Analyzing the Implications of the Pandemic - Prevention, Preparedness and Response Accord
24 December, 2023
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Draft for negotiation by member states can be found here
In March 2023, countries of the World Health Organization began negotiations to arrive at a global accord on pandemic prevention, preparedness and response, using the “zero draft” as a basis for negotiating an agreement to protect nations and communities from future pandemic emergencies. The proposal for the negotiating text for the agreement was released on October 30th, 2023, to be debated by the WHO’s Intergovernmental Negotiating Body. The final vote of the 194 member states is proposed to take place in May 2024. The stated objective of the accord is, “guided by equity, the right to health and the principles and approaches set forth herein, is to prevent, prepare for and respond to pandemics, with the aim of comprehensively and effectively addressing the systemic gaps and challenges that exist in these areas, at national, regional and international levels”. Equity is stated as a general principle and approach of the treaty, and includes the “unhindered, fair, equitable and timely access to safe, effective, quality and affordable pandemic-related products and services, information, pandemic-related technologies and social protection.” Pandemic-related products, according to the text of the agreement, include diagnostics, therapeutics, medical equipment and drugs, but also, crucially, vaccines. This piece shall examine the major issues that have been raised in relation to the treaty, and make a case for its rejection by India come May 2024.
On a superficial level, the treaty articulates a prospective framework aimed at enhancing fairness and efficiency in global pandemic prevention, preparedness, and response efforts through collaborative international endeavors. It advocates for the formulation of a mechanism to guarantee the equitable distribution of pandemic-related commodities, including vaccines and diagnostic tests. Additionally, the document underscores a commitment to expeditious and transparent disclosure of clinical research and trial outcomes. It emphasizes the imperative of disseminating information on emerging health risks and acknowledges the World Health Organization (WHO) as the pivotal coordinating entity for international health initiatives. However, we must look beyond these seemingly noble objectives, into what the treaty truly entails and the powers that are to be conferred on the WHO if successfully ratified by member states.
Health as a Human Right?
Health has been recognised as a second generation human right since the adoption of the Constitution of the World Health Organisation, and reinforced by numerous treaties since. Though long been recognised internationally, an exception is the United States, where the right is not enforceable, alongside the right to access health care which is only partially funded by the federal government. Furthermore, there is apprehension about the free exchange of information and global actors that stand to profit exponentially with each pandemic. It is concerning that the most important global policy debate – one over intellectual property rights related to vaccines, their testing, and treatment – took place inside a commerce body, the World Trade Organization (WTO), with little regard for the right to health mounting death rates, rather than at the WHO. This clearly points us to the fact that the concept of the right to health in International law remains that — just a concept — to be put aside at critical moments in favor of commercial interests.
Repeated Failures of the WHO
It is not contested that though the WHO has had some successes, such as the eradication of smallpox and polio, its failures are a far bigger blot on the history of the organization and draw much criticism. From the Ebola epidemic in West Africa to HIV, the West Nile Virus, the Influenza pandemic, etc. most of the WHO’s efforts have been inadequate in the face of such health crises, whether global or regional. Additionally, both the WHO and the Security Council’s failure to take prompt action of any import during the COVID-19 global health crisis to mitigate the devastating effects of the pandemic have alarmed scholars and observers of international multilateral organizations. The WHO, backed by Chinese donors, failed to acknowledge, let alone hold accountable, the laboratory origins of the COVID virus in Wuhan. Moreover, big tech and media outlets were weaponized for censorship and suppression of free speech and the free exchange of information surrounding the disease, the lockdown measures, and vaccine mandates. The geopolitical tussle between the United States and China took precedence, leading to the collapse of global health governance structures and principles.
As pointed out by Colin Todhunter about the WHO’s actions during COVID-19, in his coverage of the Letter to Prime Minister Narendra Modi and Minister of Health and Family Welfare from a group of prominent lawyers, doctors and concerned citizens: “The seeds of totalitarianism were clear to see with Anthony Fauci saying that he is ‘the science’, former New Zealand PM Jacinda Arden declaring the government as the ‘single source of truth’ and social media companies working hand in glove with the deep state to censor and deplatform prominent figures and world-renowned scientists who questioned the official narrative. We saw the suspension of fundamental civil liberties with the threat of state violence on hand, often resulting in citizens being abused by de facto paramilitary police forces for breaching ‘pandemic rules’ that had no scientific basis.”
Challenge to Sovereignty?
Public health policy is the sovereign subject and function of nations, and though the treaty reiterates this fact, it also attempts to impose obligations on the member states and direct the actions of governments during a period of vulnerability, drawing concern. The powers of the WHO, delineated by its Constitution, are restricted to its authority to undertake international health work. WHO necessarily does not hold jurisdiction over national health work, therefore, the organization or its staff cannot enforce decisions such as imposing lockdowns, mandating vaccinations, or dictating the opening or closing of borders, as such decisions remain within the sovereign domain of each nation. However, the recommendations of the WHO and its treaties so formulated, run the risk of superseding the recommendations of the national level health organizations and policy making advisory bodies.
At the Health and Democracy Conference held at the EU Parliament, Strasburg on 13 September, 2023, Philipp Kruse, one of the lawyers involved in the citizens’ initiative, delivered a speech urging the EU to reject the WHO’s treaty. One of the crucial arguments stated by Kruse, through his reading of the agreement, was that the treaty was an attempt at expanding the powers of the WHO permanently over the sovereignty of 195 member states nations and the self-determination of peoples. The proposed contents of the treaty and changes to the IHR (International Health Regulations) can be seen as intrusive. Moreover, he criticized the phrase “One Health” (from Article 5 of the draft, which seeks to incorporate environmental and animal health factors into public health) as being vague and indeterminate, which is problematic since many an obligation may be read into the phrase at a later stage, either by the WHO itself, while formulating rules/guidelines, or even, by the International Court of Justice which is tasked with the interpretation of treaties to settle disputes. Further potential risks outlined by Kruse were that WHO would, through the treaty, declare states of health emergencies, recommendations, etc. and acquire the right to impose globally/regionally public emergency restrictions, lockdowns, surveillance (to identity zoonotic outbreaks, as mentioned in , and experimental treatments (Article 18 of the draft). Moreover, the WHO would gain the right to declare information as being related to health, and claim sole proprietorship of all such health and vaccine-related information, apart from being able to interfere in social communications and engage in censorship.
The WHO lacks critical institutional structures for financial management, transparency, and accountability, and therefore, as a unelected and undemocratic body, the expansion of its powers and ability to dictate the health policy of sovereign nations is rightly seen as an alarming change (the same criticism may be extrapolated to the United Nations and the corpus of international law as a whole, as well). Once a treaty has been accepted and ratified by the member states, it imposes certain responsibilities and obligations on the states that are irreversible — and acquire more force with the passage of time — which more powerful nations often forsake without consequences but weaker nations more often than not must obey.
Big Pharma and Vaccine Mandates
The body representing the global innovative pharmaceutical industry in official relations with the United Nations, the IFPMA, issued a statement in response to the treaty that it impedes access to pathogen genomes to delay innovation in treatment. The treaty’s recognition of the effect of intellectual property (IP) rights on the pricing of treatment and its availability is noted (article 11 suggests the pooling of IP, particularly with manufacturers in developing countries. Additionally, given the expedited clinical trials and refusal of the WHO to acknowledge or report more recently detected side effects and adverse effects that were seen with the m-RNA vaccines developed against COVID-19, the possible imposition of vaccines whose safety profiles are indeterminate, on vast populations is a foregone conclusion. Of course, it is of massive benefit to the shareholders and CEOs of pharmaceutical companies than to the vulnerable populations of developing nations with limited access to healthcare and information. Slovakia is primed to reject the treaty, citing concerns surrounding the supposed influence of Bill Gates. Slovakian Prime Minister Robert Fico, refusing to strengthen the competencies of the WHO in any way, called the move a “fabrication created by insatiable pharmaceutical companies” and Erik Kaliňák, his senior adviser, talked about the move as “another effort by globalists to weaken the power of nation-states”.
Health Policy
When it comes to health policy, there is no one-size-fits-all solution, certainly not any generic or universal methodology. As observed at the wake of the COVID-19 pandemic, different countries must employ differing measures to control the spread of disease, prevent new cases, and treat existing cases using existing healthcare infrastructure. Important considerations are, for instance, the ratio of doctors/healthcare workers in comparison with the population, the median age of the population, the prevalence and communicability of the particular disease, accessibility to healthcare, economic status of the government, etc. These metrics vary extremely widely from country to country, and therefore, any health policy framed cannot be universal. Certainly, when it came to India, though over a billion strong, mortality rates were relatively low during the COVID pandemic, due to various regional factors. Thus, governments must preserve their flexibility to act in accordance with the specific crisis at hand in order to assure effectiveness, and any treaty being framed with respect to health policy must necessarily reflect the same. Handing over the powers to make health-related decisions to an international organization does not appear to be in the best interest of sovereign nations, especially given that the treaty shall effectively confer powers onto the WHO to self-authorize to not only declare health emergencies of international concern but also sustain the state of crisis for as long as deemed necessary, and importantly, to make legally binding recommendations and monitor and survey the states and the populace alike during the period. Rules framed by the WHO under the newly conferred powers could take the form of mandatory screening, medical procedures, vaccine/treatment mandates, forced isolation and quarantine. While recommendations are generally considered “soft law”, non-compliance can often invite a host of consequences, including, presumably sanctions of various sorts, disruptions in supply chains, and the cutting off of financial and/or other types of aid. Citizens are left with no recourse once this irreversible tide has been brought on.
The WHO’s Failures: Influence of Global Governance on Domestic Institutions and Policy
Global governance refers to the network of institutions, mostly non-governmental and multilateral, that coordinate with transnational actors, facilitate cooperation, and resolve disputes. It involves governance, without sovereign authority, of relationships that transcend national frontier (Finkelstein, 1995). There are more NGOs than ever before, playing the role of powerful actors, involved in shaping policy, negotiating agreements, and monitoring rates of compliance by states with those agreements. According to Lee Jones and Shahar Hameiri in Explaining the failure of global health governance during COVID-19, global governance is key to state transformation, and state authority is outsourced to “diverse, fragmented actors with enhanced autonomy from domestic democratic constraints, allowing many to engage, and increasingly develop joint policies with, their overseas counterparts”. Then, “these networks develop rules, standards, guidelines and other forms of ‘soft’ international law, which national agencies are then directed to embed domestically. Implementation is typically monitored and encouraged through benchmarking against internationally agreed standards, rather than coercion”. Importantly, these networks are directly linked to powerful states’ ostensibly domestic institutions through their acquisition of international functions. In this manner, international organizations such as the WHO are used for meta-governance. Rather than governing from the outside, through the direct imposition of global rules on member states, they chiefly operate through cultivating changes within states to harmonize domestic policies, institutions and procedures. In this manner, global governance circumvents negotiations, and roadblocks in agreements and multilateral cooperation between states. Delinking policy-making from domestic political processes tends to weaken the effect and intent of the policy. This is where the failures of the WHO can be arrived at. Jones and Hameiri state that since the WHO has come under donor control, its agenda has given way to pro-market meta-governance, compromised the WHO’s independence and its pandemic response capacity, leaving it unable to do much beyond regulating and evaluating national arrangements.
“In 1982 the WHO budget was frozen and in 1985 the United States withheld 80 per cent of its financial commitment in protest at the WHO’s Essential Drugs Program, which American pharmaceutical companies opposed. Wealthy states increasingly rerouted support for health-care development through the World Bank, thus subordinating it to the structural adjustment agenda, leading to a wave of privatizations and cost-cutting, followed by a push for public–private partner- ships.. The WHO’s operational budget was slashed, leaving it dependent on voluntary donations. By the 2000s, discretionary donor funding comprised around 80 per cent of WHO expenditure, making it subservient to wealthy countries’ demands.”
At the onset of the COVID-19 pandemic, the hollowing out of the WHO left it subservient to major donors, which now included China, where the outbreak originated, further attenuating its response. The WHO’s most disastrous act was to endorse China’s lockdown policy, which fuelled mounting panic and calls for extraordinary measures across the world, and created intense media and public pressure on other governments to follow suit. The WHO disastrously continued supporting lockdowns long after it became clear that eradication was impossible.
Hurtling towards a global Surveillance State?
Article 1 defined “WHO coordinated laboratory network” as “the international network of laboratories, coordinated by WHO, that conduct year-round surveillance of pathogens with pandemic potential, assessing the risk of an emerging pathogen with pandemic potential and assisting in pandemic preparedness measures”. Article 4, “Pandemic prevention and public health surveillance” recommends cooperation for monitoring and surveillance, both among member states and with the WHO Secretariat. In addition, surveillance finds mention in Article 5, relating to One Health, as well as Article 6 and Article 8, setting off alarm bells. Article 12 states that a WHO PABS system must be established: “The Parties hereby establish a multilateral system for access and benefit sharing, on an equal footing, the WHO Pathogen Access and Benefit-Sharing System (WHO PABS System), to ensure rapid and timely risk assessment and facilitate rapid and timely development of, and equitable access to, pandemic-related products for pandemic prevention, preparedness and response.” What is the extent to which information relating to public health and pathogen data must be made available to unaccountable international organizations? Are there data privacy concerns? Can the provision of such information be considered a breach of national security? Can we be assured that states are held more accountable for their actions, just as China and the United States were for the COVID-19 pandemic?
Prolonging the Pandemic?
Article 9(4) imposes upon the signatory states the obligation to fund and publish research and development on pandemic-related products; and reads as follows:
“Each Party shall, in accordance with national laws and considering the extent of public funding provided, publish the terms of government-funded research and development agreements for pandemic- related products, including information on: (a) research inputs, processes and outputs, including scientific publications and data repositories, with data shared and stored securely in alignment with findability, accessibility, interoperability and reusability principles; (b) the pricing of end-products, or pricing policies for end-products; (c) licensing to enable the development, manufacturing and distribution of pandemic-related products, especially in developing countries; and (d) terms regarding affordable, equitable and timely access to pandemic-related products during a pandemic.”
Financial Burden
Article 20 (1) imposes additional financial responsibility on member states to commit to strengthening pandemic preparedness and response, supporting other parties, and the responsibility to mobilize resources as necessary. Article 20 (2)(a) and (b) read as follows: “2. A sustainable funding mechanism shall be established by the Conference of the Parties no later than 31 December 2026. The mechanism shall ensure the provision of adequate, accessible, new and additional and predictable financial resources, and shall include the following: (a) A capacity development fund that shall be resourced, inter alia, through the following: (i) annual monetary contributions from Parties to the WHO Pandemic Agreement; (ii) monetary contributions from recipients pursuant to Article 12 herein; and (iii) voluntary monetary contributions from Parties to the WHO Pandemic Agreement. (b) An endowment for pandemic prevention, preparedness and response, resourced, inter alia, through the following: (i) voluntary monetary contributions from all relevant sectors that benefit from international work to strengthen pandemic prevention, preparedness and response; and (ii) donations from philanthropic organizations and foundations, and other voluntary monetary contributions.”
As may be garnered from the terms of the treaty, there are no efforts at full disclosure or transparency when it comes to the expansion of the powers and the role of the WHO, currently being held hostage to the interests of wealthy donor nations and private organizations, violating the principle of informed consent while being signatory to a contract. The mention of philanthropic organizations, undoubtedly including the Gates Foundation, among others, leave little to the imagination.
A group of prominent lawyers, doctors and concerned citizens have written to Indian Prime Minister Narendra Modi and Minister of Health and Family Welfare Shri Mansukh L Mandaviya urging them to reject the WHO’s global pandemic treaty, premised on the claim that the treaty is ultra vires the constitution of India. The 10-page letter can be accessed in full with all relevant links and references on the Awaken India website: WHO Pandemic Treaty Ultra Vires of the Constitution.
Supporters of the treaty argue that a collective approach is the only solution to mitigate the effects of a future pandemic, however, the states championing the treaty are not the ones suffering the downstream effects of vaccine nationalism, inaccessible oxygen, lack of funds to support health system surge capacity, etc. Wenham, Eccleston-Turner, and Voss state that “global processes for health cooperation rooted in a globalist vision of the individual and health equity are fundamentally at odds with the Westphalian state-based system in which we live, which prioritizes state security and the health of a selected few at all other costs. Even something as big as a major global pandemic is not sufficient to get governments to think beyond national interests” — a sentiment that rings true. Talk of solidarity and global corporations appears to be the global north’s way of doing something without actually accounting for disparities and inequity. With countries such as Australia and Slovakia already primed to vote against the adoption of the treaty, and nations such as New Zealand showing hesitancy, it is prudent for India to reconsider its own position, and evaluate the terms of the treaty according to its effect on India’s national health policy rather than adhering unquestioningly to international law. If behaving as a powerful state would be to place national interest above globalist considerations, so be it. For once the ball gets rolling, it would be impossible to stop, not even by the signatory member states, and least of all by the common citizenry that are affected by the health mandates that will probably be effectuated by the organization.
References
Soliman, A., Taguchi, K., Matsoso, P., Driece, R.A., da Silva Nunes, T. and Tangcharoensathien, V., 2023. WHO pandemic accord: full adherence to the principle of sovereignty. The Lancet, 402(10410), pp.1322-1323.
Lee Jones, Shahar Hameiri, Explaining the failure of global health governance during COVID-19, International Affairs, Volume 98, Issue 6, November 2022, Pages 2057–2076.
Clare Wenham, Mark Eccleston-Turner, Maike Voss, The futility of the pandemic treaty: caught between globalism and statism, International Affairs, Volume 98, Issue 3, May 2022, Pages 837–852
Finkelstein, Lawrence S. “What is global governance.” Global governance 1 (1995): 367. Barnett, M. N., Pevehouse, J. C., & Raustiala, K. (2022). Global governance in a world of change. Cambridge University Press.
LAWYERS, DOCTORS and CITIZENS ACROSS INDIA WRITE TO THE PRIME MINISTER & MINISTER, MOHFW: THE DRAFT ‘GLOBAL PANDEMIC ACCORD’ OF THE ‘WHO’ IS ULTRA VIRES OF THE CONSTITUTION OF INDIA AND INDIA CANNOT BE A SIGNATORY TO IT The letter addresses the plans of the World Health Organisation (WHO) through its proposed Global Pandemic Accord and IHR Amendments to be in charge of World Health and the dire implications thereof for Countries’ Sovereignty. It highlights worries about the accord’s potential impact on India’s sovereignty and citizens’ rights. The accord suggests granting the WHO unprecedented powers that could infringe upon national autonomy and individual liberties. Concerns revolve around potential coercion in medical procedures, ethical violations, and the erosion of fundamental rights. Urgent attention and scrutiny of this matter are urged to safeguard constitutional values and citizen rights. Summarised by Colin Todhunter, December 17th, 2023