WHO ‘Pandemic Treaty’ Draft Reaffirms Nations’ Sovereignty to Dictate Health Policy

SciCheck Digest

Members of the World Health Organization are in the process of developing a new agreement to prevent, prepare for and respond to pandemics. A preliminary draft presented in February reaffirms nations’ sovereign right to make their own health policies during global pandemics, contrary to false claims online.

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An intergovernmental negotiating body formed by member states of the World Health Organization is gathering this week to continue the discussions on a new pandemic-related agreement.

WHO members acknowledged the need for what the organization called “a new international treaty for pandemic preparedness and response” in 2021, although whether the agreement will formally be a treaty, which requires approval by the Senate, remains to be seen. In a preliminary draft presented by the WHO on Feb. 1, members recognized the “catastrophic failure of the international community in showing solidarity and equity in response to the coronavirus disease (COVID-19) pandemic.” 

The 32-page draft, also known as the “Zero Draft,” proposes mechanisms to prevent and prepare for future pandemics, while ensuring a better coordinated response and equal access to vaccines, treatments, and diagnostics. The draft, which is a preliminary version to start negotiations, explicitly reaffirms each nation’s sovereign right “in addressing public health matters” and will be discussed for over a year. A first draft is expected by June.

“This is a once-in-a-generation chance to fix some of the big weaknesses that we saw during COVID-19,” Suerie Moon, co-director of the Global Health Centre at the Geneva Graduate Institute in Switzerland, told Nature. It could “make a tremendous difference for the next pandemic,” she added. 

As we explained in 2022, the WHO has no authority to dictate U.S. health policy or to interfere in any nation’s sovereignty. Neither the accord nor amendments proposed to the legally binding agreement that defines countries rights and obligations during health emergencies, known as the International Health Regulations, would give the WHO control over how the U.S. governs domestic health policies.

Yet, once again, conservatives are falsely claiming the agreement will do exactly that, while also giving the wrong impression that it is about to be ratified. 

A widely shared article published in the Epoch Times, a conservative media outlet owned by a Chinese religious group, falsely claims the Biden administration “is preparing to sign up” the U.S. to an accord that “would give the Geneva-based United Nations health agency the authority to dictate America’s policies during a pandemic.”

The Gateway Pundit, another conservative news site, takes the Epoch Times’s article further in a post titled: “END OF AMERICAN SOVEREIGNTY: Biden Regime Negotiates ‘Legally Binding’ Deal To Give Chinese-Backed World Health Organization Full Authority Over US Pandemic Policies – No Senate Approval Needed.”

The false allegations are also spreading in social media. According to an incorrect Instagram post, “194 countries, all of the member states of the U.N., would give up their sovereignty to the World Health Organization over healthcare,” which is what former Republican congresswoman Michele Bachmann said during a conservative Christian show that aired on Feb. 20. And a viral video posted on YouTube falsely claims: “BREAKING: US To Sign Over Sovereignty To W.H.O.”

Lawrence O. Gostin, a global health law professor at Georgetown University, told us all of these claims are “utterly untrue and unfounded.”

Gostin, who is on the IHR review committee and is involved in the drafting of the agreement, told us the WHO can provide guidance, give recommendations and technical advice to member nations. But countries, he said, retain “all of their sovereign right to make their own domestic health policies, ranging from treatment to mass mandates and lockdowns and everything in between.” 

In addition, the agreement is far from ratification. The intergovernmental negotiating body is currently meeting from Feb. 27 to March 3 to discuss the Zero Draft for the first time. Experts have said it is highly likely the draft will go through numerous modifications before reaching its final version. The goal is to present a final draft to the World Health Assembly in May 2024. 

Gostin told us in an interview that there is no indication right now that the U.S. would even sign it. And he added that it would probably need to be approved by the Senate. 

A spokesperson for the U.S. Department of Health and Human Services confirmed the claims spreading online are baseless. 

“It is false to claim that the World Health Organization has now, or will have by virtue of these activities, any authority to direct U.S. health policy or national health emergency response actions,” HHS said in a statement, adding that “actions at the national level will remain reserved to sovereign states, including the United States.”

Although the legal nature of the accord has not been decided yet, the Zero Draft stipulates that it “should be legally binding and contain both legally binding as well as non-legally binding elements.” But again, that doesn’t mean member states won’t be able to govern themselves.

The draft, which has 38 articles and eight chapters, starts by “[r]eaffirming the principle of sovereignty of States Parties in addressing public health matters, notably pandemic prevention, preparedness, response and health systems recovery,” (emphasis is in the draft text). 

Sovereignty is also defined as one of its guiding principles and rights. 

“States have, in accordance with the Charter of the United Nations and the principles of international law, the sovereign right to determine and manage their approach to public health, notably pandemic prevention, preparedness, response and recovery of health systems, pursuant to their own policies and legislation, provided that activities within their jurisdiction or control do not cause damage to their peoples and other countries. Sovereignty also covers the rights of States over their biological resources,” reads Article 4 of the Zero Draft. 

The text, as presented now, establishes what members “should,” “shall,” or are “encouraged” to do in the case of a health emergency. That is the norm for any international treaty, Gostin told us. The mandates, he said, have to do with international obligations, such as reporting of outbreaks, but not with domestic policies. And there are no enforcement mechanisms that would allow the WHO to keep member nations accountable — which is why critics have said the rules lack teeth. 

“The precursor to this draft, the conceptual zero draft, provides important ideas, including about equity, intellectual property rights, and benefit sharing. However, it contains little on holding countries accountable for the obligations they sign up to, suggesting instead that the governing body of the accord should agree to accountability measures after the accord is implemented,” health policy analysts wrote in a letter published in the Lancet. 

Emphasis on Equity, Cooperation

One of the main focuses of the Zero Draft is a more equitable distribution of pandemic-related products such as vaccines, therapeutics and diagnostics.

It proposes creating a WHO Global Pandemic Supply Chain and Logistics Network in response of a need for a more “adequate, equitable, transparent, robust, agile, effective and diverse global supply chain and logistics network.”

The network would, for example, determine the demand and build a reliable supply of pandemic-related products, as well as develop ways to ensure an equitable distribution. Among other things, the draft encourages nations to promote and incentivize transfer of technology and know-how for production of these products to “capable manufacturers” in developing countries. 

During a pandemic, measures include supporting temporary waivers of intellectual property rights to accelerate or scale up the production of products, such as vaccines. And to encourage holders of patents, especially manufacturers with public funding, to waive payments of royalties. 

The preliminary draft also states that members “shall establish” a global compensation mechanism for injuries resulting from vaccines. 

In addition, the Zero Draft proposes creating a WHO Pathogen Access and Benefit-Sharing System, a “multilateral, fair, equitable and timely system” for sharing of pathogens and genomic sequences in a “rapid, systematic and timely manner.” The benefits of this access should be shared, according to the draft. One of the options of doing that would be to give the WHO “real-time access” to 20% of the production of pandemic-related products so that it can distribute it to poorer countries — 10% of them as a donation and the other 10% at affordable prices.

Some of the other chapters propose measures for strengthening and sustaining health systems, particularly in developing countries, and to promote coordination, collaboration and cooperation. Article 17, for example, stipulates that member nations should strengthen pandemic and public health literacy and “tackle false, misleading, misinformation or disinformation.” 

All of these measures will be discussed during the fourth meeting of the intergovernmental negotiating body. At the opening session on Feb. 27, Dr. Tedros Adhanom Ghebreyesus, the WHO director-general, said that although there are divisions on some issues, negotiations should focus on addressing the gaps highlighted by the COVID-19 pandemic. 

“This pandemic accord should have all the lessons that we have learned from this pandemic. Because the key indicator should be that we should not repeat the same mistake again,” he said in his opening remarks, adding that to repeat them would “be unforgivable.”

Editor’s note: SciCheck’s articles correcting health misinformation are made possible by a grant from the Robert Wood Johnson Foundation. The foundation has no control over FactCheck.org’s editorial decisions, and the views expressed in our articles do not necessarily reflect the views of the foundation.

Sources

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Lei Ravelo, Jenny. “Pandemic treaty zero draft wins NGO approval, compliance will be key.” Devex. 2 Feb 2023. 

Mallapaty, Smriti. “What the WHO’s new treaty could mean for the next pandemic.” Nature. 7 Feb 2023. 

Jaramillo, Catalina. “‘WHO Has No Authority to Dictate U.S. Health Policy.’’ FactCheck.org. 25 May 2023. 

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Intergovernmental Negotiating Body. WHO website. Accessed 1 Mar 2023. 

Hanbali, Layth, et al. “Independent monitoring for the pandemic accord: a non-negotiable provision.” The Lancet. 31 Jan 2023. 

Imparato, Sergio, and Sarosh Nagar. ‘The WHO’s new pandemic treaty is good for the world — and the U.S.” Stat. 20 Jan 2023. 

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