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  • Tarazi Mohammed Sheikh

Navigating the Pandemic Landscape: The Significance of a Modern Pandemic Treaty - Part I

Updated: Jul 3, 2023

This article is authored by Tarazi Mohammed Sheikh, a Penultimate-year Law Student at BRAC University.


Background

The COVID-19 pandemic has been one of the significant challenges to the global community for the past 3 years and further. It is considered the biggest and most destructive period since the 1940s. Moreover, it is also considered a one-of-a-kind threat which makes it different and more challenging to deal with. The reason behind its uniqueness lies in its origin; a scientific cause, a virus. The novel coronavirus medically termed SARS-CoV2, first emerged publicly in late 2019 in Wuhan city of the People’s Republic of China. Being a fast-growing virus and a highly contagious one, it took less than 3 months to become a public health concern that seemingly infects patients with a severe form of acute respiratory syndrome. As such, public panic occurred correspondingly as the scientists and medical experts failed to provide any immediate medical solutions, making the virus seemingly a terminal disease for many. The World Health Organisation (“the WHO”), a specialised agency of the United Nations for international public health, then declared the condition a Public Health Emergency of International Concern on the 30th of January 2020. However, with the increasing rate of death and the urgency of immediate cooperation from the States, the WHO announced the outbreak as a “Pandemic” on the 11th of March, 2020. Ever since, different protocols and measures have been taken by different States to minimise the destruction of the pandemic at different levels.


As of January 2023, more than 663 million cases have been confirmed cumulatively in the global aspect by the WHO, with a cumulative death count of more than 6 million patients. The WHO, besides being assiduous in keeping a record of the numbers, does express concern for the uncounted and unrecorded number of confirmed cases and deaths worldwide. Hence, at the global level, COVID-19 has raised a common threat and concern for the States against such an envisaged global outbreak in the future. In the vein of the harm caused and estimated to be caused by the end of the pandemic, a panel negotiation for an international instrument on pandemic preparedness was held at the 75th session of the World Health Assembly (“the Assembly”) of the WHO in May of 2022 at Geneva, Switzerland. The provisional agenda of the Assembly included deliberation between the world leaders and experts in public health on an urge that States negotiate on adopting a new international instrument on pandemic preparedness and recovery. With the patronage of the Director-General of the WHO, Dr Tedros Adhanom Ghebreyesus, the Assembly consented to initiate a historic global process of drafting and negotiating an international instrument like conservation or an agreement to protect the world from such crises similar to the COVID-19 pandemic in the future. The instrument, according to the Assembly, would be drafted following the provisions of the Constitution of the WHO and would aim to remain vital in its mission of strengthening pandemic prevention, preparedness and response worldwide as well as strengthening the global health structure to protect and promote the right to health of people. As of January 2023, the instrument is in the process of drafting by an intergovernmental negotiating body and is due to be delivered by a progress report at the 76th World Health Assembly later in 2023 with a tentative date of adoption by 2024.


Relevance and significance of adopting an international instrument on pandemic

An unforeseen and rapid pandemic like COVID-19 is, undoubtedly, a global challenge, and not any single State or group of States can be held responsible. Similarly, not one single State or group of States can address the threat single-handedly in the future. Thus, the principal aim of an international instrument on pandemic prevention, preparedness, and response is to build solidarity in the essence of the doctrines of fairness, inclusivity, and lucidity. Moreover, an international legal instrument like a Convention or Agreement is legally binding on the States Parties which ratify it under international law. Hence, the instrument to be adopted in line with the provisions of the Constitution of WHO shall have a binding characteristic on the States which would ratify it upon adoption. It is universally agreed that a pandemic like COVID-19 can be prevented if the entire cycle of precaution, detection, and response can be reformed and the loopholes addressed. Not only this, COVID-19 exposed some of the crucial images of many States of their unpreparedness and incompetence to address such a devastating crisis. It further indicated negligence and a corrupt approach to many States’ healthcare systems at the domestic level. Hence, the prospective instrument for pandemic preparedness is not only a legal and medical discourse, but also a political one.


Further, what intrigues the adoption of a Pandemic Treaty at this stage is that there have been several independent review committees and panels in different sectors of the United Nations and other institutions functioning for global causes which at different times indicated the necessity for a more effective international legal regime to prevent, prepare for and respond to pandemics and endemics, especially, considering the functions and scopes of the single existing instrument, the International Health Regulations ( “IHR”). Here, it is pertinent to mention that the IHR are a key international instrument focussing on international health-related measures and safety. The Regulations were primarily established for the purpose of preventing, protecting against and controlling to provide public health response to an expanded way of spreading infectious disease in such a way that is in accordance with and restricted to risks of the public health and to avoid irrelevant interferences and interventions with the international traffic and trade. Another significant aspect of the IHR is Article 57, which provides the authority to the State Parties to conclude any international accord or special treaty for the purpose of implementing the Regulations in a cost-effective manner.


There are, however, some other Conventions, Agreements and Rules available under the mandates of the WHO such as the WHO Framework Convention on Tobacco Control (“FCTC”) covers the major (albeit the only existing instrument of its category) global health concerns under the WHO. Not only these, the Treaty also seeks to address social and economic responses in times of pandemics.

(a) Three stages of addressing a pandemic; Prevention, Preparedness & Response

The instrument comes with manifold purposes. For instance, it aims to prepare the world for a future pandemic, both on a global and regional level as well as increase global capacities and resilience. Further, it aims to bring the States together politically and build a higher, sustained and long-lasting political commitment among them. The instrument also aims to define the terms relating to a pandemic, i.e., the legal definition of pandemic, endemic, resilience, disaster management, lockdown, shutdown, terms of safety protocols relating to infectious disease, etc. Hence, it will provide an enhanced and comprehensive understanding of the circumstance and concerns relating thereto. Another core aim of the instrument would be to enhance support for the people in terms of both the public and private sectors. Finally, the instrument shall allocate a greater scope for fostering the integration of policy areas pertaining to health matters at both domestic and international levels. Besides framing the do’s and don’ts of a State during the pandemic, the instrument also aims to support and focus on preventive measures by increasing resilience before a pandemic may occur. A further means to ensure an appropriate response to any future incident is to ensure universal and equitable access to medical equipment, such as medicines, vaccines, protection measures, surgical tools, etc. The instrument, in addition, aims to create a stronger international framework to be followed by all State Parties which would pertain to the global health measures and standards set by the WHO. Finally, the instrument targets not only aid human beings, but also animals and the planet as a whole. In most States, the national healthcare system suffered extreme pressure during the pandemic despite high or low economic conditions. Such an unprecedented and wide health emergency resulted in causing a shock to the regular healthcare supplies, services and the workforce required on the front line to combat the dangers. In this regard, the Independent Oversight and Advisory Committee for the WHO Health Emergencies Programme Report provides, “ensuring delivery of an essential package of health services with sustainable funding is a key priority.” Hence, the frameworks of each state for disaster risk management and resilience would play a significant role. And in that regard, the key function is in the hands of the administrative and legislative branches of the States to implement the existing legislations and enactments enforceable within the domestic sphere. Such a framework from each State must be mandated to ensure the availability of access to vaccines, diagnostics, medicines and other health and protection equipment essential for combatting an unprecedented and infectious disease with a rapid rate of contagiousness. Therefore, the critical challenges faced by the health regulatory systems at domestic levels would be further developed after the adoption of the international accord which would allow the components of the WHO health systems framework and health services, hospital capacity building, health workforce, issues relating to capacity and protection, governance and financing and other relevant sectors to grow and work in line with the preparedness and prevention against deadly pandemics. Finally, by implementing the aforementioned goals, the international instrument of pandemic prevention, preparedness, and response will ensure cooperation among the States and build better surveillance, alert, and response to future pandemics.


Note: The relevance and significance of adopting an international instrument on pandemic in terms of the protection it offers to human rights, and the limitations of such an instrument as well as its future implications will be discussed in Part II of the blog.

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