Governing Pandemics Snapshot
Standing ovation at the close of the special World Health Assembly session 1 December 2021, in which member states agreed to negotiate a new pandemic accord.

A briefing series on the status of moves to reform the global system of pandemic preparedness and response launches today, just ahead of the WHO Executive Board review of progress next week. Looking back at 2022 and forward into 2023, this series by the Global Health Center of the Geneva Graduate Institute, published in collaboration with Health Policy Watch, provides an update on the progress so far in the WHO-led negotiations over a new pandemic treaty.  It also looks at the progress in revisions to the existing emergency rules of the International Health Regulations (IHR) – while considering what could happen next. The complete “Governing Pandemics Snapshot”, also includes briefings on reforms being considered in the financing of pandemics as well as the rules around pathogen access and benefit-sharing. 

Pandemic treaty: tough political negotiations ahead 

By Daniela Morich

Following a milestone World Health Assembly decision in late 2021, WHO Member States have been negotiating an international agreement on pandemic prevention, preparedness and response to strengthen global capacities and resilience for future pandemics.

The year 2022 was the year for the advance of these pandemic treaty talks with the establishment of a formal process, a strict timeline, and initial discussions on principles. In 2023, negotiations will shift from broad consultations to tough politics.

The Covid-19 pandemic brought to the surface the shortcomings of global health governance for emergencies and accelerated discussions to reform it. At a special WHA session in late 2021,  the second-ever convened by the World Health Assembly, WHO Member States agreed to establish an intergovernmental negotiating body (INB) to negotiate a new “instrument” to strengthen pandemic prevention, preparedness and response – or, a pandemic treaty.

The INB initiated its work in early 2022 and is to present the outcome of the negotiations to the 77th World Health Assembly (WHA) in May 2024. This is an ambitious timeline for a complex international rule-making process, especially as it will run in parallel to the process to revise the International Health Regulations (IHR), a pre-existing WHO instrument that governs the cross-border spread of infectious disease.

Nonetheless, the INB is moving forward and achieved two mid-term milestones in 2022. In July, at the second INB meeting, Member States agreed that the instrument should be legally binding, which suggests countries are ready to accept new international obligations to improve pandemic prevention and response. In addition, the INB engaged in intensive intersessional consultations to seek input not only from governments or well-established experts – the traditional protagonists of international rulemaking – but also from civil society organizations and the public. Despite these efforts, commentators have argued that the process is still not as inclusive as it should be. As work on the instrument progresses, negotiators should expect more demands to expand meaningful participation of stakeholders beyond governments.

The INB’s Bureau (six countries elected to lead the process) released the ‘conceptual zero draft’ (CZD) ahead of the third meeting of the INB, which took place in December 2022. The CZD –which can be seen as the first rough draft of the accord – brought to the negotiating table a broad set of issues and highlighted a collective willingness to ensure a more equitable response to future threats. It also reflected tough divisions on several issues, in particular, intellectual property (IP), pathogen- and benefit- sharing, One Health, financing and accountability, which will likely become more visible and contentious as negotiations move to the next phase.

At the conclusion of the gathering, Member States directed the INB Bureau to develop the ‘zero draft’. Delegates strongly encouraged the Bureau to move away from the vague and aspirational language of the CZD and to present clear legal provisions and definitions, including one for ‘pandemic’, for Member States to negotiate in earnest.

The INB Bureau is expected to circulate the zero draft in early February 2023. At this stage, the negotiation process will likely shift from a consultation and information gathering process to become a more politicized, polarized and consequential debate. The time available to negotiators is constrained. The 2023-2024 agenda includes 6 additional INB meetings scheduled over 14 months in addition to meetings of the drafting groups, with the IHR revision process unfolding in parallel. Considering the complexity of the issues on the table, the existing divisions between Member States, and the limited time available to negotiators, achieving meaningful progress in this new highly-political phase is the tall order for 2023. 

An existential moment for the International Health Regulations

Dr Hiroki Nakatani, chairman of the May World Health Assembly, applauds the WHA decision to revise the International Health Regulations.

By Gian Luca Burci

While negotiations on a new pandemic instrument continue in 2023-24,  the International Health Regulations (IHR) remain  the sole global legally-binding instrument devoted to the prevention and control of the international spread of disease – and revisions to those are already underway.  Can the two parallel processes complement each other or will they add new layers of confusion?  That is the challenge negotiators and member states will face. 

Although considered an essential component of the global health security toolbox, the IHR attracted severe criticism and allegedly low compliance during the COVID-19 pandemic. The momentum towards a new “pandemic treaty”, beginning in late 2020, was in part a reaction to the perceived weaknesses and limitations of the IHR. 

The difficult and sometimes confusing discussions in the Working Group on strengthening WHO preparedness and response to health emergencies created by the 74th World Health Assembly in 2021 to discuss reforms, ultimately led to a WHA decision in December 2021 to launch negotiations on a new legal instrument (“pandemic treaty”) to be adopted by 2024. 

Then, in 2022, attention turned back to the IHR as member states sought faster solutions for the most burning issues that had surfaced during the pandemic – particularly around outbreak reporting and IHR compliance. As a result, a complex IHR amendment process is also now underway. The two processes (IHR revisions and pandemic accord) are thus now proceeding in parallel, with hard decisions still to be made on the issues that the revised IHR will tackle – as compared to the new pandemic accord.  

Negotiations to amend the IHR in 2023/2024 raise an existential question about their raison d’etre: should they retain their technical, operational character, or expand significantly to address highly political questions such as those on international assistance, equity and access to technologies for disease outbreaks?

The US broke the ice by proposing its own substantial set of amendments in January 2022, and successfully winning agreement at the 75th WHA in May 2022, to both adopt a set of limited technical IHR amendments and to open up a broader process for further amendments. 

The WHA thus launched negotiations towards “targeted amendments” of the IHR with the same 2024 deadline for WHA adoption as the new pandemic accord. Member States submitted their proposed amendments by 30 September 2022 and an expert “review committee” analyzed them and presented its recommendations to the Director-General in January 2023.

A Working Group open to all Member States will work from February 2023 towards a negotiated package. The process is unusual compared to other intergovernmental negotiations, in that states hardly ever place on the table all their proposed amendments at the outset; the initial US disclosure of all its amendments, however, required a similar treatment for other states and made that approach inevitable.

Wildly diverse amendments but a few trends emerge

A patchwork of national rules around international travel, vaccines and border controls were a feature of the COVID pandemic, highlighting the inconsistent application of key IHR provisions aimed at ensuring international trade and travel during health emergencies.

The outcome of the first phase of this process is a massive aggregation of wildly diverse amendments (available here) proposed or supported by almost 100 states. They range from focused technical amendments to far-reaching changes. Despite their diversity, a few trends emerge dividing Global South and Global North countries. The most political proposals, coming in particular from the African Region, Bangladesh and India, aim at ensuring equitable access to vaccines, distributed manufacturing capacities, technology transfer, limitations on patenting and sustainable financing of national capacities. 

These proposals reflect the North-South divide that we have been witnessing in the recent treaty conferences on climate change and biodiversity and are clearly also a consequence of the inequities in access to life-saving medical countermeasures displayed during the COVID-19 pandemic. 

Other proposals, in particular from the European Union, the Eurasian Economic Union (submitted by the Russian Federation) and the United States, aim at strengthening the IHR within their current approach, e.g. by tightening compliance and accountability for information sharing, encouraging the sharing of genetic sequence data and through the use of digital technologies.

Two negotiating processes unfolding at the same time

The challenge in reaching an agreed package in time for the 2024 WHA is increased by the unprecedented parallel unfolding of two negotiating processes with the same timeline, where countries will probably submit the same types of proposals for both instruments to secure an overall favorable outcome.  An important point in this respect that is often overlooked is that amendments to the IHR will in principle enter into force at the same time for all its 196 parties, whereas the pandemic instrument – since it will likely be an international treaty – will enter into force once a critical mass of countries has ratified it and only for them, with new countries joining once they ratify. 

The broad range of proposals for the pandemic instrument and the likelihood that the US will eventually not ratify it may actually lead Global South countries to prioritize the IHR for some of the most ambitious proposals. This possibility raises one final issue. Currently, the IHR is  essentially an operational instrument to coordinate outbreak prevention and control and depoliticize WHO’s role in managing them. There is no emphasis on equity, assistance or international cooperation. Amendments proposed by Global South countries would transform it into a regulatory and transactional instrument with a more political role for WHO and differential treatment for developing countries to improve equity in the availability of health technologies. Fundamentally, negotiators will have to decide what they want the IHR to be – and if the IHR is expanded to encompass the issues of health equity then what role would the new pandemic instrument play? 

For essays on financing pandemics and pathogen and benefit sharing, see the full Governing Pandemics Snapshot here. This is the first in a periodic series of updates to be published during the year. 

About the authors

Daniela Morich is Manager and Adviser of the Governing Pandemics initiative at the Global Health Centre, and a lawyer with experience in multilateral negotiations. 
Dr Gian Luca Burci is Adjunct Professor of International Law at the Geneva Graduate Institute. He was a member of the IHR Review Committee that completed its expert analysis of the proposed IHR amendments in January 2023. He co-leads the Governing Pandemics initiative.
Dr Suerie Moon is Professor of Practice and Co-Director of the Global Health Centre, and co-leads the Governing Pandemics initiative. 
Adam Strobeyko is a Hauser Global Fellow at NYU Law and was a Doctoral Researcher for the Governing Pandemics initiative
Moeen Hosseinalipour is a master’s student in global health and international affairs at the University of Geneva and Geneva Graduate Institute, and a research assistant for the Governing Pandemics initiative. 

Image Credits: Geneva Graduate Institute.

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