A treaty to ‪disconnect our fight against pandemics from the recklessness of politics

The COVID-19 outbreak exposed our global mechanisms to suppress pandemics as dramatically unfit for purpose. It also made painfully clear that authoritarian regimes and populist governments present an immense risk to public health, even outside the borders they control.

Both these realisations should spark an urgent effort to negotiate and conclude a global treaty for the suppression of pandemics.

Reengineering our legal constructs to protect humanity from pandemics should ensure that the global response is detached from the life-threatening inclinations of reckless politics.

The International Health Regulations of the World Health Organisation (WHO), first adopted in 1969 and updated in 2005, purport to addresses the international spread of infectious diseases. The WHO adopted the Pandemic Influenza Preparedness framework in 2011, for the sharing of influenza viruses and access to vaccines and other benefits.

Nevertheless, existing WHO legal tools have proven ineffective in containing the COVID-19 outbreak. The majority of State responses have been characterised by delays and discord, with adverse repercussions in the struggle to prevent the loss of life.

China, ‘country zero’ in the pandemic, has found itself at the epicentre of criticism for its response to the outbreak. China delayed both in alerting the WHO of the outbreak and in sharing the genome sequence with the WHO. It also resisted allowing WHO observers entering the country. These elements, alongside the provision of false figures on its domestic fatalities (now revised upwards by 50% with respect to Wuhan), suggest that China’s missteps might not all be confined to failings of its State apparatus.

In the US, President Trump’s rhetoric has oscillated between demonising the WHO and disseminating false information on the risks to public health, while the country spiralled into suffering the highest number of deaths globally. The EU, which shares competence with its member states in public health, proved slow in responding to the crisis, leading the President of the European Commission to publicly apologise to Italy and Spain.

International law is often deprived of genuine enforcement mechanisms, which inform the effectiveness of legal rules and determine the behaviour of States. The void in enforcement means that the current international legal framework on the control of pandemics cannot result in effective sanctions against States which breach the rules in place.

Drawing on the disarray in the response of authoritarian and populist regimes around the world in dealing with the COVID-19 pandemic, the need for the introduction of an effective legal architecture to control and suppress pandemics becomes clear.

Reengineering our legal constructs to protect humanity from pandemics should ensure that the global response is detached from the life-threatening inclinations of reckless politics.

Much like the international criminal order emerging from the ruins of Nuremberg into becoming a full-fledged enforceable legal architecture, a new normative order should come into place in the aftermath of the COVID-19 pandemic. In this new order, the suppression of pandemics should become a universal concept, creating obligations that all States owe to all others, as erga omnes obligations.

A global treaty will need to regulate the global-level response to early warning, information exchange, coordination on resources and best practices, monitoring the spread and, inevitably, sanctions for conduct that breaches such obligations.

One of the obligations on States under this new framework should be the mandatory sharing of information and data. Under the current WHO framework, States can independently assess and report sufficiently grave health threats to the WHO.

States should not be left to their own devices in terms of reporting potential or actual threats to health, a process which is open to manipulation. An international monitoring platform could be deployed, to which States will be required to submit information on potential and actual health threats based on scientifically objective criteria and thresholds, within binding timeframes.

The top-down information exchange is equally important. Binding directives on the prevention and suppression of public health threats could be provided to States form an international organisation established for this purpose, whether this will be a transformed WHO or a successor body. In alignment with the hierarchical supremacy of State sovereignty, States would always be able to determine the steps in suppressing a pandemic within their borders.

However, deviating from the international scientific consensus expressed in binding international directives should not be possible without repercussions for non-compliant States. Sanctions should bite in such cases, so that States conducting themselves in a manner that threatens their own and other populations can be held accountable.

Another obligation on States could be the monetary contribution to a permanent international fund to suppress pandemics. In the COVID-19 pandemic, the WHO only reached its funding goal around the time when the number of worldwide cases passed 1 million. A global pandemic suppression fund could be used for pooling State resources for research and development purposes.

Aid could also be channelled to States which are financially unable to obtain fundamental medical supplies. Assisting impoverished and disadvantaged States to suppress the pandemic should not be a controversial matter, as it can facilitate the control of the pandemic in the interests of humanity as a whole.

Lastly, a global treaty on pandemics could enable State access to essential medical supplies to eradicate competition between States to obtain such supplies. The proclamation of a pandemic could automatically lead to a deviation from trade restrictions that might otherwise impede access to essential medical supplies. Trade agreements between States could incorporate such deviation in their provisions, to align themselves with the new global framework to fight pandemics.

This new legal architecture is necessary to universalise the control of pandemics in detachment from politics and the unilateral choices of each State.