OPINION: Is a WHO pandemic treaty set to fail?

by Andres Constantin | @AConstantin_ | O’Neill Institute for National and Global Health Law
Tuesday, 30 November 2021 17:05 GMT

FILE PHOTO: A logo is pictured outside a building of the World Health Organization (WHO) during an executive board meeting on update on the coronavirus outbreak, in Geneva, Switzerland, February 6, 2020. REUTERS/Denis Balibouse/File Photo

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* Any views expressed in this opinion piece are those of the author and not of Thomson Reuters Foundation.

The adoption of a ‘pandemic treaty’ could mitigate harm next time we are hit by disease but only with reforms to the international legal system

Andrés Constantin is a global health lawyer and advocate from Argentina, currently working on legal and policy issues relating to health at the O’Neill Institute for National and Global Health Law at Georgetown University. 

In May this year, my parents received their first shot of the Russian Sputnik COVID-19 vaccine, the only one available at the time in Argentina. They were supposed to get their second jab in three months, as per the health authorities’ guidelines. That day never came.

In those three months, other vaccines made by Western companies had become available. However, because of Argentina’s vaccine strategy and a desire to prioritize the use of the Russian vaccine for diplomatic and political reasons, Argentinians were made to wait longer, putting them at greater risk of becoming sick due to COVID-19.

A lot of time has been spent discussing how wealthy countries engage in vaccine nationalism, abusing their economic power over poorer countries that need vaccines. But one aspect of the debate has not received the attention it deserves: vaccine diplomacy or, in other words, what happens when countries put their geopolitical goals ahead of their own citizens’ well-being?

To ensure governments protect their citizens’ health, the World Health Organization, academic groups, and international experts have begun to consider the adoption of a Pandemic Treaty to mitigate the harm of the next pandemic. Unfortunately, any pandemic treaty will be insufficient unless it seeks to rearrange the incentives that drive the international legal system.

Back in March 2021, several heads of states, the WHO Executive Director and the President of the European Council called for the adoption of an international treaty to prevent and respond to future health crises. Surprisingly, in what represents a historic action, 194 countries passed a World Health Assembly resolution to host a special session to discuss such idea. The hopes are that this new international treaty would help support efforts to reinforce global health security, in light of mistakes made during the COVID-19 pandemic.

And mistakes were made, not least thanks to vaccine diplomacy. While most countries are still struggling to get vaccines for their people some, like Argentina, Brazil, Cuba, or Zimbabwe, have rejected vaccine donations, or resisted buying a particular vaccine, to favor geopolitical interests over public health. With the Delta variant spreading through the world, and the threat of new variants looming on the horizon, countries are now starting to grasp the full consequences of their political decisions.

For example, in Argentina alone there were more than 400,000 new confirmed cases of COVID-19 and more than 8,000 deaths in the three-month period that the country waited for the second component of the Sputnik vaccine supply to arrive and before deciding to allow the mixing of vaccines.

Three months after my parents received the first dose of the Sputnik vaccine, with COVID-19 cases rising and despite political promises no second dose of Sputnik in sight, the Argentinian government relented and recommended the use of other vaccines. My parents were finally able to get a second dose—this time from Moderna.

This was a great relief to me and to many Argentinians. It was also the cause of unnecessary stress.

Governments have a clear duty to protect the health and lives of their citizens from infectious diseases, like COVID-19. It is simply immoral and may even be illegal  when countries are unwilling to do so. In fact, conversations about holding government leaders accountable for downplaying or ignoring proven approaches to deal with the COVID-19 pandemic are already on their way. Last month, a Brazilian congressional panel recommended charging President Jair Bolsonaro for crimes against humanity over his government’s response to the pandemic.

The truth is, however, that in such circumstances the current international legal framework provides no answer. In fact, national governments are - in principle - entitled by virtue of their sovereignty to refuse assistance from abroad. This is why any discussion around the adoption of a new Pandemic Treaty must consider the intrinsic vulnerabilities of the international legal system and assess whether more profound changes are needed. Otherwise, the adoption of a Pandemic Treaty will fall short of its promises. The COVID-19 pandemic should serve as an awakening to recognize the flaws of the existing international legal framework.

To be sure, fixing the international legal framework to deal with these problems won’t be easy. An  international pandemic treaty could pave the way, but challenges will remain. Especially, when it comes to implementation and enforcement. Even if governments reach an agreement, anticipating possible future contingencies that may increase or reduce the benefits of treaty compliance may prove to be a difficult task. But it is a critical starting point.

Vaccine diplomacy has been one of the main obstacles to effectively controlling the COVID-19 pandemic. The current international law framework is insufficient to deal with governments that put geopolitical interests first in the midst of a global pandemic.

But change is possible. Out of the ashes of World War II, the international community joined efforts to bring the world together and rethink the international system. COVID-19 provides a new opportunity to address these issues. Let’s not waste it.

We need bolder leadership not just to mask new problems with old solutions but to seize this opportunity to overhaul the international legal framework to effectively deal with situations where pervasive geopolitical incentives take precedence over people’s health. Unless we do it, a Pandemic Treaty will be set to fail.