Why the rush? A call for critical reflection on the legal and human rights implications of a potential new international treaty on pandemics

Background: the push for an international treaty on pandemics

At the close of the 74^th World Health Assembly (WHA) on the 1^st of June 2021, the World Health Organisation’s (WHO) Director-General remarked:

‘One day – hopefully soon – the pandemic will be behind us, but we will still face the same vulnerabilities that allowed a small outbreak to become a global pandemic … That’s why the one recommendation that I believe will do most to strengthen both WHO and global health security is the recommendation for a treaty on pandemic preparedness and response.’

In fact, world leaders had announced already in March 2021 that only a new treaty is capable of preparing the world for the next pandemic.

Concretely, the WHA decided to hold a special session already at the end of 2021 for:

‘considering 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 a treaty. This effort is backed by three WHO-supported reports that selectively analyse some of the international and domestic responses to the emergence of the SARS-CoV-2 virus, namely the Review Committee Report of the International Health Regulations (RCR-IHR), a report produced by an Independent Panel of Pandemic Preparedness and Response (IPPPR) and a report of the Working Group on Strengthening WHO Preparedness and Response to Health Emergencies (Working Group report).

The latter report reveals that the call for a rapid negotiation and adoption of a binding international treaty on pandemics originated from the President of the European Council, Charles Michel, and explains the primary motivation behind it. It observes that:

‘[n]ow is the time for the world to renew its political commitment to the spirit of the [International Health] Regulations (IHR), and enshrine it in an international treaty … This could ensure that the lasting legacy of COVID-19 is an interconnected global system to prepare for, predict, prevent, respond to and recover from health emergencies’ (para.12, our emphasis).

The European Union (EU) has already invested heavily in the lobbying for this project to negotiate an internationally binding agreement to which it would eventually accede, including through setting up a dedicated website featuring among other things a video about the necessity to protect the entire world population from health threats through such a one centralised global surveillance system.          

The RCR-IHR further specifies (p.16) that a global convention on pandemics should support the implementation of the IHR. The IPPPR report, in addition, recommended (p.47) in mid-May 2021 to adopt the new treaty within the next 6 months as a complementary instrument to the IHR, using the powers under Article 19 of the WHO Constitution (WHOC).

All three reports and the EU’s website contain remarkably little analyses of the far-reaching and multi-faceted detrimental effects that the WHO’s and different states’ responses to the emergence of the SARS-CoV-2 virus has had and continues to have on people’s health and lives around the world. They also do not engage in detail with the many legal questions that these responses raise, among them questions about the potential violations of the IHR as well as of numerous human rights, including in particular the human right to highest attainable standard of health (right to health) as referenced in the preamble of the 1948 WHOC. Nor do the reports examine in detail why the current international treaty on pandemics is insufficient to address outbreaks of infectious diseases in the future. Though the above quote from the Working Group report and WHO and state officials’ statements might suggest otherwise, the IHR is a multilateral, legally binding treaty deposited at the UN that has been ratified by all member states of the WHO (plus by the Vatican and Liechtenstein), that is to be interpreted and applied in light of the WHOC and international human rights law (IHRL) (Article 3(1) IHR).       

Against this background, this blogpost will give an initial critical overview of some of the legal questions raised by the three reports that should be thoroughly discussed in order to anchor the debate about and development of a potential treaty on pandemics firmly in existing international health and human rights law, and resist the move to further entrench a one-dimensional, securitised response to and management of infectious disease outbreaks that has been prominent in WHO/EU/state response to Covid-19. The remainder of this blogpost engages with substantive legal questions and IHR implementation mechanisms; and then highlights and corrects major procedural misunderstandings of the WHA’s treaty-making competences and ends with a brief conclusion.  

Substantive issues raised in the three reports

All three reports emphasise the role of decisive and centralised global action to strengthen robust responses to infectious disease outbreaks that might develop into a global pandemic. Whilst coordinated activity is sometimes needed in relation to outbreaks caused by pathogens that have a very high infection fatality rate (IFR) (e.g. Ebola with an IFR of 50.0%), if included into a new treaty in an unreflected manner, this top-down, technocratic approach can further sideline human rights-based nuanced responses in violation of WHO’s and states’ duties under the IHR and IHRL.

An example is the recommendation to base both future declarations of a public health emergency of international concern (PHEIC) by the WHO Director-General (Article 12 IHR) and most international and domestic measures taken in response to outbreaks of respiratory infections caused by a new pathogen on the precautionary principle (IPPPR, pp.25/26; RCR-IHR, paras.96 and 151). Such an approach – especially when based on computer modelling making extreme predictions and operating on worst-case scenarios – could lead to a situation where both the WHO and states instantly spring into ‘emergency mode’ without there being a solid scientific or legal basis for such action, ordering strict public health measures that are likely to excessively limit or even derogate from human rights, in disregard also of important IHR provisions and implementing principles. This might happen even though neither a ‘public emergency which threatens the life of the nation’ is likely to exist (Article 4 ICCPR; Article 15 ECHR), nor the conditions of necessity and proportionality for human rights limitations in democratic societies are likely to be present (e.g. Article 21 ICCPR; Article 10 ECHR), nor Article 3(1) IHR, requiring that the implementation of the IHR ‘shall be with full respect for the dignity, human rights and fundamental freedoms of persons’, is likely to be complied with. To avoid any misunderstanding: the declaration of a PHEIC by the WHO Director-General under the IHR does not entail an obligation on (and not even a WHO recommendation to) states to declare a state of emergency derogating from IHRL and domestic constitutional rights (or de facto operate under emergency mode without public proclamation as required by Article 4 ICCPR/Article 15 ECHR). The approach favouring the precautionary principle runs the danger to normalise many of the far-reaching, fear-based ‘lockdown’ measures that states, and, at least indirectly via praising certain countries, the WHO, have adopted and promoted in response to SARS-CoV-2 with a global IFR at 0.15% and below 0.05% for people under the age of 70 that is comparable to that of seasonal influenza (IFR 0.16%). Many of these lockdowns made, if at all, only minute contributions to halting the spread of SARS-CoV-2 but resulted, and continue to result, in unprecedented interferences with human rights that seem neither ‘necessary in a democratic society’ nor proportionate, and the effects of which on human lives and livelihoods is coming to light and entering public discussion only slowly (see e.g. here and here).This may be the reason why shutting down all economic, political, social and cultural life in pandemics has never been recommended in pre-2020 pandemic guidelines, including WHO’s 2019 pandemic guidelines. Moreover, the three reports’ push for quick mass testing inheres the additional danger that rapidly developed highly sensitive tests which may say little about whether a person is actually infected, sick or had even died from a specific pathogen can lead to false-positives and raise ‘false alarm’ via the precautionary principle. Given the consequences of far-reaching global ‘emergency measures’ unnecessarily disrupting people’s lives and livelihoods in disregard of IHRL and of relevant IHR provisions, such developments should be safeguarded against in a new pandemic treaty.

Additional recommendations – for example concerning the adoption of a ‘whole-of-government’/‘whole-of-society’ approach (RCR-IHR, paras.32-33; IPPPR, pp.31 and 51) and tightening the control of the public’s access to information (referred to as ‘infodemic management’ (RCR-IHR, paras.104-105; Working Group Report, para.7(f))) – should also be carefully analysed for their compatibility with WHO’s and states’ duties under the IHR and IHRL before they are considered for inclusion into a potential new pandemic treaty. For example, it seems hardly permissible under IHRL and Articles 3(1) and 57 IHR to introduce a ‘whole-of-government approach’ (or ‘tiered command structures’) where all activities of public authorities are brought into line under the lead of the executive through public health ‘emergency measures’ and ruling by executive decrees, suspending the separation of powers and regular democratic legislative processes. Even in the unlikely case where the situation indeed meets the high threshold set out in Article 4 ICCPR and Article 15 ECHR, states have to continue offering effective judicial or other remedies to rights-holders, checking on the exercise of executive powers; and if human rights treaties’ limitation clauses are relied on, states must ensure the continued functioning of pluralistic democratic societies, including through elected legislatures (Article 3 P-I to ECHR; Article 25 ICCPR) as well as an independent judiciary. More generally, participation in decision-making processes of affected individuals must be ensured, including in regard to the possible prioritisation of certain health interventions in light of the actual disease burden and the allocation of public health budgets, as indicated in the UN Committee on Economic, Social and Cultural Rights’ General Comment No.14 on the Right to Health. This aspect also helps to prevent corruption, ensures transparency and checks on different actors’ industry-bias that has proved problematic already in the 2009 swine flu pandemic as investigated and reported on by the Parliamentary Assembly of the Council of Europe (‘The handling of the H1N1 pandemic: more transparency needed’).

‘Infodemic management’ through which the WHO (and the wider UN system) allegedly provides ‘authoritative, evidence-based, timely and up-to date information and advice, both to coordinate the global response and to support national pandemic responses’ (RCR-IHR, para.105) raise questions in particular in regard to the right to freedom of expression (Article 19 ICCPR) and the right to science (Art.15(1)(b) ICESCR). In practice, in the current Covid-19 pandemic, the WHO’s, the EU’s and states’ ‘infodemic management’ have led to censorship on platforms like YouTube, Facebook and twitter, with for example YouTube’s policy indicating that it does not ‘allow content that spreads medical misinformation that contradicts local health authorities’ or the World Health Organization’s (WHO) medical information about COVID-19’. Among the censored are highly qualified medical practitioners and scientists, academics and independent journalists, for example supporters of the Great Barrington Declaration and the inventor of the mRNA vaccine technology. If not handled with great care strictly within the limitation clauses of human rights treaties, there is a danger that this entrenches a global practice in a pandemic treaty that assumes that there is ‘one medicine’, ‘one science’ and ultimately, ‘one truth’ on SARS-CoV-2 and Covid-19, and any future pathogens, held by the WHO. This does not only undermine the rights to freedom of expression and to receive and impart information, including health-related information on the evidence basis for example of lockdowns, ‘social’ distancing, diagnostics, therapeutics and vaccine approvals, but it also misunderstands independent science which thrives on asking questions and thereby inter alia contributes to the constructive development of medical science, including on Covid-19.

Last but not least, the reports call for the establishment of a new global system of digitalised surveillance, combining ‘data mining’ with machine learning to detect and prevent new outbreaks (RCR-IHR, paras.111 and 149; IPPPR, pp.27, 52-53). Such priorities must be carefully examined for their compatibility with the human right to privacy, and the particularly strict protection of health data, should they be considered for inclusion into a new pandemic treaty.  

Inadequate enforcement mechanisms of the IHR?

The RCR-IHR (para.111) notes that ‘“the IHR has no teeth”; that is, there are no enforcement mechanisms.’ The same is observed by the Global Preparedness Monitoring Board annual report 2020, claiming that the IHR’s ‘lack of enforcement mechanisms has made it difficult for WHO to ensure compliance’ (p.45).

However, IHR does in fact have implementation mechanisms. It has been developed as the ‘IHR Monitoring and Evaluation Framework’, consisting of a mandatory component, which is the State Party Self-Assessment Annual Reporting tool abbreviated as ‘SPAR’, and voluntary mechanisms like the Joint External Evaluations (JEE) tool, after-action reviews, and simulation exercises. It is noticeable that all mechanisms, particularly the SPAR and JEE tool, focus narrowly on the implementation of IHR core capacities to detect, assess, notify, report and respond to public health risk and acute events, but do not oblige state reporting on the other elements of the IHR, including its overarching object and purpose (Article 2 IHR), the principles governing IHR implementation (Article 3 IHR), in particular human rights, and the provisions with regard to travellers’ rights. The reason for this is that IHR implementation tools have been developed by the Global Health Security Agenda (GHSA), though they are administered by WHO. In addition, some indicators found in ‘SPAR’ seem to go beyond the spirit of the IHR as no reference to relevant IHR provisions is provided in the short explanations, and the terminology used does not match the IHR. This is particularly true for the indicators referring to national health emergency frameworks (C8) or risk communication (C10), while important aspects of implementation, e.g. Articles 2 and 3 IHR, are not part of the indicators. As mentioned above, the concept of a PHEIC as enshrined in the IHR does not instruct state parties to automatically proclaim a national state of emergency or to issue emergency decrees derogating from domestic and international human rights.

Therefore, there is little reason to call for strengthening the implementation framework in regard to IHR core capacities in any new pandemic treaty. Rather, any review of the IHR enforcement mechanisms should focus on achieving a robust integration of IHR’s object and purpose, its implementation principles and thus of the compatibility of all measures with IHRL into the reporting and monitoring processes. This could lead to, for example, a duty on states to disclose their public health rationale for public health measures that go beyond WHO recommendations on how to respond to a specific PHEIC or other health risk in accordance with Article 43(3) IHR. It could also include reporting on and collection of states’ best practices on successfully responding to and managing Covid-19 and other disease outbreaks without enacting strict lockdown or other coercive public health measures, but measures that are clearly necessary and proportionate under the IHR and IHRL – i.e. based on available scientific evidence, least restrictive to human rights as well as tailored to local context.

Another area where innovation concerning a reform of the IHR implementation mechanisms is pertinent is in regard to the monitoring of WHO’s own obligations under the IHR. Without being a formal party to the IHR, WHO is bound by the IHR through the unique procedure on how ‘regulations’ are adopted under Article 21 WHOC (elaborated on further in the next section). There is, however, no monitoring or accountability mechanism that ensures WHO’s compliance with its obligations, including those related to the declaration of a PHEIC, the recommendations it issues and their compatibility with IHR implementation principles and IHRL.  

Procedural aspects: is Article 19 WHOC the correct avenue to draft a new treaty?

The IPPPR report (p.47) calls for using the WHA’s powers under Article 19 WHOC to adopt a treaty on pandemics that is complementary to the IHR. This reveals a misunderstanding of the WHA’s treaty-making powers. Relying on Article 19 WHOC to develop the new treaty would remove this treaty from the WHO’s corpus juris and the supervision of the WHO’s administrative structure. This would isolate the potential new treaty from the IHR and would preclude making the WHO a stronger ‘coordinating authority on global health matters’ in relation to this treaty as envisaged by the EU and the three reports.

To explain this further, the WHA’s special treaty-making competences must be set out briefly. Under the WHOC, the WHA can follow two distinct pathways of international treaty-making, which both lead to the adoption of multilateral treaties. First, Article 19 WHOC enshrines the WHA’s general treaty drafting competence ‘with respect to any matter within the competence’ of the WHO. The WHA can adopt a treaty by two-thirds majority vote, and each member state can then ratify the respective treaty ‘in accordance with its constitutional processes’. Second, a revolutionary fast-track treaty-making procedure is envisaged under Article 21 WHOC. It permits the WHA to adopt so-called ‘regulations’ in different areas listed in Article 21 by majority vote, among other in relation to the containment of disease. Regulations enter into force automatically for all WHO member states after the WHA has given states ‘due notice … of their adoption’ (Article 21 WHOC). Though states can opt-out by notification to the Director-General (Article 22 WHOC), this majority-driven procedure can speed up treaty-making processes considerably.

The WHA’s flexible treaty-making competences were included in the WHOC based on historical experiences. The WHO was established in 1948, taking over the functions of the Office International d’Hygiene Publique (OIHP) that operated on the basis of the International Sanitary Conventions adopted from 1851 onwards. These Sanitary Conventions can be qualified as the predecessors of the current IHR. However, the drafters of WHOC were acutely aware of the inflexibilities of the Sanitary Conventions regime: in the past, these Conventions had regularly proved out of date before they had even entered into force. The WHA’s fast-track competence to adopt ‘regulations’ was therefore included in Articles 21 and 22 WHOC as a flexible tool of disease containment.  

As indicated, adopting a potential new treaty on pandemics following the WHOC Article 19 procedure as suggested by the IPPPR report would remove this treaty from the WHO’s existing administrative machinery working inter alia on health emergencies and on communicable/non-communicable diseases. A new secretariat – affiliated to but not forming direct part of the WHO – would need to be established to administer the implementation of the new treaty, most likely through a separate WHA resolution. This new secretariat would receive state parties’ annual reports on their efforts to implement the respective new treaty as required under Article 20 WHOC and thus duplicate existing bureaucracy. Moreover, the new treaty would not bind the WHO itself, and no obligations on the part of the WHO would thus arise. Such are the arrangements that were established for the Framework Convention of Tobacco Control (FCTC) – so far the only Convention that has been agreed upon through the Article 19 WHOC procedure. Adopting a new treaty on pandemics following Article 19 would also mean that this treaty would exist as an instrument separate from the IHR, and not as an instrument that is complementary to the IHR.

If – despite the substantive and procedural legal issues raised above – it was decided that a new treaty on pandemics was indeed to be developed, the procedural avenue to be taken should be Articles 21 and 22 WHOC. Under Article 21(a) WHOC, the WHA has the substantive authority to adopt ‘regulations’ explicitly in the area of ‘sanitary and quarantine requirements and other procedures designed to prevent the international spread of disease’. For member states, these ‘regulations’ constitute nothing else but a ‘multilateral treaty’ as long as the substance qualifies them as such under the customarily applicable Vienna Convention on the Law of Treaties. The fact that ‘regulations’ are regularly deposited at the UN proves their qualification as ‘multilateral treaties’ for member states.

For the WHO, from a doctrinal perspective of the law of international organisations, these constitutional ‘regulations’ constitute unique ‘secondary’ WHO law within WHO’s corpus juris that is tightly interwoven with the WHO’s governing structure. Thus, whilst the WHO does not become party to the ‘regulations’, it is directly bound by these regulations. This also entails that the implementation of these regulations is administered through the existing institutional structures of the WHO, as is the case for the current IHR.

Last but not least, ‘regulations’ adopted under Articles 21 and 22 WHOC could be elaborated in a way that they effectively complement the existing IHR, thereby strengthening the grounding of WHO and state responses to pandemics in the principles that permeate the IHR as set out in Article 3 IHR: full respect for the human dignity and human rights, respect for the WHOC and the UN Charter, protection of all people from the international spread of disease and respect for the sovereign autonomy of member states to legislate and implement legislation in pursuance of their health policies in line with the IHR.    

Concluding remarks

In conclusion we would like to join the calls by others that those who will be engaged in the development of a new treaty on pandemics to ensure that this treaty recentres global, regional and national responses to and management of infectious disease outbreaks on the object and purpose of the IHR, its implementation principles and IHRL. To achieve this, a thorough, inter-disciplinary analysis of the WHO’s and states’ failings to comply with existing legal obligations under the IHR and IHRL in their responses to the Covid-19 pandemic and their effects on human lives and livelihoods seems necessary, complementing the findings of the three reports discussed above. This could contribute to the development of a new pandemic treaty – should this indeed be deemed necessary – that moves away from a securitised, monocausal approach to respond and manage pandemics that disregards the multi-dimensionality of the human experience recognised in the IHR and IHRL.