Measures to ensure that the Pandemic Treaty serves the purpose of protecting all people, especially including those in low-income countries with limited financial resources and fragile health care systems

Open civil society letter to the WHO INB, November 2022

Dear members of the intergovernmental Negotiating Body,

We are writing on behalf of some public interest stakeholders invited to participate in the Pandemic Treaty Negotiations and other civil society organizations sharing their concerns and expectations about the  “Conceptual Zero Draft of the proposed WHO convention, agreement or other international instrument on pandemic prevention, preparedness and response” (the Pandemic Treaty)  which is expected to be published by the INB Bureau in mid-November and form the basis of formal negotiations after the next INB session on December 5-7, 2022.

In our view, the Pandemic Treaty should reflect the following collective understanding and guidance to member states.  We believe these elements are on sound legal, public policy, ethical, and scientific footing.  However, we are also aware that strong commercial interests may resist some measures. Likewise, governments in some high-income countries may resist significant financial outlays to support populations in lower-income countries as generously as their own populations, even if doing so on a single lower order of magnitude is justified and conducive to the belief that nobody is safe until everyone is safe.  The International Court of Justice has repeatedly ruled that it is obliged to interpret international law in a manner that ensures equity and will decide factors applicable to the circumstances, though recognizing and operationalizing equity in the Pandemic Treaty seems wise and fair.

Gravity of foreseeable disease risks: The Pandemic Treaty should acknowledge the gravity of the COVID-19 pandemic and the estimates that it caused 18 million “excess deaths” in the first two calendar years, 2020 and 2021, approximately three-fold higher than the 6 million officially reported deaths, and an average of 15% more deaths per year than in 2019, according to the Lancet Excess Mortality Collaborators.  In the future, it could be worse.

Conflict-of-interest safeguards: The Pandemic Treaty negotiations, content, and implementation should be subject to conflict-of-interest safeguards to ensure that companies, industry associations, and any civil society organizations and experts they financially support do not secretly or even transparently use the Pandemic Treaty to further their financial interests.  (See Part IV, paras. 5 and 9(d) of the Jul 2022 Working Draft.)  Some industries of potential concern include the pharmaceutical and medical commercial product developers in the private healthcare sectors, surveillance technology, tobacco, alcohol, correctional, weapons and the military-industrial complex, NGO, trust, corporate philanthropies or foundations funded by entities within the categories listed above, any other entity that might pose create a conflict of interest.

Primacy of human rights of natural persons and communities relevant to health over business legal rights: The Treaty implementation mechanism must recognize fundamental human rights, including the right to health and to safe and nutritious food, medicines, and healthcare and a methodology for sharing the burden of realizing these rights, including in relation to enforceable intellectual property, trade and investment treaty entitlements.  The Pandemic Treaty should also acknowledge recurring human rights violations in the context of pandemics, and rights that are particularly at risk in pandemic times, and integrate international standards on derogation and limitation of rights in times of public health emergencies with additional, specific attention to the realization of economic, social and cultural rights that are currently not sufficiently protected by the Siracusa Principles. It should also clarify that, in line with those standards, pandemic response should be managed by civilian authorities (vis-a-vis law enforcement), with a whole-of-government approach.

Pandemic prevention: The Pandemic Treaty must prioritise prevention at source and, accordingly, One Health and the rights to clean water and sanitation and to a clean, healthy and sustainable environment should be integrated as central, guiding principles and objectives and mainstreamed throughout the Pandemic Treaty.

Enforcement: The Pandemic Treaty should stipulate effective, actionable enforcement mechanisms in consideration of the primacy of the human rights of natural persons and communities, especially in relation to property rights of private corporations with which true human rights sometimes conflict (including interests in intellectual property and the advertising, promotion and sale of products that could protect or undermine health) in consideration of the wide variety of “soft” and “hard” enforcement mechanisms that ensure compliance with other international agreements and national laws.

Standing of civil society: The Pandemic Treaty, negotiation process, and implementation should entrench an effective and meaningful role for public interest, public health, human rights civil society, and community organisations to securely and predictably participate in the governance, enforcement, and continuous elaboration of further refinements to Pandemic Treaty obligations including the negotiation of additional protocols and the right to participate as interveners or amicus curiae in international tribunal or court proceedings.  Secret negotiations (that exclude public interest groups and the media) are not conducive to effective government and public trust with sufficient access to information and transparency of decision-making, consultation registers, lobbyist registries, internationally and nationally. They should be avoided.

Proportionality of human rights: International and national countermeasures should be designed to protect public health and social security, but be proportional between the risk to health and well-being and balanced against other rights and, where possible, quantified and based on the best available expertise and information recognizing that effective measures may be time-sensitive. All countermeasures must comply with international standards on limitations and derogations to human rights.

The right to health is a building block right: The right to health is a building block right, on which the realization of other rights depends.  Beware a tendency to drift into thinking that the major concern is the suspension of collateral human rights caused by countermeasures such as restrictions on freedom of assembly (to prevent infections in congregate settings) or limits on freedom of expression (to discourage the promotion of untested remedies or unreliable studies that undermine countermeasures). However, suspension of collateral rights (e.g., freedom of assembly and free expression to dispute science-information countermeasures) should certainly be proportional to the objectives of impeding infection outbreaks, illness, and death.

The right to health is indivisible: Life expectancy and premature death and disability are important, though imperfect indicators of the realization of the right to health.  The Pandemic Treaty should not elevate the right to be free from a pandemic illness above the right to be free of other equally or more harmful illnesses, including non-communicable diseases such as cardiovascular disease, cancer, diabetes and chronic obstructive pulmonary disease that kill two-thirds of adults and gastrointestinal and lung infections attributed to suboptimal breastfeeding that now likely kill approximately 900,0003 infants and young children per year.  Poor public health infrastructure and access to care and medicines in low- and middle-income countries put populations at risk.  Healthcare solutions that make people with NCDs envious of people with global infectious diseases, or vice-versa, do not comport with the right to health.

Investigatory powers: The Pandemic Treaty must establish a mechanism for conducting arm’s length expert investigations into causes and countermeasures that commits member states to fully cooperate by default, not through arrangements that are negotiated on a case-by-case basis.  

Accountability and enforceability: The Pandemic Treaty should distinguish between moral or political accountability and legal (justiciable and enforceable) accountability.

Equitable global access to pharmaceutical products: A Pandemic Treaty must  include the following elements:

    • Transparency: The Pandemic Treaty should mandate transparency in all access to medicines spheres, including costs (e.g., for research & development and production), prices, data, contracts,  and the patent landscape.
    • Sharing intellectual property, know-how and technology: The Pandemic Treaty should include clear and binding clauses to limit intellectual property rights and require transfer of know-how and technology. The Pandemic Treaty must commit States Parties  to limit intellectual property rights and compel rights holders to share know-how, technology, and rights to use safety and efficacy test data to obtain regulatory approvals.
    • Deemed contractual terms in countermeasure procurement: The Pandemic Treaty must contain obligations for governments to set conditions in their funding agreements that safeguard public benefits.
    • Public Health Advocacy Fund: States Parties should contribute to an Advocacy Fund to ensure that low- and middle-income country governments seeking access to medicines governed by intellectual property agreements are able to avail themselves of all opportunities to assert human and public health rights.

Promote a prepared and healthy workforce, especially to deal with surges in care: States Parties must recognize in the Pandemic Treaty that until high-quality healthcare is available to all without financial barriers, ill-health will impede the life chances of people and the economic and social development of peoples.  While the worst ravages of COVID-19 befell the elderly, future pandemic may not repeat that pattern.  Even high-income countries staffed by expensively trained health professionals in right-sized hospitals stored with adequate pharmaceutical and medical technology suffered from staff and supply shortages and staff burnout, exacerbated by still relentless waves of infections.  In lower-income countries, the waves of infectious disease outbreaks exacerbate horribly inequitable access to medical care for cancer, cardiovascular disease, diabetes, HIV/AIDS, pneumonia, malaria, and other communicable and non-communicable diseases. Governments and the global community need an integrated healthcare human resource strategy to prepare for surge control in pandemics and meeting ongoing healthcare needs.

Avoid acronyms and initialisms:  The July 13, 2022 19-page “Working draft, presented on the basis of progress achieved, for the consideration of the Intergovernmental Negotiating Body at its second meeting” uses the short form “WHO CAII” which will stymie public-facing communications and likely be substituted with various other titles by news media.  Instead, use “Pandemic Treaty” or “Pandemic Prevention & Response Treaty.”  The Pandemic Treaty negotiations could be described in WHO Parlance as “The WHO INB hosting IFCs to explain the convention’s relationship to GSD, UHC, PHC, IHRs, TRIPS, IP Waivers using the experiences of the WGGPR.” using only one initialism that is recognized by the public: “WHO.”

Burden-sharing formula: The Pandemic Treaty should stipulate a formula for burden-sharing by member states for international countermeasures and national countermeasures in low- and middle-income countries in consideration that there are unequal financial and technical resources to treat, prevent, and detect infectious diseases and that effectively countermeasures benefit global public health security.  The rise in public spending on national COVID-19 countermeasures in high income OECD countries exceeded the average per-capita rise in Official Development Assistance per capita received by low- and middle-income countries by more than 1,000-fold.  Global financial support must be significantly higher to equitably and effectively prevent and combat pandemics.

Ensure adequate financing for pandemic prevention, preparedness and response, in addition to existing finance for health:   The Pandemic Treaty needs to stress the importance of mobilizing public finance for health and pandemic countermeasures, and the urgent need for strengthening health systems. The funding that is needed for all three approaches should be additional funding and not compete with existing funding in the global health sphere. This requires new sources of public funding. Any new funding modality/mechanism should be broad in scope with a focus on prevention and acknowledging that prevention is more than just containment of outbreaks or surveillance.

The governance of global finance for pandemic PPR should move beyond the ‘one-dollar-one-vote’ aid paradigm that has plagued many institutions and become, instead, a modern inclusive way of financing global public goods based on fair-share contributions and in which decision-making is shared between countries of different income levels, different regions, and civil society.

The Pandemic Treaty should establish a Registry of Official Pandemic Countermeasures Contributions in which each country reports the amount it offers–additional to pre-pandemic support–provided to low- and middle-income countries (expressed in local currency  and US dollars or Swiss francs) to address pandemic matters and to support citizens and residents in its own borders and endeavor to commit at least 5% of the total spent on domestic countervailing measures on measures in low- and middle-income countries.

We urge you to ensure that the Zero Draft of the Pandemic Treaty portrays the most effective and equitable way to protect the peoples of the world. The whole world is watching.

The drafting, publication and dissemination of this open letter to the Bureau of the Intergovernmental Negotiating Body to draft and negotiate a WHO convention, agreement or other international instrument on pandemic prevention, preparedness and response (INB) has been facilitated by the Geneva Global Health Hub (G2H2) and its working group on the INB process, as a service to its members involved in this process. Contact for enquiries: G2H2 Secretariat.

Illustration taken from: “The politics of a WHO pandemic treaty in a disenchanted world”, G2H2 report, November 2021