An issue that has arisen on the campaign trail is whether there is a need to strengthen the World Health Organization’s (WHO) role in responding to pandemics, following the outbreak of COVID-19 in early 2020. This Flagpost will explain key reforms currently under negotiation and the potential impact on Australia’s public health prevention, preparedness and response measures.

There are currently two major reforms relating to global health security being considered by WHO Member States.

In December 2021, the 194 Member States of the WHO reached consensus to begin the process of drafting and negotiating a convention, agreement or other international instrument under the Constitution of the World Health Organization to strengthen pandemic prevention, preparedness and response (often referred to as a proposed ‘pandemic treaty’).

In April 2022, the United States put forward a proposal to amend the International Health Regulations (IHR) which is listed on the provisional agenda (Item 16.2, WHA75/18) for the upcoming 75th World Health Assembly (taking place from 22 – 28 May 2022).

These reforms are not mutually exclusive—both provide a way for WHO Member States to strengthen pandemic preparedness and response.

What is the World Health Organization?

The WHO was established as a specialised United Nations agency through the entry into force of the Constitution of the World Health Organization on 7 April 1948.

Governance of the WHO takes place through the World Health Assembly (WHA), which is the supreme decision-making body; and the Executive Board, which gives effect to the decisions and policies of the WHA. The WHO is headed by the Director-General (currently Dr Tedros Adhanom Ghebreyesu), who is appointed by the WHA on the nomination of the Executive Board. The WHO has stated that its job is to support Member States ‘as they negotiate and agree on an accord to commit to protecting future generations from pandemics’, noting the ‘WHO is an expression of Member States’ own sovereignty’.

What are the International Health Regulations?

The Constitution of the World Health Organization confers upon the WHA the authority to adopt regulations ‘designed to prevent the international spread of disease’ (Article 21). The IHR was first adopted in 1969, with the most recent version adopted in 2005 following the spread of severe acute respiratory syndrome (SARS).

The aim of the IHR is ‘to prevent, protect against, control and provide a public health response to the international spread of disease in ways that are commensurate with and restricted to public health risks, and which avoid unnecessary interference with international traffic and trade’ (Article 2). The IHR are not limited to specific diseases but rather cover ‘illness or medical condition, irrespective of origin or source, that presents or could present significant harm to humans’ (Article 1).

The IHR require States Parties (of which there are currently 196 countries) to establish and maintain minimum core public health capacities, which are capacities required to detect, assess, notify, report and respond to public health events, including notifying the WHO of a public health emergency of international concern. The IHR are primarily aimed at controlling the spread of infectious diseases and do not cover issues such as wildlife trade and agricultural intensification, or vaccine access.

Proposal to amend the IHR

In July 2021, the Director-General of the WHO noted that ‘a consensus has emerged on the urgent need for fundamental changes in the global health architecture, both to address the shortfalls in the response to this pandemic, and to prepare for the next’.

On 26 January 2022 the WHO Executive Board urged members of the WHO to take all appropriate measures to consider potential amendments to the IHR.

The proposed amendments circulated by the United States outline significant changes to core capabilities set out in the IHR relating to surveillance, monitoring, reporting, notification, verification and response. They do not make any reference to vaccine access or vaccination more broadly. The proposed amendments would also see the WHO play a greater role during a public health emergency and would establish a Compliance Committee to monitor States Parties’ compliance with the IHR.

The proposed US amendments have been circulated to WHO Member States and informal negotiations have already taken place prior to the upcoming 75th World Health Assembly. In order for the amendments to be adopted by the WHA, a two-thirds majority must vote in favour of the amendments. Given existing geopolitical tensions, it is unlikely that Member States such as Russia or China would support the amendments, and Member States from the WHO Africa Region have called for greater reform to ‘address the current inequities in order to ensure balanced rights and obligations in health emergency response’.

Recent information released by the European Council suggests that the majority of Member States have agreed to support amendments which will allow the IHR to be amended more quickly in the future by reducing the period for the entry into force of amendments from twenty-four to twelve months, rather than six months as proposed in the US amendments. The Director-General of the WHO has also voiced their support for this amendment.

The European Union has stated that ‘negotiations on the other amendments proposed by the United States, and any additional proposals thereof, should continue after May 2022, in view of their possible adoption at the seventy-sixth session of the World Health Assembly in May 2023’. However, as negotiations are still taking place and are likely to remain on foot until the proposal is formally considered by the WHA, other amendments may ultimately be adopted by Member States.

Is Australia required to implement any amendments to the IHR?

As a Member State of the WHO, Australia is generally required to implement any amendments to the IHR except where Australia has specifically notified the Director-General of the WHO that it will not implement the amendments or where it has made reservations (Articles 55, 59, 61 and 62 of the IHR).

However, Article 3.4 of the IHR makes clear that States Parties ‘have, in accordance with the Charter of the United Nations and the principles of international law, the sovereign right to legislate and to implement legislation in pursuance of their health policies. In doing so they should uphold the purpose of these Regulations’.

The Department of Health notes that Australia has incorporated key IHR standards into domestic law, including at the Commonwealth level through the enactment of the Biosecurity Act 2015 and the National Health Security Act 2007.

Process for negotiating a pandemic treaty

Alongside the proposal to amend the IHR, the WHO is also undertaking a process to develop a new instrument on pandemic prevention, preparedness and response.

Following a proposal by a number of WHO Member States (including Australia, the European Union and the United States) ‘to consider developing a WHO convention, agreement or other international instrument on pandemic preparedness and response’, a special session of the WHA was held from 29 November to 1 December 2021. At the session, WHO Member States agreed to begin negotiating an international agreement on how countries must prevent, prepare for, and react to pandemics.

The intergovernmental negotiating body responsible for drafting the agreement held its first meeting on 24 February 2022 and has also commenced holding public hearings to inform its deliberations. This body will deliver a progress report to the 76th WHA in 2023, with the aim of adopting an agreement by 2024. If adopted, Member States will be required to domestically implement the agreement in accordance with their constitutional processes.

As the adoption of such an agreement will require the support of two-thirds of WHO Member States, the negotiating process will likely be long and drawn-out. Differences have already emerged between countries on what form the agreement should take, with some countries pushing for a legally binding agreement, while others preferring it be non-binding. There will also be challenges in addressing the concerns of various Member States, which range from equitable vaccine access, stronger regulation of wildlife markets and better information sharing. Critics of a ‘pandemic treaty’ have also questioned whether greater governance in the form of an international agreement will generate greater commitment from WHO Member States to public health during future diseases outbreaks.