From December 1, 2021, the World Health Assembly, the governing body of the World Health Organization, has delegated to an Intergovernmental Negotiating Body (INB) the decision whether a new international pandemic agreement would be a binding treaty, a compact formed under WHO’s unique regulatory authority, or a set of non-binding recommendations.
On July 21, 2022, a day earlier than scheduled due to rapid consensus, the INB agreed that a future pandemic “treaty” would be binding under Article 19 of the WHO Constitution. The World Health Organization has only concluded one binding treaty before – the 2003 Framework Convention on Tobacco Control – and the decision is at odds with previous stated preferences of governments that will be essential to any agreement’s success including China and the U.S.
The INB did not foreclose the possibility that some or even most elements of the treaty would include non-binding aspects, and the agreement is still entirely in the negotiation phase, including the actual components of a treaty like surveillance, sharing of medicines and vaccines, and reporting and data-sharing provisions that will go to the heart of national sovereignty concerns.
Regardless of how these questions are ultimately resolved, for readers of this blog, a principal point of interest is the coming delegation of authority to the World Health Organization, and how that delegation may shape the future of global administrative law, including how well that law helps prepare the world for the next pandemic.