Through its decision SSA2(5) of 1 December 2021, the World Health Assembly (WHA) established an intergovernmental body mandated to draft and negotiate a convention or other international instrument on pandemics.[1] Not without reason, the WHO Director-General hailed this decision as “historic in nature”, since it offers “a once-in-a-generation opportunity to strengthen the global health architecture to protect and promote the well-being of all people”.[2]
While this important decision is certainly to be welcomed, we can only regret the astonishing slowness of the process planned to implement it.
Yet, the decision was taken at a special session of the WHA, which was exclusively convened for this purpose from 29 November to 1 December 2021, with all the haste wanted by a rapid response to the devastating consequences of COVID-19.[3] Paradoxically, however, the timetable for the work of the intergovernmental negotiating body is desperately slow. It provides that: (i) the first meeting of that body will be held in March 2022 to elect its officers and define its programme;[4] (ii) its second meeting will take place in August 2022 to identify the provision of the WHO Constitution under which the instrument should be adopted;[5] (iii) the intergovernmental body will then submit a progress report to WHA76, i.e. in May 2023; (iv) finally, it will present its outcome to WHA77, that is: not before May 2024![6] Is there or is there not a health emergency in the face of the pandemic? Spending three years drafting a convention in a state of emergency seems disconnected from the health reality.
A resolutely more diligent stance is needed to address the global resurgence of the pandemic crisis. A tighter timeline remains conceivable, should WHO Member States agree to it. To this end, a new WHA special session could be convened in December 2022,[7] with the sole purpose of considering and adopting the draft convention on pandemics, which would have been previously developed and negotiated by the intergovernmental body established by WHO.
From this perspective, Member States could adjust the terms of decision SSA2(5): (i) first during the next WHO Executive Board (24-29 January 2022), whose agenda includes items suitable for a conversation on how to reschedule the meetings/activities of the negotiating body[8]; (ii) then through WHA75 (22-28 May 2022), which could endorse the intergovernmental body’s revised calendar of meetings and confirm the willingness of Member States to hold a special session of the WHA in December 2022.
Such a shortened timetable would be coupled with an intensification of the meetings of the negotiating body, which would make it possible to conclude the convention before the end of 2022. This is not utopian. It is evidenced by the sustained engagement of the Working Group on Strengthening WHO Preparedness and Response to Health Emergencies, which carried out all its tasks and held five close meetings in five months, between mid-July and mid-November 2021, at the end of which it delivered its report assessing the benefits of a convention or similar instrument on pandemics.[9]
In a comparable context of a serious disaster with transboundary effects, that of the explosion of a reactor at the Chernobyl nuclear power plant on 26 April 1986, two conventions had been negotiated and adopted in just five months to the day under the International Atomic Energy Agency: the Convention on Early Notification of a Nuclear Accident and the Convention on Assistance in the Case of a Nuclear Accident or Radiological Emergency.[10] Why should such a feat not be replicable today within the framework of WHO in front of a global pandemic that has already killed more than 5 million human beings around the world?[11]
This approach is the one advocated by the International Centre for Comparative Environmental Law (CIDCE), an international NGO in special consultative status with the United Nations. In support of the WHO initiative, CIDCE has urgently set up a team of legal experts, specializing in health law, environmental law and human rights,[12] to prepare a draft convention on pandemics. After three months of volunteer work, from September to November 2021, a draft convention was published on the CIDCE website, with a rationale arguing for its adoption.[13] As an international NGO dedicated to environmental law, CIDCE naturally aims to protect human health and animal health in an emergency context.
The disastrous planetary toll of COVID-19 has revealed the common vulnerability of nations in the face of a global pandemic, the devastating fallout of which, both human, economic, social, sanitary and environmental, has spared no single country. No individual State has been able to overcome without pitfalls the multifaceted crisis that has been unleashed. Clearly, the community of nations was not adequately equipped to manage the crisis quickly and effectively, both individually and collectively.
One of the factors limiting the capacity for joint international response to acute epidemic outbreaks is the lack of an international convention dealing specifically with pandemics. Admittedly, the 2005 International Health Regulations, adopted and implemented by WHO, represent a major tool for epidemic control, but they do not fully meet the specific requisites of the urgent and coordinated response that a widespread, yet lightning, pandemic entails. Hence the need for a global treaty against pandemics that mobilizes the entire international community.
It is now recognized that the resurgence of pandemics is caused by anthropogenic interference in natural ecosystems. The complex interconnection that exists between living species is often the root cause of zoonoses, the occurrence of which is linked to the close interdependence between human health, animal health, environmental quality and climate change. Therefore, the multisectoral “One Health” approach is at the heart of the draft convention. Being at the crossroads of all disciplines relating to the human-animal-environment interface, it makes it possible to anticipate, prevent, detect and control diseases that are transmitted from animals to humans. It stems from a “planetary health” approach that intimately integrates the well-being of humanity and safeguards other forms of life.
The draft convention is underpinned by the human right to a healthy life in harmony with nature, in an environment conducive to the achievement of the highest possible level of health and well-being, for the benefit of present and future generations. On this basis, the convention’s text aims very broadly to prevent, anticipate, contain, manage and eradicate pandemics in a rapid, efficient, equitable, united and inclusive manner, while respecting the rights of humanity and mindful of the planetary boundaries
With regard to pandemic preparedness, the draft convention urges States to put in place coordinated national strategies involving health, veterinary and environmental authorities; to develop scientific research on zoonotic risks; to have the necessary specialized medical and health personnel and the infrastructure needed; to strengthen epidemiological surveillance through early detection and warning systems.
To respond to pandemics, States must alert the population when a pandemic outbreak is detected and protect them effectively by means of an emergency plan, while transparently notifying potentially affected States. Vaccine equity is enshrined, recognizing that large-scale vaccination and universal access to vaccines are a global public good. The same goes for medicines, means of screening and medical equipment, the availability of which must be universal. In this spirit, States Parties cooperate in providing and receiving all necessary assistance, bearing in mind the special needs of developing countries.
Strengthening of scientific and technical cooperation on pandemics is an essential part of the draft convention, which aims in particular to promote the transfer of technologies and abilities. In view of this, an Intergovernmental Panel of Experts on Pandemics (IPEP) is to be set up to collect and assess data on the origins, prevention and management of pandemics and to provide, in an impartial manner, scientific, technical, socio-economic and legal advice.
To facilitate effective implementation of the convention, increased coordination of actions carried out by the international agencies concerned by pandemics is necessary between especially the World Health Organization, the Food and Agriculture Organization of the United Nations, the World Organization for Animal Health, the United Nations Environment Programme, the World Trade Organization and the World Bank. Lastly, States commit to allocating adequate, predictable and sustainable financial resources for pandemic preparedness and response programmes.
Such a convention would therefore help to enhance engagement of all stakeholders and consolidate multisectoral partnerships, offering a dialogue and convergence framework for the coherence of approaches, the coordination of actions and the synergy of interventions.
Being a global threat, a pandemic warrants global solidarity for a global solution through a global convention. The well-being of humankind and the viability of the planet are at stake.
In pandemic emergency, legal emergency.
[1] Decision entitled: “The World Together: Establishment of an intergovernmental negotiating body to strengthen pandemic prevention, preparedness and response”, https://apps.who.int/gb/ebwha/pdf_files/WHASSA2/SSA2(5)-en.pdf.
[2] www.who.int/news/item/01-12-2021-world-health-assembly-agrees-to-launch-process-to-develop-historic-global-accord-on-pandemic-prevention-preparedness-and-response.
[3] In more than 70 years of WHO’s existence, only two special sessions of the WHA have had to be convened: before the second that has just been held, the first was motivated by the urgency of electing the Director-General of the Organization following the unexpected death, in 2006, of the then incumbent.
[4] Item 1-2) of decision SSA2(5).
[5] Item 1-3) of decision SSA2(5).
[6] Item 1-5) of decision SSA2(5).
[7] According to Article 13 of the WHO Constitution, special sessions of the WHA are convened at the request of the Executive Board or of a majority of Member States. The last special session was held at the request of WHA74, in its decision WHA74(16) of 31 May 2021, https://apps.who.int/gb/ebwha/pdf_files/WHA74/A74(16)-en.pdf.
[8] Item 3, “Outcome of the Second special session of the World Health Assembly, held to consider developing a WHO convention, agreement or other international instrument on pandemic preparedness and response”, as well as item 15, “Public health emergencies: preparedness and response”, which has has two relevant sub-items: (i) 15.1 – “Strengthening WHO preparedness for and response to health emergencies” (documents EB150/15 and EB150/160); and (ii) 15.2 – “Standing Committee on Pandemic and Emergency Preparedness and Response” (document EB150/17): Provisional agenda, EB150/1, https://apps.who.int/gb/ebwha/pdf_files/EB150/B150_1-en.pdf.
[9] Report of the Member States Working Group on Strengthening WHO Preparedness and Response to Health Emergencies to the special session of the World Health Assembly, SSA2/3, 23 November 2021, https://apps.who.int/gb/ebwha/pdf_files/WHASSA2/SSA2_3-en.pdf.
[10] Both adopted on 26 September 1986; the first entered into force on 27 October 1986, the second on 26 September 1987: IAEA, “Nuclear safety conventions”, www.iaea.org/topics/nuclear-safety-conventions.
[11] As of 19 January 2022, a total of 5,551,314 deaths attributed to COVID-19 had been reported by WHO: WHO Coronavirus (COVID-19) Dashboard, https://covid19.who.int.
[12] The list of members composing this team is available at: https://drive.google.com/file/d/1LLH3aq-8Che91knJbsHr-2HcKOK9Rz59/view.
[13] The draft convention and the rationale behind it are available in English, French and Spanish at: https://cidce.org/en/pandemics-and-environment-2/.