Client Alerts

Client Alert: Could the COVID-19 pandemic inspire the development of a United Nations Convention on Pandemic Suppression?

Volterra Fietta Client Alert
14 April 2020

The COVID-19 pandemic poses unprecedented global challenges.  States have adopted disparate measures in response to the COVID-19 pandemic.  These inconsistent responses might have had negative consequences, including the spread of the disease, disruption of international trade and sub-optimal outcomes due to State competition for essential medical resources and materials.

As a result, the COVID-19 pandemic has demonstrated the need for further global cooperation in pandemic suppression and amelioration.  This could include the establishment of a UN Convention on Pandemic Suppression (“UN COPS”) as a comprehensive international instrument on pandemic response.  The question becomes:  what should a UN COPS address and how can it assist in future pandemics?

Historical overview

Historically, in the mid-19th century, States developed international instruments to deal with the spread of various infectious diseases.  This history may contain lessons for a UN COPS.

a.       The International Sanitary Conventions

Global health cooperation began with the first International Sanitary Conference in Paris in 1851.  41 years and seven International Sanitary Conferences later, participating States agreed on the first International Sanitary Convention (the “ISC”) in 1892, to counter the fifth cholera pandemic of the 19th century.  It was a narrow treaty providing for maritime quarantine regulations for cholera on ships traversing the Suez Canal.  This first ISC was shortly followed by two more conventions on cholera (Dresden, 1893; Paris, 1894) and a fourth convention related to the plague (Venice, 1897).  Eventually, these conventions were consolidated into the 1903 ISC, where member States also agreed on the creation of a permanent international health bureau, later called the Office international d’ hygiène publique (the “OIHP”).  The 1903 ISC was replaced by new ISCs in 1912 and 1926, with the addition of the yellow fever and then of the epidemic typhus and smallpox to the so-called “Convention diseases”.  The 1926 ISC required any State to immediately notify other States and the OIHP of cases of the covered infectious diseases.  It also provided for measures in ports and railways to prevent contamination, including surveillance of travellers from infectious regions.

The 1933 International Sanitary Convention for Aerial Navigation (the “ISCAN”) supplemented this ISC with specific provisions on the prevention of spread of the five “Convention diseases” in and from aircrafts.

In 1943, the newly established United Nations Relief and Rehabilitation Administration (the “UNRRA”) focused on amending the 1926 ISC and 1933 ISCAN to meet emergency conditions arising out of the war and the fear of spread of infectious diseases in liberated territories. Under the amended 1944 ISCs, the information-sharing obligations of member States were extended to any “disease which, in the opinion of UNRRA, constitutes a menace to other countries” (Article 5B).    Those conventions also invited special arrangements in the case of displaced persons moving across borders (Articles 15 and 66).

b.       The World Health Organisation and relevant initiatives

Since its establishment in 1948, the World Health Organisation (the “WHO”) has played a principal role coordinating responses to global health crises.  In 1951, a century after the first International Sanitary Conference, the World Health Assembly approved the first single set of rules on the protection from the spread of “quarantinable diseases”: the International Sanitary Regulations, which replaced the 1944 ISCs.

The WHO created the Global Influenza Surveillance and Response System (the “GISRS”) in 1952, to monitor the evolution of influenza viruses through the sharing of laboratory surveillance data  worldwide.  In 1999, WHO introduced an Influenza Pandemic Plan “to assist medical and public health leaders to better respond to future threats of pandemic influenza.”  Given the difficulties in predicting and responding rapidly to the outbreak of influenza pandemics with effective medication, the WHO provided strategic options and proposals for the establishment of National Pandemic Planning Committees in Member States, bolstering its coordinating role and strengthening surveillance systems for influenza outbreaks.

In 2005, the WHO updated its International Health Regulations (the “IHR”), first adopted in 1969 on the basis of the International Sanitary Regulations.  The 2005 IHR are the primary international instrument regulating the “international spread of disease” today.  The IHR in the context of the COVID-19 pandemic is addressed in a previous Volterra Fietta client alert.  To support and strengthen the implementation of the IHR and the GIRS, WHO member States adopted the Pandemic Influenza Preparedness framework in 2011 for the sharing of influenza viruses and access to vaccines and other benefits.

Pursuant to IHR Article 12, on 30 January 2020, the WHO Director-General declared that COVID-19 was a “public health emergency of international concern” (a PHEIC).  The same day, the Director-General issued a number of recommendations (the COVID-19 Recommendations), pursuant to IHR Articles 15 and 49.

Possible Steps Forward

Unfortunately, with the benefit of hindsight, the international mechanisms for pandemic control and suppression have shown themselves to be unfit for purpose.  Change appears necessary and a UN COPS is one way to make it happen.  There are a number of options available to States.  Each of them would have repercussions beyond the public health arena and would need to be considered calmly and carefully.  A number of the options that are presently being identified by commentators in the international public health arena are set out below.

First, a UN COPS could create a fund to address pandemics, which would provide a means for smaller and lesser-resourced States to build up capacity to address pandemic situations.  The fund could also be used to obtain essential medical supplies for such States during pandemics.  COVID-19 has proved that pathogens do not respect international boundaries.  It is clear that greater-resourced and developed States have an interest in ensuring pandemic control outside their own borders.  Indeed, many under-resourced States failed to reach core capacity to address pandemics despite an obligation to do so under the IHR.

Second, a UN COPS could create an international monitoring institution to coordinate with State medical authorities and assess the gravity of a potential pandemic.  Under the current IHR, member States bear the independent obligation to assess and report sufficiently grave health threats to the WHO (IHR Articles 5 and 13).  That has proven to be insufficient.  International health authorities and agencies must be able to make independent evaluations of possible pandemics and must be given the means to do so.

Third, a UN COPS could ensure access to needed medical supplies by (i) avoiding price gouging by requiring States not to compete with each other in the international markets for medical supplies in the event of a pandemic; and (ii) requiring the free export and import of essential medical supplies, without national preference.  In a pandemic, a State quite properly may consider their own citizens’ and residents’ interests above those of their neighbours and fellow States.  However, this can lead to sub-optimal global health outcomes.  Resource hoarding and the prevention of access to key resources might need to be eliminated in pandemic situations.

Fourth, a UN COPS could permit the relaxation of IP protections for the purpose of fighting a pandemic, perhaps also while providing compensation to original holders of IP.  Compulsory IP licensing is well-known in numerous States’ laws.  Widespread access to IP in a pandemic can have several scientific and global health benefits.  On 23 March 2020, Costa Rica submitted an IP-related proposal to the Director-General in response to the COVID-19 pandemic.  Of course, relevant IP development motivation and reward and ownership issues must be recognised and addressed.

Fifth, a UN COPS could mandate the sharing of genetic and epidemiological information about pathogens between States.  There are reports that early requests for information about the COVID-19 virus, including samples of the pathogen, were not addressed at the earliest stages of the pandemic.  This might have delayed the responsiveness of some States in developing their own testing and medical capabilities.  While it is inappropriate to apportion fault for the COVID-19 virus on any particular State or States, the lesson must be learned that widespread access to this core information is necessary to accelerate a pandemic response.

Sixth, a UN COPS could amend the international authorities’ recommendations in the case of a pandemic, which are currently “non-binding advice” (IHR Article 1), into mandatory obligations.  This could include dispute resolution mechanisms to address breaches.

Conclusion

The COVID-19 pandemic is illuminating weaknesses of the current system of global governance for public health.  Akin to other international agreements emerging in the aftermath of pandemics, a UN COPS may provide one path forward.

For further information, please contact Robert Volterra (Robert.volterra@volterrafietta.com) or Gunjan Sharma (Gunjan.sharma@volterrafietta.com).