The Pandemic Instrument of the World Health Organization

The Pandemic Instrument of the World Health Organization

Introduction

The Covid-19 pandemic has put the world to a hold. Not only did international travelling become extremely difficult, also domestic businesses and, in fact, life in general became marked be restrictions, face masks and corona tests. And eventually, vaccines proved to be the cure against these restrictions, with Germany lifting all remaining ones by 7 April. Whether or not it was the vaccines that actually were the cure is of course not clear, but they, at least, helped the population to re-gain their normal lives (at least in the developed countries).

What appears clear, however, is the fact that a pandemic such as Covid-19 cannot happen again and that the world has an elevated interest in preventing future pandemics from happening. Since the international wildlife trade has long been suspected of facilitating the spread of the SARS-CoV-2 virus (see e.g. Sellheim Environmental, 2021), also the Convention on International Trade in Endangered Species of Wild Fauna and Flora (CITES) has incorporated Covid-19-related human health aspects in the form of preventing future pandemics into its work. Whether this goes beyond its own remit as being a wildlife conservation treaty is certainly subject to discussion.

Be that as it may, the main international body for the dealings with the prevention of future pandemics, on the one hand, and zoonotic diseases, on the other hand, are the World Health Organization (WHO) and the World Organisation for Animal Health (WOAH). Indeed, and it is especially the former, which is now taking measures to prevent the emergence of future pandemics by working on an international treaty on pandemic prevention, preparedness and response.

One Health in the zero draft of the pandemic instrument

In December 2021, the World Health Assembly, the governing body of the World Health Organization, held its second special session because of the raging pandemic. It was decided that it was time to negotiate an instrument that would prevent this from happening in the future. To this end, an international negotiating body (INB) was put in place the Bureau of which was tasked to produce the first text that would serve as a basis for all future negotiations. This so-called ‘zero draft‘ was published on 1 February 2023 for further consideration.

The zero draft is indeed a wide-ranging document. Encompassing 38 articles, it spans across 32 pages and has a Preamble comprising 49 recitals. Without the need to delve into each single article (after all, it is a zero draft and not an adopted treaty text. For a more detailed analysis, please refer to Friedman, Finch & Gostin, 2022), it is clear that the idea rests on the principle of equity between WHO member states, and on the idea of a One Health approach – an approach which takes into account human, animal, plant and environmental health.

This is already underlined in the Preamble. Recital 26 reaffirms “the importance of a One Health approach and the need for synergies between multisectoral and cross-sectoral collaboration at national, regional and international levels”. To achieve this, Recital 27 establishes the so-called ‘Quadripartite’, comprising the WHO, the Food and Agriculture Organization of the United Nations (FAO), the WOAH and the United Nations Environment Programme (UNEP).

Article 18 is fully devoted to the One Health approach, even holding such a title. This article stresses that most pandemics are of zoonotic origin, meaning that they jump from animal hosts to human hosts, which, ultimately, necessitates the One Health approach. To this end, the article requires the parties to identify pathogens with potential zoonotic character, especially at the interface between human, animal and environment ecosystems, but at the same time recognising their interdependence. Parties are furthermore required to address the (re-)emergence of pathogens at the human-animal-environment interface in their respective plans for preparedness, prevention and response, “including but not limited to climate change, land use change, wildlife trade, desertification and antimicrobial resistance” (Article 18.3).

The article further establishes synergies between “other existing relevant instruments that address the drivers of pandemics, such as climate change, biodiversity loss, ecosystem degradation and increased risks at the human-animal-environment interface due to human activities” (Article 18.5), including the Quadripartite. In order to ensure this synergy, parties are to build capacity by implementing and fostering action at the national and community levels, by developing One Health Action Plans, by enhancing surveillance, and by ensuring that the One Health approach is taken into account at “national, subnational and facility levels in order to produce science-based evidence, and support, facilitate and/or oversee the correct, evidence-based and risk-informed implementation of infection prevention and control” (Article 18.7 (e)).

A blind(ish) spot

What becomes quite obvious in the context of One Health is the focus on wildlife, or the interaction between humans, wild animals and wild ecosystems. While it is indeed so that with the increasing encroachment of humans on previously untouched lands new diseases start to emerge (e.g. Morand & Lajaunie, 2021), this does by not means mean that human expansion into forests and other ecosystems are the only or main cause for zoonotic disease emergence. This human-animal-ecosystem-interface, however, appears to be primarily paid attention to in the zero draft.

This is rather surprising since already recital 23 recognises that “most emerging infectious diseases originate in animals, including wildlife and domesticated animals, then spill over to people.” Also in Article 18, reference to domesticated animals is made twice. While that is so, the main focus appears to be on wild animals. This is surprising since at least as much devotion should have been put into the interplay between agriculture and zoonotic disease emergence. After all, “[s]ince 1940, an estimated 50% of zoonotic disease emergence has been associated with agriculture” (Hayek, 2022), having led not only to a human-animal-ecosystems, but rather to a wildlife–livestock–human interface (Hassell, et al., 2017).

A truly comprehensive treaty would have to pay significantly more attention to agriculture, especially since domesticated animals are considered the bearers of zoonotic disease potential. In that sense, it is, must be, agriculture which is considered on par with the international wildlife trade. The lower attention that is being paid to agriculture, however, is probably best exemplified by the occurrence of the term in the text: it only appears once throughout the document – in the context of the Food and Agriculture Organization of the United Nations in Recital 27.

The Pandemic Instrument Partner and Stakeholder Engagement Forum

The Canadian government is a key player in the drafting and negotiation process of the Pandemic Instrument. To this end, Sellheim Environmental, as part of the delegation of IWMC-World Conservation Trust participated in the Pandemic Instrument Partner and Stakeholder Engagement Forum in Ottawa, 21-22 March 2023. The forum was held on-site and online, with IWMC’s President Eugene Lapointe attending on-site and Dr Nikolas Sellheim attending online.

Eugene Lapointe summarises the meeting as follows:

• It became obvious at the onset of the Forum that it was poorly prepared and
  presented. Involved in the presentations were strictly medical doctors, university
  professors dealing with pandemic preparedness and senior politicians, government
  officials involved with health issues. No international law experts or diplomatic
  representatives participated.
• There was no list of the actual participants invited.
• The zero draft of the proposed Treaty was obviously prepared by individuals having no
  knowledge of Treaty requirements. It is incredibly long (32 pages) and the preamble
  itself includes 49 paragraphs.
• The main Forum was divided into several small working groups, which had to answer
  questions -quite a few of them irrelevant to the development of an international
  Treaty.
• Most of the participants we had contact with were unaware that a Treaty does not
  deal with people but with nations and it is at the national level -through a national
  implementing legislation- that direct concerns about people are being addressed.
• One university professor presenting the notion “One Health” used the example of
  human beings transmitting diseases to deer and the same deer retransmitting the
  same disease to other human beings. For her, the notion of “One Health” includes
  physical and mental health of animals, biodiversity and human beings. When
  questioned the relationship between human beings and domestic animals, she
  simply ignored the question.

Whose interests are in the document?

While there is certainly a lot to criticise about the zero draft of the Pandemic Instrument, it furthermore is rather unclear who the drafters of the document are and whose interests they represent. As Politico and Welt unveiled in September 2022 (Banco, Furlong & Pfahler, 2022), there are indeed some organisations, which exercise tremendous influence on governments and the WHO, simply because of their financial standing. In this special report, the journalists describe and examine the influence of four NGOs – the Bill & Melinda Gates Foundation, Gavi – the Vaccine Network, the Wellcome Trust, and the Coalition for Epidemic Preparedness Innovations (CEPI) – on the way tests, vaccines and monies were distributed throughout the world, especially concerning developing countries.

Two essential claims underpin the report. First, it remains fully unclear where monies that these NGOs were provided with actually went. Second, the influence of these NGOs is on equal footing (if not above) with that of WHO member states, despite an inherently undemocratic setting. This means, while the monies for vaccines and tests actually led to the distribution of these, lack of transparency and oversight led to a missing of set goals by far, leaving billions of US dollars unaccounted for.

At the same time, the four organisations invested around 10 billion US dollars in COVID-19-related initiatives, especially lobbying efforts in regard to vaccine development and science, and the development of local health systems in developing countries. Where the money has gone and why these organisations have taken over the tasks of nation states cannot be ascertained.

“These big men of global health and how they … captured the agenda and managed to influence what people are thinking around pandemic preparedness and response – I think that’s really important [to consider],” Sophie Harman, a professor at Queen Mary University of London is quoted. Taking also into account that the four organisations have donated 1,4 billion US dollars to the WHO and an additional 170 million US dollars for Covid-related activities is of course not proof of their influence on the Pandemic Instrument, but it nevertheless buys them an important seat at the table.

As the report furthermore indicates, it is especially the Bill Gates Foundation which has opposed the waiving of intellectual property rights concerning the development of vaccines – during a time when the world needed vaccines the most. The Pandemic Instrument also considers intellectual property issues. In four recitals, the zero draft essentially repeats that “protection of intellectual property rights is important for the development of new medicines, and also recognizing concerns about the negative effects on” a number of different elements. At the same time, Recital 43 makes clear that intellectual property rights pose “threats and barriers to the full realization of the right to health and to scientific progress for all.” This stands in stark contrast to the approach by Gates et al.

An arising issue that is now arising relates to the damages to health caused by Covid-19 vaccines. In Germany, the number of applications to have damages to health caused by Covid-19 vaccines recognised is very low, but nevertheless existent (e.g. SpiegelOnline, 2023). Also the zero draft of the Pandemic Instrument recognises “injuries resulting from pandemic vaccines” and calls for a global compensation mechanism to address these (Article 9.5). But moreover, it also contains a rather cryptic clause, which reads: “Pending establishment of such global compensation mechanism, each Party shall, in contracts for the supply or purchase of pandemic-related products, endeavour to exclude buyer/recipient indemnity clauses of indefinite or excessive duration” (Article 9.6).

This clause only appears to make sense when taking a closer look at the so-called Advance Purchase Agreements (APAs) between the European Commission (EC) and vaccine producers such as BioNTech-Pfizer. Under Article I.12.1 of the APA between the EC and BioNTech (EC, 2020), it is stipulated:

“The Commission, on behalf of the Participating Member States, declares that the use of Vaccines produced under this APA will happen under epidemic conditions requiring such use, and that the administration of Vaccines will therefore be conducted under the sole responsibility of the Participating Member States. Hence, each Participating Member State shall indemnify and hold harmless the Contractor, their Affiliates, sub- contractors, licensors and sub-licensees, and officers, directors, employees and other agents and representatives of each (together, the “Indemnified Persons”) from and against any and all liabilities incurred […].”

This means that if damages to health have occurred, the vaccine producer cannot be held accountable, but instead it is the respective EU member state which is to indemnify the damaged person. As the German public TV station ZDF has demonstrated, this is causing significant difficulties, since given this state responsibility, the state is reluctant to recognise vaccine damages (ZDF, 2023).

Against this backdrop, the Pandemic Instrument and the requirement to remove indemnity clauses makes sense and appears to be much more in the interests of those damaged than the interest of the respective party. Whether this will actually stand the test of time remains to be seen. Especially with regard to the fact that the zero draft does not allow for any reservations or exceptions (Article 25), a rather unusual provision in such a potentially important and global treaty.

Conclusion

The above has shown that the zero draft of the Pandemic Instrument is truly ambitious, but, at least from the perspective of livelihoods and conservation, neglects an important element which is crucial for pandemic prevention: the role of agriculture and domesticated animals. Instead, the One Health approach focuses on wildlife and the human-animal-environment-nexus, which needs to be complemented by a wildlife–livestock–human interface.

The role of NGOs, first and foremost those identified by Banco, Furlong & Pfahler (2022) make the instrument ambiguous, to say the least, even though it does include elements which are truly in the interests of the people, for instance those having experienced damages because of Covid-19 vaccines. Unfortunately, the Stakeholder Engagement Forum in Ottawa did not shed more light on the issue, but was more cause for raising eyebrows.

Whether the Pandemic Instrument will ever enter into force remains to be seen. First, the zero draft needs to be developed into a proper draft, which then needs to be ratified by at least 30 states before it enters into force (Article 34). If the breadth of the document is not reduced significantly, it remains questionable if it even ever reaches the state of being seriously tabled for adoption.

References

Banco, E., A. Furlong & L. Pfahler. (2022). How Bill Gates and partners used their clout to control the global Covid response — with little oversight. Politico, 14 September 2022. https://www.politico.com/news/2022/09/14/global-covid-pandemic-response-bill-gates-partners-00053969.

EC. (2020). ADVANCE PURCHASE AGREEMENT (“APA”) for the development, production, priority-purchasing options and supply of a successful COVID-19 vaccine for EU Member States. SANTE/2020/C3/043 – S12.838335.

Friedman, E.A., A. Finch & L.O. Gostin. (2022). Pandemic Treaty: The Conceptual Zero Draft. https://oneill.law.georgetown.edu/pandemic-treaty-the-conceptual-zero-draft/.

Hassell, J.M., M Begon, M.J. Ward &  E.M. Fèvre. (2017). Urbanization and Disease Emergence: Dynamics at the Wildlife–Livestock–Human Interface. Trends in Ecology & Evolution 32(1), pp. 55–67.

Hayek, M.N. (2022). The infectious disease trap of animal agriculture. Scientific Advances 8(44). DOI: 10.1126/sciadv.add6681.

Morand, S. & C. Lajaunie. (2021). Outbreaks of Vector-Borne and Zoonotic Diseases Are Associated With Changes in Forest Cover and Oil Palm Expansion at Global Scale. Frontiers in Veterinary Science 8. https://doi.org/10.3389/fvets.2021.661063.

Sellheim Environmental. (2021). The blurry role of pangolins in the Covid-19 pandemic. An update. https://sellheimenvironmental.org/2021/12/28/the-blurry-role-of-pangolins-in-the-covid-19-pandemic-an-update-to-international-wildlife-trade-and-the-covid-19-pandemic/.

SpiegelOnline. (2023). Was die 253 anerkannten Impfschäden bedeuten. SpiegelOnline, 30 January 2023. https://www.spiegel.de/wissenschaft/corona-was-die-253-anerkannten-impfschaeden-bedeuten-a-6b72e388-9304-46f9-89e2-944f00393600.

ZDF. (2023). Das Leid der Covid-Impfgeschädigten. 10 March 2023. https://www.zdf.de/nachrichten/video/corona-impfung-nebenwirkungen-impfschaden-video-100.html.