By Oyetola Muyiwa Atoyebi, SAN, FCIArb. (UK).
INTRODUCTION
During the second special session 2021, the World Health Assembly formed an Intergovernmental Negotiating Body (INB) open to all Member States to draft and negotiate a WHO convention, agreement, or other International instruments, pandemic prevention, preparedness and response, with the aim of adopting it under Article 19 of the Constitution, or other provisions of the WHO Constitution as deemed appropriate by the INB. Consequently, the INB agreed that the instrument should be legally binding on member States. At its second meeting, the INB requested the Bureau to develop a conceptual zero draft of the instrument for discussion at the third meeting of the INB. Accordingly, the Bureau has prepared a conceptual zero draft for consideration by the INB at its third meeting.
This article provides a comprehensive overview of the Conceptual Zero Draft and suggests the global health implications of the proposed Pandemic Treaty when adopted in 2024.
OVERVIEW OF THE CONCEPTUAL ZERO DRAFT
In a consensus decision aimed at protecting the world from future infectious diseases crises, the World Health Assembly agreed to kick start a global process to draft and negotiate a convention, agreement or other international instruments under the Constitution of the World Health Organization to strengthen pandemic prevention, preparedness and response.[i] The Bureau set up by the Intergovernmental Negotiating Body developed the Zero Conceptual Draft containing the following provisions.
The Conceptual Zero Draft begins with stating the preamble which will be discussed by Member States during the negotiation process. The preamble contains the relevant rules which regulate the relationship between member states and the essence of the enactment of the pandemic treaty. Chapter one of the Conceptual Zero Draft summarized the relationship between national agreement and instruments. It states that Parties recognize that the pandemic treaty and other relevant international instruments should be interpreted so as to be complementary and synergistic, and that the provisions of the treaty shall in no way affect the right of Parties to enter into bilateral or multilateral instruments, including regional or sub-regional instruments, on issues relevant or additional to the treaty, provided that such instruments are compatible with, and do not conflict with, their obligations under the proposed treaty. This echoes the principle of State Sovereignty.[ii]
Chapter two of the Conceptual Zero Draft is on Objectives, Principles and Scope. It states that the objective of the pandemic treaty is to save lives and protect livelihoods, through strengthening proactively, the world’s capacities for preventing, preparing for, responding to, and recovery of health systems from pandemics. It also states the various principles guiding the proposed Pandemic Treaty such as respect for Human Rights, the right to health, Sovereignty, Equity, Solidarity, Transparency, Accountability, Inclusiveness, Community Engagement, Gender Equality, Central role of WHO, rights of individuals and groups at higher risk and in vulnerable situations, One Health etc.
Chapter three is on achieving equity. Medical equity is very important during the occurrence of a pandemic. The chapter on equity addresses the measures to ensure equal distribution of pandemic response products. Starting with measures for building a reliable global supply chain for pandemic response products, including strategic stockpiles, allocating raw materials based on public health needs, and using international consolidation hubs. Article 6 lays the foundations for the development and equitable distribution of lifesaving tools in a health emergency. In so doing it responds to a central failing during the COVID-19 pandemic. The chapter rightly focuses on capacity-building, calling on parties to strengthen global and regional manufacturing capacities for pandemic response products. (Art. 7). Article 8 focuses on capacity building for Research and Development (R&D) through resource sharing, incentives in private sector contracts and for joint venture initiatives, information sharing, and greater transparency over research and development funding.
Additionally, Chapter four addresses strengthening capacities for pandemic prevention, preparedness, response and recovery of health systems. Article 10 outlines measures to strengthen public health capacities and functions that include; One Health surveillance systems equitable and affordable access and, linking to universal health coverage, both the continued functioning of health services during emergencies and their recovery afterwards. It incorporates the need to strengthen laboratory and diagnostic capacities and networks at all levels and to build digital health capacities and calls for financial and technical support, and cooperation to strengthen health systems. Recognizing the significance of a skilled workforce, Article 11 calls for a range of measures to ensure their training and retention, including through better opportunities and working environments, particularly for women, whom the instrument recognizes still experience significant inequalities. It also calls for human and financial resource mobilization and a global emergency workforce deployable to countries affected by health emergencies.
Chapter five is on Coordination, Collaboration and Cooperation. Article 13 emphasizes the role of political commitment and coordination to further the proposed treaty’s goal, support for evidence-based policies, support for WHO as the directing authority on health including its rapid access to outbreak areas, and obligations to develop inclusive policies that recognize the needs of vulnerable persons and promote equitable participation. Solidarity is the stated aim, particularly regarding countries reporting public health emergencies in order to incentivize timely reporting of public health events – responding to concerns that countries may withhold information to avoid being hit with travel restrictions. Article 14 calls for parties to adopt whole-of-government and – approaches to pandemics. Article 15 and 16 stipulates efforts to improve scientific and public health literacy, with measures to combat misinformation, strengthen public trust, and promote public health awareness
Furthermore, Chapter six expounds on financing. The instrument urges member states to prioritize local financing for pandemic-related national actions, financing of international mechanisms for pandemic-related capacity-building, and financing for equitable access to global health goods. Financing to support the instrument’s implementation is the primary responsibility of governments, but the instrument requires parties to financially support national activities directed towards its objects. It also requires them to promote the use of bilateral and multilateral channels for pandemic program financing, and for those represented in intergovernmental organizations to encourage them to provide specific financial assistance for developing country parties.
Chapter seven delves into the issue of Institutional arrangement. The Conference of the Parties (COP), established under Article 19, is to be the instrument’s “supreme policy-setting organ,” responsible for reviewing and promoting the implementation of the instrument and any related instruments that the COP may adopt. Beyond this body is an “Enlarged-COP” — a “polylateral diplomacy venue” for broader stakeholder inputs on COP decision-making, composed of party delegates, representatives of organizations of the UN system (e.g., WHO), and other bodies supported by a two-thirds majority of the COP, including NGOs, international organizations, and private sector organizations. Together these bodies, forming the Governing Body, can determine procedures to promote compliance and address non-compliance, such as “accountability measures” by means including “periodic reports, reviews, remedies and actions”.
The last chapter addresses issues in international laws such as ratification, withdrawal, right to vote, adoptions, entry into force, signatures, reservation, acceptance, approval and formal confirmation, amendment, provisional application, and settlement of disputes as they relate to the proposed Pandemic Treaty.
- GLOBAL HEALTH IMPLICATIONS OF THE PANDEMIC TREATY
The following are the implications of the Pandemic Treaty.
3.1 Rapt Attention to Pandemic Risk
The observation of risks and, especially technical knowledge-sharing on innovative infectious diseases spreading from animals to humans is worthy of note in the prevention of pandemics. The proposed Pandemic Treaty aims at achieving this objective through synergy between Research Centers globally and better coordination of international funding for core capacities
- Quick Response Practice
Inequality in access to vaccines, medicines and diagnostics threatens to extend the pandemic and take a more serious toll on society. The proposed Pandemic Treaty would draw the lesson based on the experience of the Access to COVID-19 Tools Accelerator (ACT-A), COVAX and other collective instruments developed since the COVID-19 pandemic started, in order to address global needs more equitably in future Pandemics.
3.3 Ensuring Trust of the International Health System
The proposed Pandemic Treaty, if enacted, would ensure that there is more trust, accountability and mutual responsibility in the international health system. Unreliable information and misinformation weaken the trust of the masses. To redeem citizen trust, proactive measures should be contemplated to improve the flow of reliable and accurate information as well as to tackle misinformation globally and fake news.
- Research and Innovation
The COVID-19 pandemic demonstrated showed the role of the scientific community to quickly collaborate in order to be able to rapidly scale up their manufacturing capacity. A coordinated approach to discovering and developing effective and safe medical solutions, such as vaccines, medicines and protective equipment would benefit collective health security. The sharing of pathogens, biological samples and genomic data as well as the development of timely medical solutions (vaccines, treatments and diagnostics) are vital in order to enhance global pandemic preparedness.
CONCLUSION
The shocking global impact of the COVID-19 pandemic has made it imperative for the world to take proactive steps to prepare, prevent, and respond to future pandemics. One of such steps is the ongoing negotiation by the Intergovernmental Negotiating Body for the enactment of the pandemic treaty.
SNIPPET
In a consensus decision aimed at protecting the world from future infectious diseases crises, the World Health Assembly agreed to kick start a global process to draft and negotiate a convention, agreement or other international instruments under the Constitution of the World Health Organization to strengthen pandemic prevention, preparedness and response…
Key terms: The Pandemic Treaty, The World Health Organization and Law, The World Health Assembly
AUTHOR
Mr Oyetola Muyiwa Atoyebi, SAN is the Managing Partner of O. M. Atoyebi, S.A.N & Partners (OMAPLEX Law Firm).
Mr. Atoyebi has expertise in and vast knowledge of Arbitration Practice and this has seen him advise and represent his vast clientele in a myriad of high-level transactions. He holds the honour of being the youngest lawyer in Nigeria’s history to be conferred with the rank of Senior Advocate of Nigeria.
He can be reached at atoyebi@omaplex.com.ng
CONTRIBUTOR: Victor Atang
Victor is a member of the Dispute Resolution Team at OMAPLEX Law Firm. He also holds commendable legal expertise in Litigation Law Practice
He can be reached at victor.atang@omaplex.com.ng
[i] Available at https://www.who.int/news/item/01-12-2021-world-health-assembly-agrees-to-launch-process-to-develop-historic-global-accord-on-pandemic-prevention-preparedness-and-response date accessed 19/02/203
[ii] Conceptual zero draft for the consideration of The Intergovernmental Negotiating Body At its third meeting- Bureau for INB- A/INB)3/3
Such Good Read