Set into Orbit: WHO Member States Agree to Binding Nature of a New Instrument to Govern Pandemics

New rules to also have non-binding elements.

In a decisive move, WHO member states, this week, agreed on a legal route to frame new, binding and non-binding rules to govern pandemics. This was the outcome of the second Intergovernmental Negotiating Body that was set up to draft and negotiate a WHO convention, agreement or other international instrument on pandemic prevention, preparedness and response.

For the moment, it appears member states have bought time, for, the consensus language suggests that the new instrument could be affiliated to Article 19 of the WHO constitution (a reportedly “wider” opt-in approach), while also not excluding rules under Article 21 (an allegedly “narrower” opt-out approach).

The four-day meeting (July 18-21), resulted in consensus on adopting the following language on the legal approach to new rules:

“Regarding the identification of the provision of the WHO Constitution under which the instrument should be adopted, the INB agreed that the instrument should be legally binding and contain both legally binding as well as non-legally binding elements. In that regard, the INB identified that Article 19 of the WHO Constitution is the comprehensive provision under which the instrument should be adopted, without prejudice to also considering, as work progresses, the suitability of Article 21. This identification is made mindful that the decision will be made by the World Health Assembly.”

Draft report of the second meeting of the INB, July 21, 2022, 3:00 p.m.

(seen by Geneva Health Files)

Apart from identifying the underlying legal approach in a potential new instrument, countries had rich discussions on principles and motivations behind the substantive elements in the working draft. This revealed emerging positions of countries on certain issues. This story attempts to capture some of the key features of these discussions and the politics they hint at.                              

Just to give you a flavor, consider the debate around the reference to the principle on common but differentiated responsibilities (CBDR). Many developing countries including Bangladesh, Brazil and others suggested that the principle of common but differentiated responsibilities (CBDR), an established concept in environmental treaties, should be brought into pandemic preparedness and response.

This was contested by other countries including, Monaco, New Zealand, United States, who were unsure of using concepts from other instruments. (The working draft uses a new terminology: Shared but Differentiated Responsibilities). The US suggested that CBDR was not a recognized principle in global health. Countries including Argentina said that CBDR was already defined in the Rio Declaration and the UN Framework convention on climate change and must not be redefined again.

The following analysis essentially has three parts on the discussions between countries: on the substantial provisions, second on the legal route, and on expanding the list of relevant stakeholders. Some parts of the meeting were webcast here.

Photo by Kévin Dorg:

Continues here.

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