Some civil society organisations (CSO) are sceptical about whether a ‘pandemic treaty’ is the best way to address future global health crises, while treaty supporters say it will provide a legal framework binding countries and global health bodies to more agile and rapid responses to future outbreaks. 

A session Monday sponsored by the Geneva Global Health Hub (G2H2) brought leading CSOs, diplomats, academics and even WHO’s chief legal counsel face to face to air those views, in the context of a research initiative on the treaty being undertaken by the hub. 

The debate comes just weeks ahead of a planned special session of the World Health Assembly which is to determine whether the global body will indeed move forward on a Treaty, as a key measure for improving pandemic response. 

The treaty initiative has been supported most visibly by European countries, led by European Commission President, Charles Michel, who in a separate session at the World Health Summit in Berlin that the treaty would guarantee “access to information, financing, vaccines and countermeasures. It would increase capacity and resilience – at all levels.” 

With @DrTedros we proposed an international #PandemicTreaty rooted in @WHO constitution.

It would guarantee equity & inclusiveness.

A legally binding instrument would be the most effective basis for prevention, surveillance, collection and exchange of scientific data.#WHS2021 pic.twitter.com/lbWkc3G5XE

— Charles Michel (@eucopresident) October 25, 2021

Diversion or game changer?

Some of the civil society organisations that have expressed disquiet about the treaty proposal perceive it as a potential distraction or diversion by wealthy countries from the so-called TRIPS waiver proposal, currently under consideration by thee World Trade Organization. The proposal by South Africa and India for a broad-based intellectual property waiver on COVID vaccines and treatments, now being debated by the WTO’s TRIPS Council , is perceived by civil society as a game changer that would help open the doors to despearately needed COVID vaccine and medicines manufacturing in Africa and the global South. 

Many of the European countries that have been among the most staunch opponents of the TRIPS waiver are also key pandemic treaty supporters, noted journalist Priti Patnaik, who is researching stakeholders’ views on the pandemic treaty for G2H2 -giving rise to the CSO suspicions.

And yet at the same time, some developing countries have supported a pandemic treaty because they believe it would “rein in the influence of non-state actors, including powerful foundations, and get some binding obligations to apply to industry to avoid vaccine inequities in the future,” she added. 

‘Switch-and-bait’ tactic

Unni Karunakara, senior fellow at Yale’s Global Health Justice Partnership, said that the major focus should be on deploying available tools and medicines to every corner of the world, rather than negotiations over a new treaty: “Shouldn’t global vaccination coverage be an overwhelming priority now?” he asked.

“We do have frameworks and tools. They’re not perfect, but there are enough tools for us to overcome this crisis together,” said Karunakara, a former president of Medecins sans Frontieres.

“What is lacking, however, is the political will to share essential resources and tools, even with all of the treaties in place.”

His comments reflecting the cynicism of other civil society activists who see “a big overlap between the countries that are blocking the TRIPS waiver, and the countries that are supporting the pandemic treaty.

“So there’s a perception of a ‘switch-and-bait’ tactic that reeks of bad faith,” he added.

And while transparency measures – such as the mandatory sharing of genetic materials by countries where outbreaks are suspected – have been discussed as key treaty features, similar mandates for transparency or sharing of vaccines and medicines technologies have been fiercely opposed by the EU, he pointed out.

“TRIPS waiver-blocking countries have made the case for voluntary actions by pharma to ensure access to essential COVID-19 medical tools, so they treat Big Pharma with kid gloves,” Karunakara observered.

“Interestingly, they take a very different tone and approach to the global south in the treaty, insisting on enforceability in the sharing of information and materials with WHO and other governments to allow for independent verification.” 

“The assumption here is that global south is the problem, that diseases originated in poor country, and pose national security risks to rich countries.”

If you are against the treaty – what is your multilateral alternative?

Björn Kümmel, deputy head of the global health unit in the German Federal Ministry of Health, disputed that there is any direct political link between the treaty and the TRIPS waiver – or the kinds of hidden agendas that civil society groups fear.

“I doubt that it’s, from a logical point of view, right to say that even though a country has it stands on the TRIPS waiver, you can’t tackle other equity issues,” he told the G2H2 session.

“That’s one angle to look at, the TRIPS waiver, but there are many more angles to be looked at. So to say that that is the only magic bullet, I think that would be fully wrong, I wouldn’t limit it to this.

“I think that equity goes far beyond, and certainly, if a treaty was negotiated, it’s quite clear that this [TRIPS waive] will be put on the table, and that all governments will have to look at the different interests that are on the table and negotiate them with an open outcome.”

He noted that the treaty was first proposed formally by Chile, not the European Commission, and has the support of a wide array of countries, including South Africa, Kenya, and Tunisia, as well as Thailand and Indonesia.  

Anything better than ‘Chaos’ we see now

Describing the current global health situation as “dysfunctional”, Kümmel asked the G2H2 session: “If you are against the treaty, tell us what is your multilateral alternative to it, to be realistically implemented, lets say in the next five years?”  

“What the countries who are proposing a treaty are trying to say is:  anything is better, than compared to the chaos that we’re seeing currently.

“Legal clarity is needed, and it will be …a painful exercise for many of us, and most likely a difficult one for many governments, including mine, most likely also others. But in the end, it’s this is multilateralism.”

Uniquely in the global health landscape – and unlike environment, trade or finance – there is a dearth of global treaty instruments. In fact, among the dozens of international treaties in force today, the only two binding instruments in global health today are the IHR and and the Framework Convention on Tobacco Control (FCTC), he pointed out.

Pandemic is a ‘window of opportunity’ for bigger changes

In light of the outstanding questions, however, the working group of countries that are preparing for the WHA special session had devised a “three-step approach” to their deliberations on a way forward.

They are considering in parallel: WHO internal reform measures; revisions in the existing International Health Regulations that currently govern global emergency response; and finally, the Pandemic Treaty alternative. 

In terms of WHO reform,  the conclusion has been that such measures would “not be sufficient in order to overcome the next pandemic,” Kümmel said. 

Amendments to the International Health Regulations (IHR) also would take time to negotiate.  And a key question here is: “would they be a game changer for the next pandemic to come? Certainly not,” he added, noting that there is “no compliance mechanism that currently is foreseen in the IHR.”

So against the other options, “an international binding agreement is interesting,” he said. “And why are many colleagues pushing for this to happen now? Well, it’s the reality that after Ebola and past pandemics the global community was unable to implement the lessons learned,” he said.

And if negotiations don’t begin now, in the heat of the ongoing crisis, they will never happen at all.

“Many of the international independent panels have called for bold recommendations to be implemented,” Kümmel reminded the group. “One of them is the treaty. But many of those recommendations have never reached successful implementation, because the window of opportunity for real structural changes normally vanishes with the next crisis to come after the pandemic.”

The treaty would also retain WHO’s centrality as the nerve center of the global health architecture – amidst a plethora of new health initiatives emerging in Europe  and elsewhere:

“There are a multitude of ideas and recommendations, and the treaty is a legal framework into which most of the other recommendations would fit,” he said, in reference to recent proposals such as one by the Pan European Commission on Health and Sustainable Development to create a new global health board under G-20 auspices. Others have talked about a new global health finance board in association with the World Bank and/or a new UN-level Global Health Threats Council, under the auspices of the UN General Assembly.

So the Pandemic Treaty is “also a mechanism to provide WHO with legitimacy after this crisis,” he stressed. “Obviously there are voices out there who could see alternative approaches.  However, I think the ones who are in favour of this treaty have clearly articulated that WHO is the right forum because its the truly multilateral forum for global health.”

WHO precedents for equitable access to vaccines?

Germany is not the only actor that sees the treaty as a means of keeping WHO as the world’s main global health meeting place.

WHO’s Director General Dr Tedros Adhanom Ghebreyesus has himself come out in support for the pandemic treaty measure – breaking ranks with previous agency heads who usually remained aloof of controversial measures under consideration by member states.

WHO is therefore keenly interested in how civil society groups may help lead or shape views on the treaty negotiations – and this interest was reflected in a cameo appearance at the G2H2 event by Stephen Solomon, WHO’s principal legal officer.

Solomon said it was “really helpful” to understand some of the “scepticism” around the pandemic treaty initiatives. 

“Understanding the the concern about an agenda driven issue here is very important for the [WHO]  Secretariat,” Solomon told the group.

At the same time, beyond the immediate COVID crisis, other WHO emergency response frameworks already in place also could perhaps benefit from the stronger legal backpone that a pandemic treaty might provide, he pointed out.

One example is the Pandemic Influenza Preparedness (PIP) framework, which mandates that 10% of global flu pandemic vaccine production supply goes to WHO for direct distribution, based upon public health needs. Another is WHO’s Global Action Plan for influenza vaccines.

These “are meant to address equity issues in a number of epidemics, not necessarily pandemics,” Solomon said. 

“I would be very interested in reactions to particular frameworks meant to address inequities, like the pandemic influenza preparedness (PIP) framework, not legally binding. Or like the WHO Global Action Plan (GAP) for influenza vaccines, also not legally binding. 

“But both are interesting and potentially of important reference to pandemic preparedness and response. PIP basically says 10% of global pandemic vaccine production supply goes to WHO for distribution on the declaration of an influenza pandemic for distribution based on public health needs, and we have legally binding contracts for that 10%,” said Solomon.

“Could that be a reference point for responding to future pandemics?

“If so, would it be useful to put that in more of a legal framework because of weaknesses within that structure –  particularly the idea of countries not allowing export for vaccines already under contract?” Solomon asked.

Similarly, the Global Action Plan for influenza vaccines was a 10-year, non-binding arrangement that aimed to better distribute capacity for flu vaccine production, including among low- and middle-income member states, he pointed out, asking:

“Could that also benefit, or not, from a normatively binding architecture?”

The final research report will be launched by G2H2 on 24 November.

–Elaine Ruth Fletcher contributed to the writing of this story.

Image Credits: WHO / Antoine Tardy, EU Council, C Black, WHO.