As the current US Senate is unlikely to ratify a pandemic accord, it might make more sense for World Health Organization (WHO) member states to invest more effort in ensuring that the International Health Regulations (IHR) are adapted to respond to the next pandemic.

So suggested Daniel Warner, Assistant Director for International Affairs at the Geneva Centre for the Democratic Control of Armed Forces (DCAF) at an event hosted by the Geneva Graduate Institute’s Global Health Centre.

The IHR are the only global regulations to prevent the international spread of disease and contain certain binding obligations on member states.

“Any treaty must be ratified by the United States Senate, and especially in today’s Senate, it would be difficult to get any multilateral treaty passed, as opposed to changes in the IHR that don’t need Senate approval and they are covered within the WHO constitution,” said Warner.

IHR ‘more a priority’

He added that it would make sense for amendments to the IHR to be “more of a priority within the American position as opposed to some kind of treaty”. 

The US was one of the first countries to propose IHR amendments after weaknesses emerged during the COVID-19 pandemic and member states have proposed over 300 amendments.

However, given that the IHR are the world’s only legally binding protection against the spread of diseases, it is essential that they are protected from “a political dimension and from political division”, warned fellow panellist Hélène de Pooter, a senior law lecturer at the University of Franche-Comté.

Negotiations are taking place during “very difficult times for multilateralism”, De Pooter said. “The success of the ongoing negotiations at the WHO cannot be taken for granted, so the challenge for states’ representatives or diplomats is to keep health and health cooperation safe from the global disturbances that we are witnessing nowadays.” 

She added that it was “remarkable” that the IHR are not subjected to the traditional ratification process but enter into force automatically”.

As regulations are “not political instruments” but “technical and procedural tools designed for the sake of efficient cooperation and coordination in the health sector”.

As such, they should be “beneficial for all states, and for health cooperation, regardless of political party cleavages and specific national interests”. 

Universal, regardless of politics

For this reason, she appealed for the IHR to be universal in appeal to ensure that they had wide appeal and support.

The two were speaking on a panel on the concurrent negotiations on the pandemic accord and changes to the IHR, with drafts of both due to be presented at the 2024 World Health Assembly – and how to avoid a “collision” between the two processes.

Pedro Villarreal, Senior Research Fellow at the German Institute for International and Security Affairs, said that a pandemic accord might take a long time to come into being as each member state would need to ratify it.

Should a pandemic be declared soon after an accord had been passed by the World Health Assembly, only a few states might have ratified it.

“What will happen in such a situation where a pandemic is declared and it turns out that obligations are applicable to some states but not others?” Villarreal asked.

 “We will have a jigsaw puzzle of fragmented obligations, where the future pandemic response might go different ways, similar to what we saw during the COVID-19 pandemic.”

To make negotiations more efficient and fit to tackle the next pandemic, Villarreal suggested two negotiation processes could be combined.

“There could be an agreement on where to put which provisions and in which instrument each provision would be located,” he proposed.

“So why not negotiate everything together and then decide what goes where? Because first, it’s about knowing whether there is consensus at all.”

However, he acknowledged that this was “quite a tall order” as it required the mandates for negotiating each would need to be changed.

The final speaker, Elisa Morgera, Professor of Global Environmental Law at Strathclyde University Law School in the UK, said there were “several international multilateral beneficiary mechanisms” that could provide lessons for the current pandemic negotiations.

“What has then come out after decades of studying fair and equitable benefit-sharing mechanisms in international environmental law is that, fundamentally, we’re looking at enhanced international cooperation,” said Morgera, who is also Director of the One Ocean Hub.

“For research, we’re really looking at the research capacities in different states to be able to realise global objectives, and that fairness and equity boil down to: ‘what can we do in international law? What are the state obligations? What are the international mechanisms that we can devise to support fair research partnerships now in the Global North and global South countries where researchers are at very different stages in their capacities to contribute to the objectives?”

She appealed for the creation of a system that supported both the sharing and flow of global benefits and “specific benefits for specific beneficiaries”. 

“We have those important references to human rights in the draft preamble of the pandemic instrument and I think this is a crucial lens under the UN Charter for any new international law development that has to do with health and, really, human survival and flourishing.”