World Health Organization (WHO) member states have agreed that the future pandemic “treaty” currently being negotiated will be legally binding at the Intergovernmental Negotiating Body (INB) meeting that ended on Thursday – a day earlier than expected thanks to smooth negotiations.

The INB agreed that the treaty will be set up in terms of Article 19 of the WHO constitution, which enables the WHO’s highest decision-making forum, the World Health Assembly (WHA), to adopt “legally binding conventions or agreements” if agreed on by two-thirds of members to cover “any matter within the competence of the organization”. 

However, the INB did not close the door to including some “non-binding” clauses in the treaty as well as using Article 21 of the constitution “if appropriate”, which allows the WHO to adopt legally binding regulations.

WHO Director-General Dr Tedros Adhanom Ghebreyesus expressed satisfaction with the outcome of the INB meeting, the second since the body was agreed on last December.

“The legally binding instrument is very, very important, and that’s what you have decided and I am very glad to see that,” said Tedros.

“The legally binding principle is really key because this is the generation that has suffered and still suffering due to the pandemic. No generation can write this treaty or instrument or accord other than this generation, so that our children and the children of our children can  benefit and what happened over the last two to three years is not repeated in the future.”

‘Bitter pills’ to follow ‘honeymoon’

However, INB Bureau vice-chair Viroj Tangcharoensathien (Thailand) warned that the smooth running of the meeting marked the “honeymoon period”, and the tough challenge of negotiating the content of the treaty still lay ahead.

“We have achieved consensus on using Article 19 of the constitution as there was majority support to go that way, although we do not discard Article 21, and I feel that this is the honeymoon period and the honeymoon period will finish very quickly,” said Tangcharoensathien, warning of “bitter pills” at the next INB meeting scheduled for December.

“Based on the spirit and trust of INB in the Bureau and secretariat, I believe that we will be there by May 2024 and we will have achieved something substantial for the world because the world is waiting. Monkeypox is attacking us all the time and H5N1 [avian flu] is in the air,” he added.

The INB has until May 2024 to present a draft pandemic treaty to the WHA. Once it is passed, it will come into force for each Member State “in accordance with its constitutional processes”. This clause has only ever been used once – to adopt the Framework Convention on Tobacco Control, which contains both binding and non-binding clauses.

“The Health Assembly could adopt a legally binding instrument (under either Article 19 or 21 of the Constitution), and that instrument could contain both legally binding and non-legally binding provisions, with the non-binding provisions being, for example, recitals, principles, recommendations or aspirations,” according to a

According to a WHO explainer issued before the INB meeting, a legally binding instrument can contain “both legally binding and non-legally binding provisions, with the non-binding provisions being, for example, recitals, principles, recommendations or aspirations”, and this practice is “standard both in WHO and with other international instruments”.

Process ahead

In December 2021, WHO’s Member States decided at a WHA special session to establish the INB to draft an international instrument on pandemic prevention, preparedness and response.

The INB is expected to deliver a progress report to the 76th World Health Assembly in 2023 and submit its draft agreement to the WHA’s 77th meeting in May 2024.

The INB Bureau is comprised of co-chairs Roland Driece (Netherlands) and Precious Matsoso (South Africa), with vice-chairs Tovar da Silva Nunes(Brazil), Ahmed Soliman(Egypt), Kazuho Taguchi (Japan), and Thailand’s Viroj Tangcharoensathien, representing all WHO regions.

Between now and the end of October, the INB will conduct regional briefings and public hearings, which will result in a “zero draft” agreement to be presented to the next INB meeting on 5 December.