The pandemic instrument as a treaty under Article 19 of the WHO Constitution raises concerns on the fragmentation of the health emergency regime, which the Intergovernmental Negotiating Body (INB) has not taken up for discussion.
The draft negotiating text and the draft resolution for its adoption proposes that the pandemic instrument would be adopted under Article 19 of the WHO Constitution as a treaty. Further, some Member States are moving towards the notion of a protocol for the Pathogen Access and Benefit Sharing (PABS) system and for the proposed instrument on One Health Approach.
Since treaty obligations would apply only after ratification, which is a sovereign decision, the result is that Member States could decide not to be part of the treaty or accompanying protocol. This would result in fragmented membership in various instruments and WHO Member States with different sets of obligations on health emergencies.
Legal instruments under the WHO Constitution
The WHO Constitution envisages two types of legal instruments. First, there are conventions or agreements also known as treaties. To date there have only been two instruments concluded under Article 19, i.e. the Framework Convention on Tobacco Control and the Protocol on Illegal Trade in Tobacco Products. Secondly, there are legal instruments that can be adopted under Article 21 and this was the pathway for the International Health Regulations 2005 (IHR 2005). The nature of legal obligations under both pathways is the same, i.e. instruments under Article 19 and 21 are legally binding.
Articles 19 and 20 of the WHO Constitution set the rules for treaty adoption and joining of a treaty respectively. Article 19 states: “The Health Assembly shall have authority to adopt conventions or agreements with respect to any matter within the competence of the Organization. A two-thirds vote of the Health Assembly shall be required for the adoption of such conventions or agreements, which shall come into force for each Member when accepted by it in accordance with its constitutional processes”.
Article 20 sets out the ratification process of a treaty: “Each Member undertakes that it will, within eighteen months after the adoption by the Health Assembly of a convention or agreement, take action relative to the acceptance of such convention or agreement. Each Member shall notify the Director-General of the action taken, and if it does not accept such convention or agreement within the time limit, it will furnish a statement of the reasons for non-acceptance. In case of acceptance, each Member agrees to make an annual report to the Director-General in accordance with Chapter XI”.
Thus, obligations of an Article 19 instrument would be applicable to WHO Member States only after ratification.
In contrast, the obligations of an instrument adopted under Article 21 automatically apply without any need for ratification. Member States who do not want to be a party under an Article 21 instruments will need to notify the WHO Director-General, and this is provided in Article 22: “Regulations adopted pursuant to Article 21 shall come into force for all Members after due notice has been given of their adoption by the Health Assembly except for such Members as may notify the Director-General of rejection or reservations within the period stated in the notice”.
Thus, obligations under an Article 21 instrument are applicable to all WHO Member States in the absence of an explicit communication to the Director-General to opt out.