on pandemics. EJIL:
mechanisms. Likewise, the Global Preparedness Monitoring Talk! The European Journal of International Law, 29th July
Board 2020 report claims that the “IHR lack of enforcement 2021, https://www.ejiltalk.org/why-the-rush-a-call-for-critical-
mechanisms has made it difficult for WHO to ensure reflection-on-the-legal-and-human-rights-implications-of-
compliance” , Cfr. https://www.gpmb.org/annual-reports/ a-potential-new-international-treaty-on-pandemics/?utm_
annual-report-2020, p.45. source=mailpoet&utm_medium=email&utm_campaign=ejil-
talk-newsletter-post-title_2
60 V
illareal P.A. (2020), “COVID-19 Symposium: “Can They
Really Do That?” States’ Obligations Under the International 62 V
on Bogdandy A. and Villarreal P.A. (2020), op. cit, p. 8 and
Health Regulations in Light of COVID-19”, Part II, in Opinio p. 20.
Juris, 31 March 2020, http://opiniojuris.org/2020/03/31/
covid-19-symposium-can-they-really-do-that-states-
obligations-under-the-international-health-regulations-in-
light-of-covid-19-part-ii/18
BEATING THE TREATY DRUMS
In March 2021, the EU, the WHO and 25 heads of states and governments
signed a call to the international community to begin the negotiation pro-
cess to sign a treaty on pandemics. The call, published in several newspa-
pers around the world, has formed the basis for the creation of the “Friends
of the Treaty”, a group of countries asking to engage in building “a more
robust international health architecture” focused on pandemic prepared-
ness and response. The rationale being that “at a time when COVID-19 has
exploited our weaknesses and divisions, we must seize this opportunity
and come together as a global community”63.
The call refers to the need for improving With such a high-profile international call
alert systems, data-sharing, research, and and with such an institutional push, the
local, regional and global production and pandemic treaty proposal easily landed
distribution of medical and public health into the agenda of the 74th World Health
counter measures. The focus is on enhanc- Assembly in May 2021. The topic attracted
ing the “sharing of information”, “sharing substantive interest prior to the assembly,
of pathogens” and “sharing of technolo- mostly deriving from the numerous Member
gies”, as highlighted by the WHO Director States that had raised concerns in the lead
General Dr Tedros Adhanom Ghebreyesus up to the governing body session. With Chile
when presenting the call at the WHO with heading the discussion66, hesitance was
European Council President Charles Michel64. variously expressed at WHA74 on getting
The international pandemic treaty, the call engrossed in discussions about a treaty to
recites, “would make it possible to integrate avoid a future pandemic right in the middle
the One Health approach in the international of the COVID-19 crisis. “Only once COVID
health architecture, thereby connecting the has been defeated will it be appropriate
health of humans, animals and the planet”65. for us to consider fundamental changes to
Finally, it does recognize that “existing global the way WHO works and new treaties or
health instruments, especially the IHR, would conventions. We must understand why the
underpin such a treaty”. instruments we have are not working. Is the
problem with the instruments themselves?
63 h
ttps://www.who.int/news-room/commentaries/detail/ 65 Ibidem
op-ed---covid-19-shows-why-united-action-is-needed-for-
more-robust-international-health-architecture. 66 h
ttps://minrel.gob.cl/news/who-will-hold-a-special-session-
to-analyze-the-international-pandemic.
64 h
ttps://www.who.int/news/item/30-03-2021-global-leaders-
unite-in-urgent-call-for-international-pandemic-treatyYou can also read
