Inching closer to an essential global pandemic treaty

World Health Organization Director-General Tedros Adhanom Ghebreyesus recently declared monkeypox a public health emergency of international concern (PHEIC). The world is now simultaneously fighting three global health emergencies that are currently designated as PHEIC’s — Covid-19, monkeypox, and polio — a poignant reminder of the catastrophic threat posed by pathogens.

Just two days earlier, the WHO took a historic first step toward a pandemic treaty to prevent and respond to infectious disease threats. WHO’s Intergovernmental Negotiating Body — a dedicated group of the world’s governments — agreed to negotiate and draft a legally binding pandemic treaty. This is the most transformative global health call to action since WHO itself was formed as the first specialized United Nations agency in 1948.

After a decade of recurring global health threats — H1N1, MERS, Ebola, Zika, Covid-19, and now monkeypox — the world is finally beginning to understand the magnitude of global health threats and the inadequacy of the current governing pandemic instrument: the International Health Regulations, an instrument of international law that is legally binding on 196 countries. WHO member states have an opportunity to transform a once-in-a-lifetime pandemic crisis into fundamental reform, making genuine commitments to one another, to their citizens, and to the global community.

But as Viroj Tangcharoensathien, the vice chair of the Intergovernmental Negotiating Body, warned, “This is a honeymoon period” and “the honeymoon period will finish very quickly.”

While there is currently global consensus that pandemic coordination must be improved in many ways, from countries being able to detect and report disease outbreaks to sharing data and vaccines, there is no alignment on what binding norms governments would be willing to agree to. Will nations give up some measure of individual flexibility and national sovereignty in favor of global collective action? We believe they should.

If broadly adopted, a new pandemic treaty would vastly enhance global coordination and health security. Covid-19 ravaged the planet partly because many governments refused to share information with each other and with the World Health Organization, failed to capably deploy countermeasures to track the progression of SARS-CoV-2, the virus that causes Covid-19, and tried to elbow to the front of the line for vaccine supply often undermining global sharing mechanisms like COVAX.

These weaknesses can be addressed equitably and justly, but only if countries concur on what should be done and faithfully follow through. In November 2021, Francis S. Collins, then director of the National Institutes of Health, said that “Covid-19 has cast a searing and deeply troubling light on global inequities and the urgent need to strengthen global capacity for biomedical innovation, not only for infectious diseases but for a great many other health concerns. What then should we be planning for the future?”

We offer three answers to that question.

First, planning and negotiations for a pandemic treaty must include not just governments but also key stakeholders including civil society organizations and affected communities. One reason that international law has been perennially weak is that it is perceived to be formed by snobbish elites in metropolitan centers like New York City and Geneva. So far, the Intergovernmental Negotiating Body has proceeded in a reasonably inclusive way, inviting contributions from civil society organizations, professional societies, and even critics. But more meaningful and inclusive participation is needed.

Second, any treaty must be formed with credible commitments and accountability mechanisms. That includes equitable sharing of pathogens, genomic sequencing data, and scientific information, as well as sharing the benefits of public health research. Vaccine exporting countries, for example, often announce their intention to share medical countermeasures, including vaccines, but the Covid-19 pandemic has shown they are often reticent to do so in a crisis. (That same dynamic occurred during the H1N1 pandemic).

But that could change in the interpandemic period by backing up rhetoric with enforceable legal commitments that protect the procurement deals that vaccine importing countries have made. A treaty could also enhance the capacity of more countries — especially in low- and middle-income countries — to produce diagnostics, therapies, and vaccines, built by a global commitment of funds, expertise, and technology transfer. A treaty could also create and sustain early warning systems for disease outbreaks that report information to neighboring countries and the WHO in real time.

Third, governments could make even deeper commitments to prevent novel outbreaks, which is always better than having to respond to them. It’s possible to find agreement on animal and land management, live animal wet markets, and even deforestation that could prevent zoonotic spillovers from animal to human populations. Regulating the use of antibiotics and antivirals in livestock and in humans could reduce the rapid adaptation of microbes to key medicines. Investment in strong and resilient health systems in low- and middle-income countries and nations that are most economically and socially vulnerable would help aid recovery from pandemics in more resilient ways.

The end of the honeymoon period acknowledges that barriers to entry are high. Only two binding treaties formed under the WHO’s constitution have been concluded in the organization’s nearly 80-year history. The Framework Convention on Tobacco Control — along with the International Health Regulations — was adopted because the world’s governments knew they were confronting a closely coordinated industry movement to promote global tobacco consumption and that only a similarly coordinated and evidence-based public health approach had a chance of success.

In the case of infectious diseases, humanity is facing not a closely coordinated movement but pathogens that cannot be negotiated with and cannot be contained inside national borders.

It is possible that the new treaty could take on a framework model along the lines of the Convention on Biological Diversity or the Vienna Convention for the Protection of the Ozone Layer. Those accords were “stage-setters” that created forums to build trust and timely negotiate specific obligations.

Recently, two organizations we are affiliated with — the O’Neill Institute for National and Global Health Law at Georgetown University (a WHO Collaborating Center on Global Health Law) and the Foundation for the National Institutes of Health — convened an expert consortium to advise the WHO, its Intergovernmental Negotiating Body, and the public on the implications of legally binding commitments such as monitoring compliance and providing financial support. Several collaborators at the consortium noted that the power of the diversity and ozone conventions was to lay the groundwork for the more substantive Montreal Protocol on Substances that Deplete the Ozone Layer and Nagoya Protocol on access to and sharing of genetic resources that came later.

Notably, the Intergovernmental Negotiating Body highlighted that, in pursuing a binding pandemic treaty, it would be “without prejudice to also considering, as work progresses, the suitability” of alternatives along the lines of the International Health Regulations or softer mechanisms. A number of countries that will be essential to any future success, including the United States, appear to prefer this approach and could lower the barriers to entry.

There has been considerable and sustained momentum toward a new pandemic agreement; it has passed several critical gates since WHO Director-General Tedros and 25 heads of government first pushed for one in March 2021. That, in and of itself, is a remarkable accomplishment. And yet, Tangcharoensathien is right: the honeymoon period is over. Nothing has been agreed upon and nothing in these procedural victories has benefited marginalized global citizens. The real work must now begin.

Lawrence O. Gostin is faculty director of the O’Neill Institute for National and Global Health Law, a professor at Georgetown University Law Center, and director of the World Health Organization Collaborating Center on Public Health Law and Human Rights. Kevin A. Klock is senior vice president of operations and legal affairs at the Foundation for the National Institutes of Health (FNIH) and a scholar and adjunct professor of law at the O’Neill Institute. Sam F. Halabi is senior associate vice-president for health policy and ethics and professor of public health at Colorado State University School of Public Health. The authors lead the O’Neill Institute and the joint O’Neill/FNIH project on an international instrument for pandemic prevention and preparedness, for which FNIH has provided funding. The World Health Organization is an intellectual non-financial partner to the FNIH-managed GeneConvene Global Collaborative. The views expressed here do not necessarily reflect those of the O’Neill Institute or the FNIH.