The Pandemic Treaty Dilemma
In Need for a Treaty or for an IHR Amendment?
On April 12th and 13th 2022, the Intergovernmental Negotiation Body (INB) held public hearings at the seat of the World Health Organisation (WHO) on the elaboration of a future instrument related to the management and prevention of future pandemics. During the handling of the COVID-19 pandemic, the effectiveness of the International Health Regulations (IHR), i.e. the international instruments currently in force for the protection of public health, was severely questioned. Given some States’ reluctance to comply with the IHR measures and the pressure on WHO to adopt decisions promptly during the outbreak, the new international instrument to be adopted faces considerable issues. Against this background, the present post addresses the following questions: What are the implications of initiating negotiations to adopt a new instrument? Are the existing IHR sufficient to enforce the duties conferred upon the Parties? Or is it preferable to amend the current IHR?
The Role of the INB in Drafting a Pandemic Treaty
As set forth in the Decision SSA2(5) (2021), the INB seeks “to draft and negotiate a WHO convention, agreement or other international instrument on pandemic prevention, preparedness and response, with a view to adoption under Article 19, or under other provisions of the WHO Constitution as may be deemed appropriate by the INB”. Yet, the same decision sets three consequent goals:
(1) to address the substantive elements and submit a working draft before 1 August 2022 before identifying the instrument to use;
(2) to consider evidence-based deliberation and the “discussions and outcomes” of the Member States Working Group on Strengthening WHO Preparedness and Response to Health Emergencies (MSWG); and
(3) to submit its work’s outcome to the 77th World Health Assembly (WHA) session.
In other words, the INB’s raison d’être relies on the States’ compliance with the conditions set forth for elaborating the new instrument. A different situation when compared to the current IHR’s origins: the WHO proposed a draft modified version in 2004 that was later submitted for intergovernmental negotiations before its adoption in 2005 and entry into force in 2007 (here). Although the WHO has not been called upon to submit a proposal, the INB is legally bound to comply with the WHA Decision’s terms [Articles 2(k), 17, 18(e) of the WHO Constitution; Rule 41 of the WHA Rules of Procedure]. Accordingly, the INB must produce a technical framework within a specific time-limit (almost two years) pursuing an effective approach to that of the IHR.
Complementary Amendments to the IHR
The recent MSWG outcome (issued on January 2022), supports “improving compliance through potential targeted amendments” of the IHR under five main priorities: (a) transparency, (b) mutual accountability and technical capacity, (c) incentivization of timely sharing of information, (d) strengthen State’s’ core capacities and (e) elaboration of clear guidance related to a public health emergency of international concern (PHEIC). However, no proposal would significantly increase WHO’s power to adopt necessary actions to compel States to observe and respect the IHR – given that, as of now, no sanctions or enforcement procedures are provided. As the MSWG outcome points out directly to possible amendments to the IHR, its nature and functions should be discussed in greater details.
What Is the Legal Nature of the IHR?
The IHR constitutes a paradigmatic tool under international law. On one hand, all WHO’s Members are bound to observe and respect the IHR except in case of reservations filed to its content (Article 22 WHO Constitution). On the other hand, the IHR does not require any national ratification or acceptance to enter into force (Ibid). Although not a convention stricto sensu, the IHR derive their legally binding nature vis-à-vis the Members from the functions and powers attributed to this Organization in its Constitution (here; see also Legality of the Use by a State of Nuclear Weapons in an Armed Conflict, ICJ Advisory Opinion, para. 19).
Indeed, as States have entrusted the WHO to propose regulations with respect to international health matters [Article 2(k) WHO Constitution], and the Organization exercises that function through the WHA, one of its organs [Articles 9(a) and 21(a) WHO Constitution], the IHR are legally binding (see Jurisdiction of the European Commission of the Danube, PCIJ Advisory Opinion, p. 64). Otherwise, the WHO functions would become void if the WHO could not enforce them due to the lack of acknowledgement of the legally binding obligations arising from the IHR it elaborates (see Reparation for Injuries Suffered in the Service of the United Nations, ICJ Advisory Opinion, p. 10).
The (Un)balanced Relationship between Bindingness and Enforceability
Under the current IHR, there are three main obligations imposed on all Parties:
Firstly, States are bound to “develop, strengthen and maintain the capacity to detect, assess, notify and report” events under Annex 1 IHR [Article 5(1) IHR], while the WHO must assist upon request the States to achieve that capacity [Article 5(3) IHR].
Secondly, whereas States are compelled to assess any event likely to constitute a PHEIC under Annex 2 and notify the WHO within 24 hours [Article 6(1) IHR], the WHO is likewise empowered to request the verification of sources other than the public authorities of the State about the event likely to constitute a PHEIC [Article 10(1) IHR].
Thirdly, a two-fold duty arises. On the one hand, States must possess the means and capacity to respond to public health risks (PHR) and PHEICs [Article 13(1) IHR]. On the other hand, the WHO must publish technical guidance on how to achieve that capacity and collaborate, upon request, with the States affected [Article 13(3) IHR].
Even though obligations arise for States and the WHO from the IHR given their legally binding nature, no specific provision determines the means to enforce them or the consequences of non-compliance (Fidler, p. 390). Is it then possible to enforce the IHR regarding a pandemic?
Although in case of PHEIC designation the IHR provides the mechanisms to execute the framework through PHR (Jee, p. 2), there are no provisions on how to compel Members to comply with the aforesaid measures (Gostin & Katz, p. 280). Although the ability to ensure the effective implementation and compliance therewith is severely affectedit thus comes as no surprise that the MSWG outcome uses the word “incentivises” as means of fostering compliance with the IHR –including public shaming– rather adopting enforcement mechanisms or sanctions.
To Modify or to Replace? Procedural and Substantive Implications
Given the proposed amendments submitted during the 75th WHA session (22-28 May 2022) by the United States and by several other Members), this section examines whether the amendments may satisfy the INB’s goal in lieu of a new convention.
The IHR amendment process provides for a simplified, appropriate option for both the WHO and its Members to achieve the INB’s purpose. Following Article 55 IHR, any amendments aimed at reinforcing the ability of the IHR to prevent, develop preparedness and response against pandemics would not require any special formality for the modified text to produce legally binding obligations. Although the process may be beneficial for the development of an adequate framework before a next pandemic arises, only Members and the DG can propose amendments to the WHA, according to Article 55(1) IHR, which impairs the ability of other stakeholders to submit any proposal.
Nonetheless, amendments constitute an efficient tool for the improvement of an international instrument. Once submitted, Members have a four-months period to consider them before the next WHA session according to Article 55(2) IHR. Moreover, the guarantee of effectiveness rests upon Article 55(3) IHR inasmuch the amended version of the IHR would enter into force after all Members have been given notice of the WHA decision (Article 22 of the Constitution) without the need for national ratification. Furthermore, under international law, the lack of express provisions restricting or limiting the scope of any amendment would, result in the possibility of introducing new provisions in the IHR that do not contradict the WHO Constitution’s framework (Libyan Arab Jamahiriya v. Chad, ICJ Judgement, para. 41).
Conversely, the adoption of a new convention presents some challenges regarding prompt and effective responses to pandemics. Indeed, the legally binding force of any convention or agreement relies on the national ratification by each State (Article 19 WHO Constitution). In other words, even if the ⅔ majority required for the WHA to adopt the text of a convention or agreement is met, that does not ensure that the text will enter into force in all States. Consequently, no binding obligations related to the responses to pandemics would arise. In that sense, even if Article 20 of the WHO Constitution, which contains the duty of States to act when an instrument is adopted, is invoked, the State would only be obliged to notify the reasons to the WHO for not ratifying the instrument after an 18 months-lapse.
Moreover, the timeframe provided for a convention or agreement is longer than that of an amendment to the text of the IHR that could be made specifically for the prevention of the international spread of a disease, as occurs with a pandemic. With regard to the convention, the inclusion of the ratification or acceptance process may lead to further drawbacks and obstacles with regard to its complete implementation and observance given the reliance on political feasibility to guarantee its acceptance (Gostin, Sridhar and Hougendobler, p. 856).
Having considered the two previous alternatives, amending the IHR would prove more adequate to the objective of reinforcing the international public health framework regarding pandemics, and of likewise having recourse to a more efficient procedure in which it is less likely that time or domestic issues will alter the adoption of the modified version of the IHR.