The International Health Law After COVID-19 and the Pandemic Treaty

Since the outbreak of COVID-19, the process of considering a treaty for pandemic prevention, preparedness, and response has been entirely led by World Health Organization (WHO) member states. To overcome the fundamental limitations of the International Health Regulations (2005) (IHR 2005) system, it is possible to consider a more comprehensive revision of the IHR, perhaps even more drastic than the 2005 revision. Alternatively, a new fundamental and comprehensive treaty for pandemic response could be considered, independent of any revision of the IHR. The WHO and its member states have chosen the latter option and are now pursuing a two-track legislative process to adopt a new pandemic treaty in parallel with some revisions to the IHR. This article examines the international community's efforts to improve international health law for pandemic prevention, preparedness, and response in the wake of the COVID-19 pandemic. To do so, it first examines the failures of international health rules and lessons learned from COVID-19, and then analyzes the progress of the WHO's Member States in revising IHR and negotiating a draft pandemic treaty, as well as the differences in legal basis articles under the WHO’s Constitution. The IHR have not responded effectively to the COVID-19 pandemic, and as Report of the Review Committee on the Functioning of the IHR during the COVID-19 response, revision of the Regulations seems inevitable. However, IHR revision alone are not enought to address the problems that have arisen during the pandemic. While a major revision of the IHR could be considered, it would be more difficult to incorporate new legislation into the existing framework of the IHR to create a harmonized and unified normative framework than to create a new treaty. Furthermore, maintaining the form of the Rules in Article 21 is not the best option, despite the fact that the WHO’s Constitution authorizes the Organization to enter into “conventions or agreements” under Article 19. In this regard, amending the International Health Regulations and creating a new pandemic treaty at the same time is the most effective legislative approach in the current context to prevent, prepare for, and respond to diseases that could cause an international health crisis. This article reviews the highlights of ｢the Zero Draft of the WHO convention, agreement or other international instrument on pandemic prevention, preparedness and response (“WHO CA+”)｣, published in February 2023, for consideration by the Intergovernmental Negotiating Body (INB). The Zero Draft provides a framework for legal regulation at all levels of the pandemic response and is extensive in its substantive content. The Zero Draft emphasizes equity at all levels and provides concrete measures to achieve it. It covers and documents many issues relevant to pandemic governance, from crisis-resilient health systems and a strong health workforce to measures related to one health and antibiotic resistance, health literacy, and even social determinants of health. The Zero Draft is completely open-ended, meaning that it could change over the course of future negotiations, but it is unlikely to change much in terms of the main content that will be included in a pandemic treaty.