The U.S., Sovereignty and the Pandemic Treaty

Will a new treaty and more chipping away at U.S. sovereignty reform China's behavior?

The United Nations was chartered in 1945 to prevent the “scourge of war”¹ occuring again in the world, and it has grown to mean that support should be given to prevent creating conditions that give rise to the “scourge of war,” including world health. Thus, the World Health Organization was formed in 1948, just three years after the United Nations, and immediately set to work on managing cholera outbreaks and the spread of tuberculosis.² The World Health Organization then began to interpret its constitutional mission to include health, both mental and physical and well-being, all of which sounds great, but to participate, every nation must agree to be bound by decisions of the United Nations, which by definition means each nation gives up some small bit of its sovereignty, presumptively for the greater good.

How the WHO manages global health

The World Health Organization already had in place, the International Health Regulations (2005) a new version of the 1969 International Health Regulations with an entirely new approach to global public health, in part, inspired to completion by the SARS outbreak in China in 2003. This new international agreement among its articles placed obligations on nation states to bolster their domestic laws and health infrastructure, created guidelines on travel, quarantine and isolation and set obligations for nation-states to report within 24 hours of government notice to WHO when a public health emergency of international concern (PHEIC) might be presenting in their nation.³ A PHEIC could be the first notice of a cluster of illnesses or an unusual outbreak, to be determined by an algorithmic analysis defined by the IHR.

But it is not always known when a nation-state makes a report to WHO about a possible PHEIC. (Parties other than the official nation-state contact can make a report to WHO triggering a determination of a PHEIC, also.) The WHO agrees to confidentiality to a country reporting a PHEIC until WHO determines it can be announced to the world if there is a reason to do that. So it was not until January 30, 2020 that WHO declared COVID-19 was a PHEIC, but not until 18 countries in addition to China had cases and deaths.⁴ Many saw this as a failure of WHO and the IHR to function to warn the world soon enough.

To make matters worse, China did not invite WHO to come and help investigate the origin of the outbreak and to identify patient zero, which would have been the normal protocol. Because of sovereignty, WHO cannot invite themselves to investigate but must wait to be invited by the reporting nation-state. Since WHO cannot invite themselves in, often diplomacy is required on the part of the WHO to enter the country and investigate. Unfortunately, so much time was lost by China’s strategic delays pandemic evidence was destroyed⁵ or lost in that critical window of opportunity to investigate. Efforts to investigate the origin of COVID-19 have continued by WHO as well as the United States Congress.

So the need to strengthen pandemic preparedness and responses was again, inspired by China’s behavior, as it was after the 2003 SARS outbreak in China and China’s failure to be transparent. Although in my opinion, China was compliant with reporting to WHO in a more timely manner than they did with the SARS outbreak in 2003, it was still based on when China claims they discovered the outbreak was a possible PHEIC. By the time WHO declared a PHEIC 7700 cases had been recorded and 170 people had died in China,⁶ China refused to provide a genetic profile of the virus, and no patient zero was ever disclosed to WHO. So will one more treaty change China’s behavior if/when the next pandemic arises within their borders? Or will the rest of the world accept more global governance and give up a bit more of sovereignty, in the misplaced hope that China will become compliant with heightened treaty obligations?

Legal authorities for the pandemic treaty

The World Health Organization, an intergovernmental organization of nation-sates under the United Nations charter, passed a resolution in May 2020 during the 73rd World Health Assembly. The resolution was to cooperatively develop a report on the WHO response to COVID-19 and how to improve it,⁷ and the U.S. excepted itself from several paragraphs including those dealing with forced patent sharing broader than the COVID19 pandemic needs, and providing access to abortion.⁸ WHO resolution that established a working group to develop the draft pandemic treaty. The resolution was adopted during the 73rd World Health Assembly held in May 2020 and is titled "COVID-19 Response." It called for the WHO Director-General to initiate, in consultation with Member States and other stakeholders, a process of consultation to review the experience gained and lessons learned from the response to the COVID-19 pandemic and to develop a report.

The United Nations later passes an omnibus resolution that called for using the United Nations to convene member states to develop a framework to address socio-economic needs in the COVID-19 pandemic.⁹

The resolution specifically called for the development of a comprehensive and co-ordinated global response to the COVID-19 pandemic, including by strengthening preparedness for future pandemics through the development of a draft global framework for the control of outbreaks and epidemics. It also led to the establishment of a working group to support the development of the framework and to report back to the 74th World Health Assembly in 2021.

The working group, consisting of representatives from Member States and other stakeholders, was established in August 2020 and tasked with developing the draft pandemic treaty. The group held several meetings and consultations, and the draft treaty was presented to the 74th World Health Assembly in May 2021.

February 2023, the World Health Assembly (WHA), the general voting body made of the member-states of the WHO, will decide on the content of the Pandemic Treaty.

Sovereignty

I have served on official government treaty negotiating delegations and had the honor of leading one of them. As an academic, I have served as an expert for the UN Biological Weapons Convention, and provided testimony on three National Academies committees on the safety of dangerous pathogens research and U.S. regulation. So I have to begin this section by saying, the United States is almost always the nation that objects to infringements of their sovereignty. China and Russia may agree to any number of terms, and then promptly ignore their committments, but the U.S. is up front about objecting to infringements of sovereignty and excepts us from agreeing to terms in treaties that go too far in that regard. (Procedurally, a nation-state can sign a treaty, but “opt-out” of specific provisions that do not comport with their national laws or policies.)

The Pandemic Treaty will include obligations to do the things China failed to do, including agree to provide the genetic sequence of the virus in your country should you have a PHEIC, to report immediately to WHO of any potential PHEIC.

The Pandemic Treaty, also known as the Framework Convention on Pandemic Preparedness and Response, would establish a framework for international cooperation and coordination in pandemic preparedness and response, including the sharing of information, resources, and best practices.

The Pandemic Treaty would require member nation-states to agree to obligations to share information about outbreaks and to allow international inspectors to visit their laboratories and research facilities. This means that a country must follow a uniform protocol for managing an outbreak rather than responses that are culturally or specifically tailored to that nation-state’s way of self-governance as a sovereign nation.

The global threat of pandemics means that ultimately giving up a small bit of sovereignty in order to save lives is a benefit that outweighs these small restrictions on sovereignty. But the very reason that these new obligations are being created is because of repeated behaviors of China that have harmed global public health.

Rather than creating new obligations for the rest of the world, would it not be more to the point to sanction China for the damages to the world for being uncooperative and failing in its obligations in international law not to cause harm to other countries. Instead, the WHO decided to drop its investigation into the origins of COVID-19 in China.¹⁰

In January 2023, the IHR Review Committee met to consider revisions to the IHR 2005, planned for completion in 2024. The IHR will amend the current obligation to report to WHO within 24 hours of assessing an extraordinary event is a potential PHEIC, by adding that the nation-state make an assessment of a PHEIC within 48 hours of it being reported to the “focal point” which is the designated national official responsible for reporting to the WHO. (In the U.S., the focal point is the Scretary of the Dept of Health and Human Services). Regarding the COVID-19 originaly outbreak China could have been in compliance with the current IHR by simply claiming they had never known or been officially notified of the extraordinary outbreak going on in their country, but then report it within 24 hours of assessing it was a PHEIC when they decided they would know about it. Will this new obligation press China into compliance by requiring action upon learning about an outbreak within 48 hours? It does seem clear that more than imposing a new deadline in the regulations will be required to compel China to disclose anything before they are ready to do so.

And what if China fails to comply with these obligations? Nothing in the IHR provides for penalties or sanctions for failure to comply, so the unintended consequence of imposing more obligations on the rest of the world is allowing China to go unpunished for more of the same behaviors almost guaranteed to continue.

Globally, we have a Biological Weapons Convention administered from the Office of Disarmament Affairs in the United Nations; we have a Pandemic Treaty within the WHO, as well as the International Health Regulations administered by WHO.

While all of these international obligations chip away at sovereignty, the benefit might exceed the cost if it actually prevented the next pandemic. But will it do anything to ensure China’s compliance with these increased obligations to cooperate and share information and allow inspections?

1. https://www.un.org/en/about-us/un-charter/preamble

2. https://www.thelancet.com/pdfs/journals/lancet/PIIS0140-6736(02)11244-X.pdf

3. https://www.who.int/publications/i/item/9789241580410

4. https://www.paho.org/en/news/30-1-2020-who-declares-public-health-emergency-novel-coronavirus

5. U.S. House Report on COVID-19, May 2021, p. 11 at https://intelligence.house.gov/uploadedfiles/covid-19_and_the_wuhan_institute_of_virology_19_may_2021.pdf.

6. https://www.paho.org/en/news/30-1-2020-who-declares-public-health-emergency-novel-coronavirus

7. https://apps.who.int/gb/ebwha/pdf_files/WHA73/A73_R1-en.pdf

8. https://geneva.usmission.gov/2020/05/19/explanation-of-position-covid-19-response-resolution/

9. https://www.un.org/pga/74/wp-content/uploads/sites/99/2020/09/Omnibus_Final-clean.pdf

10. https://www.nature.com/articles/d41586-023-00283-y