Emma Ross
Good afternoon, and thank you for joining us again for this session of the Chatham House COVID-19 webinar series with our Distinguished Fellow, Professor David Heymann. In light of the governance failures of the pandemic, at the end of last year, countries agreed at the annual meeting of member states of the World Health Organization to launch a process to draft and negotiate a pandemic treaty, convention, or some kind of international agreement that aims to protect us better the next time from pandemics.
The aim is to get political commitment to help security compliance between governments, calling for global collaboration, co-operation and solidarity. That process is now underway through an intergovernmental negotiating body and various stakeholders are in swing to inform or influence, or both, that process when it comes to everything from what it should and shouldn’t cover to whether or not it should be a legally binding agreement. It’s all for the taking at the moment, and today we’re going to be talking about the prospects for ending up with a meaningful agreement.
Joining David and me to delve into some of the key issues around this are two leading analysts and key opinion-leaders on this topic, Ilona Kickbusch and David Fidler. Ilona is a global health governance and geopolitics expert with the Graduate Institute in Geneva, and David is an expert in international law and global health at the Council on Foreign Relations.
But before we launch in, I just need to remind everyone of the housekeeping stuff. The briefing is on the record and you can ask questions throughout the session by writing them into the Q&A function on Zoom. Please do upvote other people’s questions that you’re keen on, as those tend to get more of a chance of being asked.
So, welcome, Ilona and David, we’re so excited to have you with us today. There are so many issues to unpack here, and so many ways these negotiations could go. I’m going to start with an opening question, this is to all of you but I’ll start with David Heymann first, and that is, do we need a treaty, agreement, convention or whatever it’s going to be? I’ll get on to the prospects for getting one later, but for now, do we need this? I mean, we have the International Health Regulations for governing preparedness and response to these events. Are they not good enough, or do they not cover all the aspects we want to cover? Why are we adding another layer rather than tweaking them, what we already have? So, David Heymann, do we need this?
Professor David Heymann
Thanks, Emma. Yes, we do need some kind of a mechanism that will help people work better together in the future. We have the International Health Regulations, which call attention to the importance of strengthening national capacity in public health in order to deal with pandemics, and what we’ve seen is that the donor agencies and the countries that are normally providing support to lower and middle-income countries have not provided support to those countries to strengthen that capacity.
The only way that we can be sure that there will be rapid response to outbreaks that could become pandemics is for countries to develop the capacity to detect and respond where it occurs, so that’s number one. We need a focus on countries, not a focus on a global mechanism to respond to outbreaks. Countries need to do that themselves. There needs to be a global safety net to respond if countries can’t do it.
Second, there needs to be sharing of data globally, and we’ve done not bad in this pandemic. Early on, the Chinese rapidly shared the sequence information, which permitted many countries to begin rapidly responding to the outbreak. However, there have been political issues around data sharing, there have been many other issues, because there’s no clear framework as to what should be shared and how it should be shared.
So, the second thing, in addition to focus on countries, is something that would make sure that there’s data sharing globally and that everybody understands what that means. And third and last is there needs to be a more equitable distribution of goods, not only goods necessary for responding to pandemics, such as equitable distribution of vaccines, medications, diagnostic tests, but also an equitable distribution of the goods necessary to become prepared, and that’s where a global treaty could be working, in those three areas, from what I see.
But I’m not the expert, Ilona is the expert on treaties, and I think – Emma, I think you should turn to her next, so, thank you.
Emma Ross
Thanks, David. So, Ilona, do we need this? You’re muted, so please unmute. Oh, unmute. Ilona.
Professor Ilona Kickbusch
I’m – first of all, let me say, yes, I am a firm supporter of a process for a treaty. More specifically, I’m in favour of a process for a framework convention at the World Health Organization, and that’s already an important differentiation, because a treaty you could theoretically negotiate anywhere, and some people have suggested that such a negotiation, for example, should be at the United Nations and not at the World Health Organization.
So, I am, yes, for a framework convention, a framework convention negotiated under the auspices of the World Health Organization, for a number of reasons, also because it will make clear again that the WHO is not a development agency. It is not a purely operational agency, for example, in the pandemic arena, it is a norm-setting agency, it is an agency that can set treaties, and I think this is absolutely critical in the overall governance, global health governance, that we’re looking at.
I think over the last couple of years we’ve had a whole range of suggestions, what should be improved in the governance processes, in the – as some people call it, the global health architecture, etc., and I would see a treaty as one possibility to actually integrate some of these issues into such a framework convention.
If you think of the suggestions around what should actually be triggered when we have a pandemic, and that in itself is one of the arguments, the International Health Regulations call a pandemic – do not call a pandemic. They draw attention to a PHEIC, a Public Health Emergency of International Concern, which is a warning, it’s not a declaration this is a pandemic.
So, one of the issues is, what happens when we – first of all, before a pandemic, because the IHR doesn’t take care of a – on a lot of that, but also when we have a pandemic, what would it trigger, what financial mechanisms, and also what political mechanisms? Think of the suggestion for a global health threats council. Would that come into place, you know, the minute we say, “Yes, we have a pandemic,” and certain suggestions need to be taken up, and certain decisions need to be taken?
So, that integrated notion, I think, is a very important one; the trigger notion is important, and of course a treaty would look far beyond health only. The IHR is relatively concentrated on health agency in the wider sense of the word, and of course, you know, the calls for One Health and many of those things to be part of the treaty, the framework convention, indicates that the treaty will have to look beyond health, will have to look at multisectorality.
Last point from my side, we need more accountability in the system, we need more transparency, and there are, you know, strong voices that say a treaty must give additional argument, additional strength, additional pressure for transparency, and for accountability. There are various things, I’m sure we’ll talk about those, that are possible, but those are some of my arguments why, yes, we should have a treaty.
But, let me underline, I am talking about a pandemic treaty, a pandemic framework convention. I am not talking about a global health framework convention, I am not talking about a Christmas tree. Thank you.
Emma Ross
A Christmas tree, and by that you mean the kitchen sink, a huge bucket of all the asks for global health.
Professor Ilona Kickbusch
Exactly. You know, we Germans invented Christmas, so we tend to talk about Christmas trees.
Emma Ross
Thank you, Ilona. So, David Fidler, what’s your take on, do we need this?
David Fidler
I think there’s no question, given what’s happened with the pandemic and the devastating impact on what we had in place for global health governance, the global health architecture, the international health regulations, that at – some strategic attention, well, a great deal of strategic attention is needed for global health governance reform. And one of the things that concerns me about the discussions around the pandemic treaty is the scale and the depth of the damage done to global health governance by the pandemic means that one instrument is not going to fix the problem.
And I think there’s too much emphasis on a pandemic treaty or even a non-binding pandemic instrument as being the silver bullet for the problems in global health governance. I think we face three strategic problems coming out of the pandemic. One has to do with the relationship between health and security. This was obviously a part of global health governance discourse before the pandemic, but I think the pandemic has shaken up those conversations about what is that relationship between health, pandemics and national security.
The second is capability. I think this – David Heymann mentioned this in terms of building capacities. I think the pandemic has shown that we need new capabilities in the global health architecture that we need to build.
Third is solidarity. The pandemic has obviously revealed many problems in connection with how we think about solidarity, how we define solidarity and how we achieve this. That security, capability and solidarity, sort of trifecta, if you will, means that global health governance reform is going to have to take place in many different contexts, many different venues, and cannot be captured by a single instrument. This is something I’ve talked about as something, as a pandemic concert rather than one pandemic treaty or one pandemic instrument that’s necessary.
That strategy also reflects the way in which global health governance reform took place back in the golden age of global health, where treaties weren’t necessarily the centrepiece of how we made progress in global health, so I think we’re going to see a need for far more than one instrument that may be coming out of the INB in order to get to a better place.
Emma Ross
But do you think a pandemic treaty is a good idea, David?
David Fidler
No, I don’t, and the – my reasoning with regards to that has more to do with the political – my – the – a political analysis of whether or not a treaty can be something that will help us make progress in the present context. That is something that has changed dramatically since the IHR, for example, was revised in 2005, the – both the domestic and the international political contexts have transformed dramatically and for the worse since the Framework Convention on Tobacco Control was adopted at about the same time.
So, my analysis with regards to the pandemic treaty has more to do with politics than it does with differentiating between, say, a binding and a non-binding agreement.
Emma Ross
So, what are the substantive politics that you’re worried about that might – that means this may not be a good idea?
David Fidler
Well, when we think back to when we did international – we used international legal instruments in very innovative and creative ways – and again I’ll reference the International Health Regulations and the FCTC, back in the first decade of this century – at that period of time there was no balance of power, there was no geopolitics, the United States and the Western democracies were unrivalled in a geopolitical sense. Our main military adversaries at that time were terrorists, we were not in military conflict or competition with China and Russia. Democracy was in the ascendancy at that particular point in time, enthusiasm about the internet and what it could bring to global health, environment, human rights was on the rise.
Globalisation wasn’t necessarily loved everywhere on the planet but it was being embraced as a way to bring economies, countries, nations closer together. It was a very different time in world history and those political conditions enabled a lot of creativity, not just in global health but across many policy areas, and that’s the era, that post-Cold War era, early post-Cold War period, was where we saw lots of global governance innovations happening, not just in health but in environment, in human rights and in trade.
If we fast-forward to today, all of those enabling conditions that made those international legal reforms and other exciting, innovative global health governance projects, whether that was PEPFAR, the Global Fund, the MDGs, those enabling conditions are completely gone. Authoritarianism is on the rise today, the democracies who were considered global health leaders behaved very badly during this pandemic. We have geopolitics with a vengeance now between United States, Russia and China.
This was even before the war in Ukraine. Domestic politics, particularly in democracies, has turned more inward-looking, not outward-looking, and so we have a political situation, both domestically and internationally, that is very bad for enabling any type of international agreement, particularly a binding agreement, that can make the type of progress that I think we need in global health governance today.
Emma Ross
Okay, fair enough, thanks. That sounds pretty pessimistic. I just…
Professor David Heymann
Emma, let me come in on this…
Emma Ross
Yeah, go ahead, David.
Professor David Heymann
…just a bit, because I do want to put in some optimism. You know, smallpox was eradicated between 1967 and 1980, and during that period of time there was an intense Cold War that was going on, yet everybody worked together, every country worked together through the World Health Organization, to accomplish a common goal and smallpox was eradicated.
Now, that was a different period, there were many billions of people less at that time, but still the fact remains that things are possible when there’s political tension, but it just takes a lot of goodwill and a lot of justification of what needs to be done. So, I agree that we’re in a very serious state, as David has said, but that there are some precedents in the past that showed that even when there are very intense geopolitical discussions and differences, accomplishments can be made in health.
Professor Ilona Kickbusch
If I follow up on that, Emma, if I could…
Emma Ross
Yeah, go on.
Professor Ilona Kickbusch
I think, you know, to – first of all, I’d like to agree with David in saying…
Emma Ross
Which David?
Professor Ilona Kickbusch
…whatever we do, you know, treaty or whatever, the – it has to be focused, it cannot be an instrument that we think it resolves all issues related to pandemics and things that go with it. I think that’s absolutely critical, point one. Related to that, there is a major paper which will be presented to the World Health Assembly, I think it’ll go public in about two weeks, that the member states have asked WHO to work on, which actually goes in the direction that David said. That is a proposal for a larger revision, let me call it that, of the global health architecture, that’s still in the title, of which the treaty is only one component.
It needs, you know, new elements of co-operation, it needs reform within WHO, it needs, you know, the taking up of a number of the proposals of the various committees and commissions that have – and it needs a major, major chunk on financing which, for example, has been discussed in the G20, etc., etc.
So, yes, we need a much larger way of going forward, and part of the discussion has also been to go in the direction of the kind of thinking that we also know over the last couple of years from Anne-Marie Slaughter, which is, you know, a much more open global system that allows for more agility, particularly where there is that extreme geopolitical division.
So, I think that’s one thing that is necessary, and anybody that wants everything from this treaty is going down the wrong road, because then it will definitely fail, because we cannot get everything, and the most difficult discussion of the INB is going to be to clarify that. Maybe some of you were part of this innovation that WHO actually did a couple of weeks ago online. Anybody who wanted to comment on the treaty and the process was able to do so with a two-minute statement. I don’t know how many of you watched this. I mean, everything under the sun was being put forward, including the issues, Emma, that you raised about, you know, this being a form of world government we don’t want and all of that, so I think that’s the one thing.
The other thing is my comment on what David Heymann said, and that is – and we have, you know, examples. We know why the League of Nations failed and the Health Office of the League of Nations, etc., because countries couldn’t talk to each other anymore and because there was a World War. Also we tend to forget that some of the areas we, sort of, seem to think back as the good old days actually were full of war. I mean, I was on the streets against the Vietnam War and we, sort of, tend to forget, you know, that that was going on while certain forms of health co-operation were also going on.
And one of the key issues we face right now, if we give up on one of the last multilateral bodies and mechanisms that actually allow countries to talk to each other on health and work together on health, then we’re going to be in a really, really dire situation. And one of the reasons I think it’s important that the INB got off the ground is that it keeps countries talking, and we cannot give up on, you know, some of the basic multilateralism on health.
And my last point is, you know, when did we negotiate the IHR and the framework convention? We negotiated it exactly during the time when the new health bodies were also created. You know, that was when the Global Fund started, Gavi started, all these things started, and at the same time Dr Brundtland, who was the Director-General at that time, said, “Yes, all those agencies are moving forward, we need to make clear what this organisation, WHO, is about, it’s about norms and it’s about standards and we’ll try and push those forward.” And anyone who was part of the IHR negotiations will know how difficult they were, particularly around issues of traditional security, Kaliningrad corridors and whatever, you know.
It is a special geopolitical situation but I don’t think, you know, that we haven’t been in tough times before, so I’ll leave it at that.
Emma Ross
Okay. David Heymann, did you want to come in with anything? Otherwise I was going to ask you…
David Fidler
Emma, can I chime in just briefly?
Emma Ross
Yeah.
David Fidler
One of the most interesting things about the times that we live in today is we’re looking back to the period of the Cold War to try to find some guidance with regards to how international health co-operation should happen. David’s given an example of the smallpox eradication campaign. Certainly WHO operated and achieved more than smallpox eradication during the Cold War.
But keep in mind as a matter of international politics, during that period of time international health was not important and it didn’t really play any role in how the major forces of world politics operated. We thought we got to a different place in the post-Cold-War period by making health more politically important both domestically and internationally, and the pandemic, I think, was – schooled us a little bit in how we didn’t achieve what we thought we did.
I’m not sure the Cold War provides many analogies for us to think about how we’re going to make progress in this new context, which in my own view is – for health, at any rate, is far worse than anything that we saw during the Cold War. I mean, keep in mind the United States has accused both China and Russia of genocide. I mean, this is a context which is very nasty, it’s ugly, it’s very difficult to talk about anything, let alone health in this context.
I encourage those historical analogies, I’m just not sure how much they provide us traction with moving forward in this new context.
Professor Ilona Kickbusch
Well, I think, you know, the destruction of the League of Nations is something that does provide us some guidance, because it was incredibly tragic and we had the Third – the Second World War following, and, you know, I think we don’t want to follow that example with a Third World War.
Emma Ross
Okay, I’m going to move on to how difficult or easy you guys think it’s going to be to negotiate this, to get through. David Heymann, what are you hearing about who the backers are, who the detractors are and what the sticking points are likely to be?
Professor David Heymann
You know what? We’re not hearing much about that actually, but what I do know is that the world has changed. When the IHR were first negotiated in 1969, WHO had exclusive rights to information from countries, and for the four diseases that were covered, WHO did the risk assessment and then countries followed what WHO recommended.
Today, in the current pandemic, there is so much information available in medical journals, in front of the paywall, real-time data, that countries are using themselves to do their own risk assessments and their risk mitigation and risk response, and therefore WHO may no longer be needed for that function. This is a function that countries have taken over. Maybe WHO needs to give a blueprint to countries, but not continue to try to do some of the things that it’s done in the past, and move ahead in a new framework, such as Ilona’s talking about, in a treaty which has its advocates and which has people against it.
But a framework convention is really a very useful tool because you can begin to negotiate it by adding what you know is effective and works, and then you can add to that as time goes on, as more evidence becomes available. So, I think what is being proposed is – a framework convention is the right way forward. Whether or not that replaces the International Health Regulations or whether it just amplifies what they’re doing is not clear to me at present, but some have said that the International Health Regulations are a vestige of the past, and that we need to move on and take charge of things in a different way and let countries do their own risk assessment and response, including their guidance for countries, and let WHO provide the blueprint so that they can do that themselves.
Emma Ross
Yeah, I wanted to come on to the IHR. David Fidler, the Americans have proposed a rather fulsome look at the IHR and opening that up and reforming it. Why are they doing that, A, and B, do you think that opening up the IHR, maybe at the same time that we’re negotiating this pandemic instrument, would make it harder to negotiate a treaty, could it split the attention, could we end up with less and a delegitimised existing instrument as well as a failed treaty negotiation, or am I catastrophising a bit here?
David Fidler
Well, the US proposal falls under, sort of – there was this idea of, sort of, two tracks running, one, the INB negotiations for some type of new instrument, agreement, possibly a treaty, as well as a second track, the revision of the International Health Regulations, because enough countries were concerned about the IHR’s implementation, how it operated during the pandemic, that some countries like the United States wanted changes to that. So, it would – it’s in the spirit at least of that dual-track reforms for global health governance, IHR revision, as well as potentially creating a new instrument.
The concerns about that two-track process continuing productively, there’re problems on both sides. On the IHR revision side, if you’re going to open it up for the issues that the United States wants addressed, then other countries are going to open it up for issues that they want addressed. This could then become, sort of, a free-for-all of weakening the IHR and not strengthening the IHR. I actually think the IHR has gotten a bad rap during the pandemic, often unnecessarily, but that tells me that there’s political discontent with how the IHR operates and I’m worried that opening that up could produce a weakened set of revi – regardless of what happens in the other negotiations.
If you’re going to run the dual-track effectively then you want to make sure that what you’re doing in the INB is – complements, supplements, supports what’s happening on the IHR side. If that’s falling apart it’s difficult to figure out how the INB’s going to produce something that’s supportive.
Secondly, the INB itself could go off-track in terms of there not being agreement about what countries want to make a priority on that track as opposed to what they’re doing on the IHR. There is no clarity right now about that, how those two tracks operate together, and when you don’t have that and we’re this far down those tracks already, I think that’s dangerous for global health governance reform.
Emma Ross
Ilona.
Professor Ilona Kickbusch
I agree fully, it is incredibly dangerous to do both at the same time. We – it’s actually destructive, because I think you’re not going to get the one and you’re not going to get the other, and I think also if you look at the changes suggested by the United States, many of them are the kind of issues that one had hoped, you know, to partly address in the treaty, some of the accountability things, etc.
Now, of course one, if – so, you know, if you want to have a negative view you can say, “Well, you know, is the US doing this to obstruct the process?” Because in principle the United States, also because of its national decision-making structure, is usually opposed to treaties because it is very difficult to ratify them back home. They can sign them, like they did with the Tobacco Convention, but they usually don’t get them ratified, and that has been one of the arguments why the US has said, you know, “We won’t get this ratified, so it’s not worth going down that road.” That’s one thing.
The other thing – and that’s important and, you know, I’m not a lawyer but I’ve been told, and this is the history of the WHO, because the two types of instruments are under different parts, different Articles of the WHO Constitution. To – in order to negotiate a convention/treaty, or accord, as the Director-General now tends to call it, you need the ratification process, so you have to go back home to your parliament or whatever.
For the regulation, international health regulation, you need to find an agreement, but if you found an agreement you’re all part of that agreement, you don’t have to go into a ratification process. If anything you say, “I don’t like this agreement, I will opt out,” so one is an opt-in and the other is an opt-out. So, possibly, if you want to be well-meaning, you could say the United States is trying to strengthen an instrument, the Regulations, which, if you succeed in that negotiation, you will have everyone onboard and they don’t need to go down a ratification process.
But, and here I fully agree with both Davids, it’s an incredible danger. Any of us who were part of the IHR negotiations will know that even in those wonderful times where we did not have the extreme geopolitical issues we have today, it was incredibly difficult to address some of the security concerns of countries like Russia, etc.
So, I just – you know, I can’t even imagine, if you open up the IHR and actually want to get accountability into the IHR, what China and Russia are going to do, you know, forget it. And then – and this is what a number of people are warning about, not only about the IHR, also other international treaties, “Guys, anything you open at this historical point in time is probably going to end up being weaker than what we have now.”
And my final point is, my God, you know, let’s go off and – go on, I should say, and implement the IHR, because, you know, if at least, you know, 80% of the countries had implemented what is suggested there – we know that infrastructure is not the only thing, political decisions are important, but at least if we’d done that and if we’d financed that, which is the key issue around financing of a pandemic preparedness and response now, we would have been in a better situation, particularly for low and middle-income countries.
Emma Ross
Yeah, I just wanted to…
Professor Ilona Kickbusch
And that needs production facilities.
Emma Ross
If we haven’t even implemented what we do have, what do you all think is politically feasible to get done in a pandemic treaty? There are so many proposals for what should go in it, what shouldn’t, and nothing’s been decided yet, but what do you all think is politically feasible that could make it through? Who wants to start?
Professor Ilona Kickbusch
I don’t think that’s how you start a treaty discussion. You do not start a treaty discussion: “Oh, gosh, you know, how much do I not ask for because the US, China or I don’t know who else wouldn’t like it?” You start a treaty discussion like, for example, the European Union started this whole thing by saying, you know, “Let’s have a treaty.” Now, these Europeans, you know, tend to be – particularly in the EU, tend to be very legalistic and treaty-oriented and whatever and one can say, you know, “What do you know?”
But, you know, you’ve got to put something on the table and then you’ve got to clash your heads, but, you know – and of course, you know, you don’t go in with a total rosiness of – and particularly without any analyses of the geopolitics, as David Fidler has so correctly done. But, you know, you say as a country, “What do I want to get out of that?” and then you go into diplomatic negotiations. You don’t have, “Oh, the US is probably not going to agree on that, so I’m not going to p” – you need to have tough negotiations and – you know, and who knows? Maybe they will fail, maybe they will fail. You know, remember the climate negotiations in Copenhagen? They failed. A couple of years later they worked, so, you know, let’s do our job of health diplomacy.
Emma Ross
Okay. Before I go on to audience questions, Davids, what’s your take on – realistically, I hear what Ilona’s saying, that if you’ve got to make a bid for what you want, but looking at political realities, what do you think is likely to fly? Is there anything, David Fidler, that you think will fly at this point?
David Fidler
Well, I mean…
Emma Ross
What scraps do you think can make it through?
David Fidler
Well, I would like to agree with Ilona, but this is the problem with geopolitics. It immediately warps the way that we think about every issue, so, for example, if I think about the United St – what does the United States want out of this larger context of global health governance reform, beyond the IHR reform proposals it’s put on the table? There is no consensus in the United States about that, there’s no political solidarity within our domestic politics on that issue, and so we don’t even know what we necessarily want to put on the table that would pass domestic political muster, let alone survive in the geopolitical context.
And unfortunately, the geopolitics means we have to think about what we put on the table in geopolitical terms. It’s not an ideal world but that’s – we know from the Cold War and even before the Cold War in the interwar period, geopolitics warps how we look at these issues. Are we going to use this to poke Russia and China in the eye, are we going to use these negotiations to gain geopolitical advantage, soft power in this competitive, coercive environment? Those are parts of the reality of what we have to think about in terms of what gets put on the table.
That automatically creates that extra layer of, you know, problems, and I’m not sure the US is unusual in that context of not really knowing domestic – in its own domestic politics what it wants out of these negotiations, let alone how we’re going to navigate what we want in this context in which we are simply not going to be able to trust not just Russia and China but many other countries which support, you know, Russia and China in that spread of authoritarianism across the international system that’s 16 years and counting as a phenomenon.
There’s lots of good ideas, but when you start putting it in the domestic political filter and the international political filter, it really begins to look difficult to see where consensus can be reached. Even on Public Health 101, right, “Let’s improve global surveillance,” I mean, who could be against that? The question is how you’re going to go about doing that, and can you get these countries, which are ideologically opposed and now in some extent an existential geopolitical conflict, to agree on making those types of changes to capabilities?
Emma Ross
Thank you. I’m going to go to the first question, it’s the most upvoted…
Professor David Heymann
Emma, let me just…
Emma Ross
Fire away, David.
Professor David Heymann
Yeah, let me just add that I think what we’ve seen is that there is agreement in the revision of the International Health Regulations that national core capacity is of number one priority. That was a new addition in the revision of the IHR, and that’s something that could be built on, not within the IHR but within a treaty, because there were many things that didn’t work when that was put in the IHR. One of those was that countries just didn’t invest themselves, nor did the development community provide the funds necessary for countries that couldn’t afford to do it themselves.
So, there are already some global agreements in that revision of the IHR which could be built upon outside the IHR, and maybe the IHR, as I said earlier, is something which we should use as a step forward but not necessarily continue to use it for the risk assessment and other things that countries have decided they prefer doing themselves.
Emma Ross
So do you mean, David, that the treaty might tie countries to spend that money domestically or internationally, so some countries…?
Professor David Heymann
Yes, that’s one thing. Countries need to develop their own capacity to support their public health and sustain it, but development agencies should stop fractionalising their funding and providing for one area of work and not another. So why should they be providing only for a specific infectious disease, when what’s needed is a whole system that can accomplish disease surveillance, detection and response, and accept the surging populations that might occur from an outbreak or a pandemic?
Emma Ross
Okay, I’m going to go to Robert Lingard, most upvoted question, “How can a treaty or regulation on cross-border threats be legally binding if no sanctions are included in the agreement?” First of all, prospects for getting sanctions, and if we don’t have sanctions, what do we end up with?
David Fidler
I’ll – Emma, I can start on that.
Emma Ross
Sure.
David Fidler
The way international law operates is that there’s always the possibility for sanctions. You don’t need to create an international court or any type of formal dispute settlement mechanism. There’re something called countermeasures that we have in international law that if a country is violating its international legal obligations, other countries can take countermeasures against that country in order to bring it back into alignment with its obligation.
So, the notion that international law doesn’t have a – doesn’t have the capability or the rules or the mechanisms for sanctions to be implemented by countries is – just isn’t how international law operates. Second, you don’t – you rarely see in treaty law, right, countries agreeing to formal sanction systems, and so the fact that we don’t have these in the IHR, the fact that you’ll never get them in a pandemic treaty if that sees the light of day, doesn’t mean that health is somehow being discriminated against with regards to how international law operates with regards to that particular feature, it just – countries don’t like to see that happen.
So, I get frustrated when I keep hearing that you can’t have something that’s legally binding if you don’t have these sort of formal sanction mechanisms. First, that isn’t the way international law operates. Secondly, countries don’t want to sign up to formal sanctions in this context. Third, if you think about this in a geopolitical context that we’re in today, it’s dead before arrival.
So, I – what we need to see is more of the creativity that we saw in the International Health Regulations of 2005 in ways of creating incentives for countries to comply with the Regulations without there being formal sanctioning systems, and David Heymann is familiar with that type of thinking, to avoid the necessity of going into that cul-de-sac. I just don’t see that being a realistic possibility, so the fact that you don’t have that does not mean that you cannot have a legally binding international agreement.
Emma Ross
David Heymann, did you want to add anything on that? No. Ilona.
Professor Ilona Kickbusch
Yeah, I did want to, first of all, of course, to fully support what David Fidler just said, and actually the whole Ukraine crisis shows us that if countries want to sanction because somebody is breaking the law, international law, you can sanction. The issue is it might be more difficult in the global health arena to sanction, because what kind of sanction would you use that does not at the same time endanger the health of perhaps the party that is sanctioned?
And of course that has always been the problem in the health arena about other sanctions, because of the health impact they have had. You know, take the issue of Iran for example, Cuba and others. So, I think I am with David Fidler here totally, that some of the global health community that is making this hinge on whether we have a sanction dimension or not, that’s the wrong kind of thinking, point one.
Point two, there might be – and I won’t call it sanctions or even disincentives, in other arenas, maybe, you know, through who gets debt relief or who gets certain loans, etc., but even that is very difficult with the financial institutions, because then, you know, the IHR kicks in. You know, has country X that is now not complying had the amount of support it should have gotten to put structures into place so that it can comply?
So, sanctions in global health are one of the absolutely most difficult things you can put your hand on. At the same time, countries are always “free,” in quotes, if someone breaks the law, that they can sanction, and Ukraine is the best example of that. Ukraine is also the best example of countries calling for the implementation of international law, and if you think now of the attacks on health systems, if you think about issues suddenly around the International Criminal Court, and actually the US is in a double-bind right now, having always been against the International Criminal Court, particularly as far as Americans were concerned, and now suddenly because they are speaking of genocide in Ukraine by Russia, you know, the International Criminal Court actually sounds quite exciting.
So, I think, you know, there’s more here than we sometimes think about, and sometimes history catches up with us, if we don’t accept a certain instrument, suddenly at one point in time we’d be quite happy if we had that instrument in order to apply it to someone else. But of course, in negotiation, everyone’s afraid, “It’s going to be applied to me, and therefore I’m not going to accept it.”
Emma Ross
More politics. The next most upvoted question is from Priti Patnaik from Geneva Health Files, and that is, “How realistic is it to expect that equity considerations will be meaningfully addressed in a new instrument, given the utter lack of solidarity that has been witnessed?” David Heymann, do you have thoughts on that first?
Professor David Heymann
Well, we have seen some equity negotiations in the past that have been quite successful, and I’m thinking of the influenza vaccine issues, where there was in 2007 the beginning of an international, or of an intergovernmental working group, which actually developed a mechanism that there could be more equitable distribution of influenza vaccines, and we’ve seen a move ahead in the current situation to the ACT Accelerator, trying to make it more equitable in its distribution. That has not worked as initially conceived, when countries, both lower and middle-income countries and industrialised countries, would be willing to purchase at least a quantity of their vaccine through the facility in order to get a negotiated price that was best.
But it was a step forward, so, there’s active discussion about how this can be done, and I’ll leave it to others to say what they believe, but I believe that we’re seeing that there is a will to negotiate for more equitable distribution. If, for example, the facility, the COVAX facility, had been set up and functioning before countries decided that they would invest in industry to pull the vaccines out, the billions of dollars that did that, it might have gone through that facility, we just don’t know.
Emma Ross
Ilona or David, anything to add on the prospects for equity coming through?
Professor Ilona Kickbusch
Well, that’s part of the negotiation, isn’t it, and I think taking David’s example of the PIP Framework, I mean, it was a very tough stance by Indonesia that said, “You know, hey, guys, we’re not going to share anything anymore if you don’t share with us,” and a actually defunct international alliance of the non-aligned countries suddenly got something to do again and came together, and started to push for this, and there was an outcome, not perfect.
But interestingly enough, I sometimes think, you know, some agreements that nobody likes, neither, you know, or member states, nor the private sector, nor whatever, actually, because it moves forward. It depends very, very much on the negotiating power of the developing countries, the low and middle-income countries, and particular – and this is a geopolitical issue we haven’t raised and, you know, it’s reared its head also at the United Nations in relation to condemnation of Russia and who votes and who abstains, etc., you know, a lot depends on positions taken by countries like Brazil, by countries like India, by countries like South Africa.
They are negotiating giants in this context, as well, and pushing things through and negotiating them with the older powers that be, if I call it that, is something that will be very important, but…
Emma Ross
So, one of the most [inaudible – 51:53]…?
Professor Ilona Kickbusch
…having – not having equity in there is – you know, it’s going to be dead from the start, the developing countries have said that very clearly, South Africa has taken that stand 150%, but, you know, this is a power game and the power game has changed, and it’s not just, you know, US, China, Russia. It is really, you know, the new group of countries that is very strong in this context, and, you know, alliances like BRICS, etc., who now play a very key role also in health negotiations.
Emma Ross
So what leverage have they got? You know, what do they bring to the table, or what do they threaten to get what they want, what…?
Professor Ilona Kickbusch
Well, it’s one country, one vote, they have loads of leverage. David.
David Fidler
Well, if we want to use the PIP Framework as our analogy, we have to keep in mind that Indonesia, supported by other low-income countries, threatened to take down the global health surveillance system for influenza. This was a context where there was the message, “There is no solidarity here, so we’re going to take something that you think you need unless there’s a better bargain.” I mean, that’s pretty hardcore, you know, politics, and I think the situation that we have today – so, that – to me, that makes me worry, because that’s an indication of, even in that context, a lack of solidarity on something seemingly very basic.
If we don’t – if you don’t have low and middle-income countries grouping together, either using old – the older mechanisms of the non-aligned movement, or having some type of new non-aligned movement to make the great powers wake up and take more interest in meeting the demands of low and middle-income countries, I don’t think we’re going to see equity make progress here.
‘Cause the flipside of this is, everything I’ve seen is that we need – if global solidarity has to mean global equity, everybody’s looking again to the G7 to fund this globally, that’s not – it didn’t happen before in a more benign international system, that’s not going to happen now. The burden-sharing for purposes of providing the resources has to be more than the G7. That’s again where geopolitics comes into play, because I – even though countries are willing to take money from the G7, they’re less interested in taking resources potentially from Russia, China or other potential funders. That’s something that we’ve got to work through.
And then secondly, if there’s not – if the low and middle-income countries don’t also play some power politics here, equity’s not going to get higher on the agenda. That – I mean, that’s what the PIP Framework teaches us, and I think we’re in a situation now where that’s the case. What I don’t see is any indication that there is consensus among low and middle-income countries to band together to do that. I don’t know why they don’t do a mass walk-out at the World Health Assembly in May to really demonstrate that they’re serious about having their concerns about equity taken into account either in the IHR revision negotiations or the INB.
Emma Ross
Well, have they got any muscle? What have they got up their sleeve that they could leverage, like Indonesia and withholding virus samples, is there anything like that on the horizon…
David Fidler
Yeah, I mean, certainly.
Emma Ross
…that can play into this?
David Fidler
Well, certainly, because there’s issue linkage now, so if we’re in a geopolitical context, I don’t want potential allies telling me that if I’m not willing to listen and take their demands and interests seriously, they’re going to go – they’re on the next plane to Beijing. That’ll get Washington DC’s attention. I mean, this is a very different type of game than even Indonesia could play back in the – you know, back in the day that produced the PIP Framework. It didn’t produce something new and innovative in global health governance, but it came from a power political move on the part of low and middle-income countries.
So, you’re going to have to link health to this larger geopolitical context in order to get countries to, sort of, say, “Okay, we think that’s important enough because we also want to have better economic relations, or we want to have a – you know, a new naval port there, or we want your support, you know, on our position on Taiwan or the South China Sea.” You get that issue linkage being played together.
This is going to make health people really uncomfortable, because then it looks like health is being used as a tool in the geopolitical context. In fact, that’s where we are and that’s where we’re going to be for at least a decade, if not more.
Professor Ilona Kickbusch
I agree fully, and I think we have a very, very good example. We – you know, the European Union regularly has a meeting with the African Union, and it couldn’t take place because of COVID, etc., etc. They had a whole range of outstanding agendas when they were finally able to meet again a month or two ago, and the whole negotiation was driven by the inequity experiences that the African countries had had in terms of vaccine sharing, distribution inequity, etc.
And, you know, the summit, the joint summit, nearly went off the rails because of that, and the African countries and the African Union was incredibly outspoken, and the whole negotiations took a different turn, they had to be much more equitable in terms of partnership playing out, this is playing out everywhere, and I want to come back to what I already said.
You know, look carefully at who abstained in the General Assembly of the United Nations when the Russia resolution was tabled. People initially said, “Oh, how wonderful, all these countries voted for it and we got it through.” No, have a look at who abstained, that is really – and, you know, the Biden Administration, for example, has a tremendous problem right now, because India is sitting on the fence in relation to both the Russia and the US and, you know, they are playing this out in general politics, and they can and will play this out in health, and they will use health for general politics.
Just look at vaccine diplomacy, and the two countries that used it most was China and India, and, you know, the European Union doesn’t only look egotistic in comparison to that, but it looks purely politically naive in comparison to that. So, those are things we also need to analyse better.
Emma Ross
Okay, unfortunately we’re out of time with loads more questions to go. I wanted to squeeze in a one-liner, a kicker from each of you, and that is before we wrap up, a quick one-liner, would a weak agreement be better than nothing, or would it be very damaging? David Heymann, yes or no? A weak agreement’s better than nothing, or not…?
Professor David Heymann
We have a weak agreement now in the International Health Regulations, so we should continue to work with it, if we get nothing more.
Emma Ross
Ilona, a weak treaty, accord worth anything?
Professor Ilona Kickbusch
Well, it depends if it’s a framework convention, because the convention in itself can be relatively weak, but the COPs that follow could actually - a s the climate changes, actually be quite strong, so, it depends what kind of instrument you choose.
Emma Ross
Okay, David Fidler, is a weak one worth having?
David Fidler
No.
Emma Ross
Okay, thank you. Well, that’s it, guys, that’s all we have time for, and I’m sorry we didn’t get to more questions, but a really fascinating conversation and still more to unpick with that, so, thank you, Ilona and David, so much for sharing your considerable insight with us, and such a frank exchange. There was more agreement between you than I thought there was going to be, which was quite interesting, and as for the next steps, a draft of the deck to the treaty is due the 1st of August, so, I guess we’ll have to have a look at that, and in the meantime, to our audience, thank you so much for joining us. I hope it’s been informative and I will close now, so, thank you all for joining David and I, and thank you, David, again as ever.
