By Lawrence O. Gostin
The COVID-19 pandemic has exposed marked limitations in the International Health Regulations (IHR) and constrained authorities of the World Health Organization (WHO). With a rising imperative to advance pandemic preparedness and response, more than twenty heads of government proposed a new pandemic treaty. This prospective pandemic treaty offers a pathway to develop innovative international legal obligations, strengthening core capacities, good governance, and compliance mechanisms to prepare for novel outbreaks with pandemic potential.
States have provided WHO with expansive constitutional powers to develop global health law. Pursuant to these powers, the World Health Assembly has codified evolving authorities to coordinate international action to prevent, detect, and respond to pandemic threats. In developing global health law under article 21 of the WHO Constitution, the IHR stand as the leading legal agreement to respond to the globalized threat of infectious diseases. The current IHR, revised comprehensively in 2005 following the SARS-1 epidemic, has near-universal participation from WHO member states, empowering WHO and governments in detecting and responding to public health emergencies of international concern.
However, the COVID-19 pandemic has revealed deep flaws in pandemic preparedness and response, as the IHR have faced limitations in shaping national responses. Just as important, political controversies have weakened WHO governance and institutional capacities. Despite major IHR reforms in 2005, the national and global response to COVID-19 has seen failures to notify WHO promptly of novel outbreaks, delays in declaring a Public Health Emergency of International Concern (PHEIC), non-compliance with WHO recommendations on outbreak responses, state health measures disproportionate to public health risks, and a lack of global solidarity and equitable allocation of health resources, especially SARS-Cov-2 vaccines.
Redressing IHR limitations in shaping national and global responses, new treaty structures will be needed to face future pandemic threats, drawing from article 19 of the WHO Constitution to develop a binding international convention and providing a legal foundation for proposals to develop a new treaty through the World Health Assembly. A Framework Convention strategy could enable states to agree on core principles, which could then be operationalized through subsequent protocols.
As states prepare for World Health Assembly debates in November, they will consider “the benefits of developing a WHO convention, agreement, or other international instrument on pandemic preparedness and response with a view towards the establishment of an intergovernmental process to draft and negotiate such convention, agreement, or other international instrument on pandemic preparedness and response.” The O’Neill Institute for National and Global Health Law at Georgetown University (a WHO Collaborating Center) is partnering with the Foundation of the National Institutes of Health to support WHO’s Director-General and member states in the pandemic treaty process. We will be hosting a series of expert consultations among key stakeholders in North America, Europe, Africa, and Latin America.
In identifying the specific strategies for preventing, detecting, and responding to future pandemics, this prospective global health convention provides a unique opportunity to articulate key state obligations, with strong compliance and accountability mechanisms for:
One Health. Prioritizing prevention through land management, deforestation, and the effective regulation of wild animal markets and intense human-animal interchange — under a comprehensive “one health” approach across sectors — the new treaty could reduce the likelihood of naturally-occurring zoonotic spillovers and other novel threats to health security.
Good Governance. It is crucial that the new treaty stresses an evidence-based and rights-based public health response while proscribing and sanctioning iniquitous government actions, including “authoritarian power grabs,” continuing monopolies in medical innovations, failure to resource health systems, heightened levels of pandemic-related human rights violations, and an institutional neglect of low-income and marginalized communities.
International Monitoring. In promoting outbreak prevention, detection, and response, strengthened global institutions must overcome obstacles of national sovereignty to monitor disease threats. International institutions like WHO must have authority to verify state reports, publish crucial outbreak data without state confirmation, investigate novel pathogens independently, and institute remedial actions.
Given the massive gaps in the COVID-19 response and the cavernous gaps in access to vaccines and other resources between richer and poorer countries, bold new legal obligations and governance appear not simply justified but a global imperative. It may appear that negotiating norms and compliance measures as varied as One Health through to international monitoring will be arduous — and it will be. Yet, the health crisis the world has faced is unprecedented and so too must be the solutions. If the world cannot come together for bold reforms now, it may never be able to effectively prevent and respond to future pandemic threats. The time is now.
The pandemic treaty can achieve these goals by providing WHO with the legal mandate, sufficient funding, and political legitimacy to become the governing institution necessary to meet this historic moment. COVID-19 is an unprecedented crisis that offers a unique opportunity to reform WHO to effectively coordinate pandemic preparedness and response across member states, partner with other international organizations, and ensure international assistance and cooperation – establishing governing authorities to overcome the limitations of the COVID-19 response and advance global health security and equity.
WHO Director-General Tedros has boldly stated that “the world cannot afford to wait until the pandemic is over to start planning for the next one.” An innovative pandemic treaty could become a transformative model of global solidarity in the face of common threats, but it will require states to overcome nationalist forces to meet this global moment, with leaders embracing diplomacy across nations to prepare legal authorities for new challenges.
Lawrence O. Gostin is O’Neill Professor of Global Health Law and Director of the O’Neill Institute for National and Global Health Law at Georgetown University. He directs the WHO Collaborating Center on National and Global Health Law.