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International Treaties International Health Law in Perspective Background paper 16 By Dr Alexandra Phelan and Dr Priya Pillai The Independent Panel for Pandemic Preparedness and Response May 2021 1 Table of Contents 1. Summary ..................................................................................................................... 4 2. Objectives .................................................................................................................... 4 3. Reform Requirements for Achieving Objectives............................................................. 5 4. Potential Reform Pathways .......................................................................................... 5 4. 1 Format .............................................................................................................................. 6 4.2 Forum ................................................................................................................................ 7 4.3 Reform of Existing International Law ................................................................................... 8 Framework Convention Models........................................................................................ 9 A.1. What is a framework convention? ................................................................................... 9 A.2. What is the format? ........................................................................................................ 9 A.3. What is the legal impact? ................................................................................................ 9 A.4. Advantages .................................................................................................................... 9 A.5. Disadvantages ................................................................................................................ 9 A.6. Examples ...................................................................................................................... 10 WHO Framework Convention on Tobacco Control (FCTC) .......................................................................... 10 UN Framework Convention on Climate Change (UNFCCC).......................................................................... 11 A System Reset: Lessons from International Climate Law .................................................13 A.1. Resetting the System: the Rio Summit and Framework Convention................................ 13 UNFCCC general obligations on all Parties ................................................................................................... 13 UNFCCC specific obligations on High Income Countries .............................................................................. 14 A.2. Building an International Climate System through Institutions and Governance ............. 14 Conference of Parties: crucial for inter-crisis periods and continuous norm-building................................ 14 Financing Mechanism ................................................................................................................................... 16 Technology Mechanism ............................................................................................................................... 16 Building a Scientific Evidence-Base .............................................................................................................. 16 Reporting and Review .................................................................................................................................. 17 A.3. Lessons for an International Reset of Pandemic Preparedness and Response ................. 17 Reform of the International Health Regulations (2005)....................................................18 A.1. Notifications, Information and Sample Sharing .............................................................. 18 A.2. Periodic Review of Compliance & Investigations ............................................................ 19 A.3. Declarations Process ..................................................................................................... 20 A.4. Travel Restrictions ........................................................................................................ 21 A.5. Research, Development, and Access to Pandemic Tools ................................................. 21 A.6. Review Conferences/Conferences of Parties .................................................................. 21 2 International Treaties .....................................................................................................23 A.1. Survey of Treaties ......................................................................................................... 23 A.2. Assessment Metrics ...................................................................................................... 25 A.3. Key Observations .......................................................................................................... 26 A.4. Conclusion .................................................................................................................... 36 Overview of key provisions per treaty .............................................................................38 List of treaties and relevant provisions ............................................................................43 Convention on International Civil Aviation (“Chicago Convention”) ........................................................... 43 Convention on the Prohibition of the Development, Production and Stockpiling of Bacteriological (Biological) and Toxin Weapons and on Their Destruction (“Biological Weapons Convention” or “BWC”) 45 Convention on the Prohibition of the Development, Production, Stockpiling and Use of Chemical Weapons and on their Destruction (the “Chemical Weapons Convention” or “CWC”) .............................. 46 Convention on Cluster Munitions (“CCM”) .................................................................................................. 48 Convention on International Trade in Endangered Species of Wild Fauna and Flora (“CITES”) ................. 49 The Paris Agreement, 2015 .......................................................................................................................... 51 Montreal Protocol on Substances that Deplete the Ozone Layer (“Montreal Protocol”) ........................... 53 Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (“Convention against Torture” or “CAT”) ..................................................................................................... 55 International Convention on the Elimination of All Forms of Racial Discrimination (“CERD”) .................... 57 Rome Statute of the International Criminal Court (“Rome Statute”) .......................................................... 59 The views expressed are those of the authors and do not necessarily reflect the views of the Independent Panel for Pandemic Preparedness and Response. 3 1. Summary Any reset of the international system will require reform to existing international governance for pandemic preparedness and response. This includes adopting new international legal instruments and/or reforming existing international instruments. Reform using legal instruments is an opportunity to address gaps identified in the international response and clarify responsibilities between States and international organizations, establish and reinforce legal obligations and norms, and institute new governance structures (such as a global health security taskforce and mechanisms for financing, research and development, technology transfer, and capacity building). This background paper sets out the range of options available. However, a Framework Convention – Protocol approach has the potential to capitalize on political will and facilitate the necessary governance reforms. This can be done in coherence with the broader international legal system, including under, or separate to, the auspices of the World Health Organization and with, or without, reforms to existing global health law, such as the International Health Regulations (2005). 2. Objectives The ultimate objective of any international health reform is to prevent pandemics. While outbreaks may not be preventable, pandemics, and the scale of human lives, health, social, and economic disruption that they cause, are preventable. While pandemics of highly transmissible and virulent infectious diseases are of primary concern, as COVID19 has demonstrated, our responses to emerging infectious diseases cannot depend on fully understanding the impact of a novel infectious disease in the immediate days following detection. Any governance framework must be sufficiently ambitious and flexible to address the range of potential risks to global health security, while sufficiently specific and certain to ensure implementation and compliance with obligations. Finally, the success of any new global governance arrangements for a more prepared and responsive international system will depend on ensuring global participation and equity, and sustainability built on recognition that the absence of pandemics after its implementation is a marker of success. To meet these objectives, reforms must aim to: (1) Strengthen the rapid detection, reporting, alert, and response to potential pandemic threats, including ensuring minimum public health capacities for surveillance and rapid and timely information sharing, and appropriate
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