Considerations of integrity, Good Governance and equity relevant to the formulation of a new treaty on pandemics

By Dr. Dayanath Jayasuriya*

Background

No sooner public health and human rights advocates welcomed the lifting of restrictions relating to COVID by the Chinese authorities, news soon spread across the globe of a new wave of COVID infections in certain parts of China. Alarming as it was, further news that the Chinese can travel abroad and foreign visitors can enter China without checks sent a chilling message to WHO and member states that another global pandemic might be imminent, possibly exposing millions of currently unaffected people.

We continue to ask China for more rapid, regular, reliable data on hospitalizations and deaths, as well as more comprehensive real-time viral sequencing. WHO is concerned about the risk to life in China and has reiterated the importance of vaccination, including booster doses to protect against hospitalization, severe disease and death. This is especially important for older people, those with underlying medical conditions and others who are at higher risk of severe outcomes. On January 5 the Director-General of WHO remarked that:

“With circulation in China so high and comprehensive data not forthcoming, as I said last week, it is understandable that some countries are taking steps they believe will protect their own citizens. This data is useful to WHO and the world and we encourage all countries to share it. Data remains essential for WHO to carry out regular, rapid and robust risk assessments of the current situation and adjust our advice and guidance accordingly.”

The New York Times of January 11 reported that “In Shanghai last week, local health officials said that up to 70 percent of the city’s 26 million residents had been infected, and they expressed confidence that its Covid outbreak had peaked”.

Integrity

It is incumbent on all nations to ensure the integrity of the health system and willingness to share accurate data and projections. Even though tourism and trade may get affected, nevertheless one cannot be oblivious to the fundamental duty to make prompt disclosures and specially to respond to queries from the WHO.

In the context of the three international drug control treaties, it is significant to note that the failure to provide adequate and truthful data and noncooperation can eventually lead to the imposition of economic sanctions by the principal organs of the UN.

Good Governance

Closely inter-related to the concept of integrity is good governance. Within the national administration, important and binding treaties need to be approved by the supreme legislature and accordingly steps must be taken to ensure that the relevant line ministries create the necessary administrative apparatus to comply with treaty obligations. The International Narcotics Control Board is vested with wide powers to conduct country missions to check on due compliance and make binding recommendations for remedial measures.

Good governance at the global level presupposes that mutual cooperation is indispensable for the welfare of humanity and that countries that lag behind in fulfilling their international obligations should face “a name and shame” sanction.

Equity

‘Equity’ is a philosophical concept which is well grounded in public policy and human rights. Dimensions of equity include distributive justice, social justice and fairness. Equity does not necessarily mean equality. Equity demands that there must be a robust system of meeting unmet needs without unfair discrimination and unjust means. In the allocation of resources a needs-based approach must be taken.

During the initial operations of the International Financing Facility for Immunization (IFFIMCo) it was realized that the primary objective of vaccinating every eligible child cannot be met unless funds are provided for the strengthening of the health care system. Unmet needs of the health care system must be identified to enable resources to be allocated on an equitable basis.

In the specific context of a pandemic treaty, equity comes into play in a number of ways and situations:

Absence of stigmatization or isolation based on test results or nationality or arrival and/or departure locations;

Allocation of resources where resources are much needed;

Fair access to testing, medication, treatment options etc.

No discrimination in matters of admission to educational institutions, to social or health insurance, employment etc.

No discrimination in burial or cremation of deceased persons based on religious belief.

The treaty must strike a delicate balance between necessary and unnecessary; fair and unjust; and, avoidable and unavoidable differences in the way the treaty obligations are meant to apply for health-related interventions.

Liability Issues

Liability of countries or particular agencies with health-related responsibilities is an issue that needs to be addressed in a pandemic treaty. “The polluter” pays concept in international environmental law can be extended with suitable adaptations to determine liability caused to a country or even an individual due to suppression of critical information leading to the contraction of the virus. A dispute resolution mechanism can be built-into the treaty that might help to establish guidelines of liability and related damages in the event there is a proliferation of litigation in different parts of the world. During the height of the HIV/AIDS pandemic, French courts imposed jail sentences on a health minister and some senior health ministry officials for not compulsorily testing blood products from the USA.

Funding mechanisms

Unlike at the time the initial international health regulations were formulated, WHO’s ability to make meaningful national interventions, working in tandem with international development agencies, would require considerable funding. The IFFIMCo. model, designed for infant and child vaccination, that has successfully worked for over a decade with spectacular results in front-loading national efforts, is a useful mechanism for an international pandemic relief financing project.

Conclusion

Ensuring the satisfaction of equity considerations is best accomplished where integrity is embedded in the national accountability system and is an essential ingredient of prevailing norms of good governance.

*Dr. Dayanath Jayasuriya has been a health lawyer since 1973 and in recognition of his legal services he was conferred the title of “President’s Counsel” and was a member of the WHO Expert Committee on Cancer for three years. He was associated with a number of units in WHO headquarters for nearly eight years and since then has held positions as Legal Advisor to the Intentional Narcotics Control Board in Vienna; Chief Technical Advisor to the UN International Drug Control Programme; UNDP Regional Adviser on HIV and Development for Asia and the Pacific; and Head UNAIDS Secretariat in Pakistan. He is a founder Director of IFFIMCo- the third largest charity in the U.K.- and has served as Chairman of the Securities and Exchange Commission and the Insurance Board of Sri Lanka. He is a Distinguished Visitor at the Georgetown University O’Neill Institute on Global Health Law.