Photo Credit: US CDC – Tohoun Aplahoue
Kevin A. Klock, JD (corresponding author)
Foundation for the National Institutes of Health
O’Neill Institute for National and Global Health Law, Georgetown University Law Center
11400 Rockville Pike, Suite 600
North Bethesda, Maryland 20852, USA
Lawrence O. Gostin, JD
O’Neill Institute for National and Global Health Law, Georgetown University Law Center
Sam F. Halabi, JD, MPhil
Colorado School of Public Health, Colorado State University
O’Neill Institute for National Global Health Law, Georgetown University Law Center
Beginning on 29 November 2021 the World Health Assembly (WHA) will debate the merits of a WHO pandemic convention, which could set in place “an overarching framework … needed for strengthening global health security” (1). Meanwhile, a critically important regional instrument – the Treaty for the Establishment of the African Medicines Agency (AMA Treaty) – entered into force on 5 November (2). The new agency will, among other things, ensure there is a “common framework” for addressing “emerging issues and pandemics in the event of a public health emergency on the continent with cross border or regional implications…” (3).
An improved worldwide health security strategy is essential but global mechanisms should complement without undermining effective regional, national, and sub-national approaches. Consequently, WHA decision-makers should carefully consider the scope of a potential global convention and make deliberate choices as to the content that requires truly worldwide coordination while incorporating and enhancing fit for purpose regional, national, and local strategies.
Legitimacy and the Case for Local Input
State actors have a responsibility to promote “deliberative governance,” meaning that the persons and institutions affected by policy should have the opportunity to genuinely input into its design (4). Given the inequities experienced in low and lower-middle income countries (LMICs), and the many marginalized communities within them, deliberative governance requires that these perspectives sit at the core of a revised preparedness and response framework. Moreover, the most successful global health initiatives of the 21st century have put LIMC voices front and center of their strategies and methods (5,6).
This is one reason why in October-November 2021, the O’Neill Institute for National and Global Health Law and the Foundation for the National Institutes of Health (FNIH) convened a series of meetings of leaders from Asia, Africa, and Latin America representing academia, science, civil society, and regional institutions to explore the pandemic-related gaps experienced in their communities and to seek their recommendations for better preparedness, improved response, and a more equitable future (7).
Calibrating the optimal mix of global, regional, and local response was a recurrent theme across regions, disciplines, and perspectives. Success was not defined by the ratification of a convention, but improved outcomes for the populations they serve. Coupled with an optimism that a global treaty could result in a more intentional, less chaotic, and better harmonized approach was a skepticism that an instrument, crafted geographically and metaphorically far away from their communities, would have a meaningful effect. A palpable sense to “do no harm” emerged.
Many experts highlighted regional initiatives that had bubbled up to fill gaps in governance. For instance, “the lack of availability of medicines and vaccines during public health emergencies of international concern” served as one justification for the AMA Treaty (3). In addition, the Inter-American Health Task Force chaired by Julio Frenk and Helene Gayle reported that “Advantage should be taken of regional or subregional integration mechanisms to join forces and share experiences in epidemic prevention and control of future or existing diseases that could threaten people’s security, particularly the most economically marginalized” (8).
The regional and local leaders in our meetings provided compelling justifications for these approaches, while also supporting a global instrument. A pathogen will not affect all areas of the world equally, either because of socio-economic factors (such as the sophistication of a health system to cope with a particular threat) or scientific ones (such as how a specific disease spreads). They argued that neighboring countries are likely to experience a similar set of issues and thus might wish to deploy a similar and scaled response. Administrative, cultural, and public health leaders within a given region often develop rapport nurtured through working together on a variety of issues. Also, informal transnational networks frequently develop through common regional ties.
The balance between global and regional is not the only one to consider. Many experts pointed to the challenges that exist within their own countries, particularly the disconnect experienced between policymaking at the national level and implementation on the front lines. Moreover, local community and faith leaders often have more messaging credibility within certain communities than do distant or obscure public health authorities.
Even as regional leaders remain focused on COVID-19 response, they directed most of their commentary during our consultations on preparedness for the next pandemic. Health systems capacity remains a vexing issue from procuring adequate tools for disease surveillance and retaining sufficiently-experienced health staff to improving public health communication strategies and maintaining the political will between pandemics to plan and invest. Flexibility in approach that is context-conscious is crucial and a global convention should be crafted to enhance and share bespoke strategies.
Enabling Local Response Through a Global Instrument
The capabilities and resources required to enable local response will vary from region to region. Nevertheless, the following approaches will augment deliberative governance and, consequently, the efficacy of a global instrument:
Make Deliberate Choices. Attempting to incorporate every aspect of pandemic preparedness and response into a single global instrument is untenable, meaning member states will invariably need to make choices on what to legislate. Content selection criteria must be “altitude” appropriate, by analyzing a potential area and deliberately evaluating whether the matter is ripe for consensus and alignment at the global level or reserved for more localized decision-making. For example, vaccine hesitancy is a challenge all over the world, but the methods for mitigating it may vary from place to place.
In addition, policy-making might be ideally placed at one level of response but operationalized at another. A convention should consider how the policy-makers and the implementors symbiotically provide and incorporate feedback to one another. Further, if a global treaty locates policy-making of certain issues at the global level, tangible and clear enacting provisions must be present to allow the WHO Secretariat and regional actors to effectively implement them, apply learnings, make changes where warranted, and transmit learnings up the chain.
Create Room for Flexible Protocols. Supporting the diversity of effective regional and local responses will require sophisticated framing of the instrument. Treaties that go beyond mere declarations must have provisions that will ignite positive change, understanding that they are extraordinarily difficult to update as scientific understanding improves and new circumstances arise (9). Local and regional leaders are often in a better position than global officials to evaluate what works and what does not in their areas. Thus, policymakers could set-up a framework for regional institutions to develop protocols that address a defined constellation of issues. Each region could determine its protocol’s provisions for entry into force (and revision) under harmonization procedures set by the global convention.
Enhancing Communications and Coordination. While improved access, compliance, and financing are part of the content debate, improved communication and coordination networks are ripe for supporting regional and national responses. The Inter-American Health Task Force stated that the “pandemic has shown that much stronger and better coordinated global action is needed to improve preparedness and response” (8). The European Council echoed this sentiment (10).
Moreover, WHO has comparative advantages for serving as a global coordinator where in other areas, its advantages are less clear. There are several ways to make tangible contributions to regional coordination from shoring up communication networks between and among WHO and regional institutions to maintaining an open-access repository of effective public health interventions and methods. It is critically important to position WHO to deploy its strengths rather than lever up this under-resourced institution with unfamiliar new responsibilities.
The path to an effective, game-changing global convention is uncertain, despite a compelling justification for improved global health governance. The voice of those deeply engaged in their regions and localities and trusted by the people they serve, are essential to getting this right. A global regime that enhances these voices and their strategies could meaningfully affect the lives of the many people counting on the success of this initiative.
Disclaimer: The views in this article are those of the authors and do not necessarily reflect the views of the FNIH.
- Gostin LO. Global Health Law. Cambridge: Harvard University Press; 2014. 26 p.
- O’Neill Institute for National and Global Health Law and the Foundation for the National Institutes of Health. Legal tools for pandemic preparedness: WHO collaborating center support for new coordinating mechanisms. Washington: O’Neill Institute for National and Global Health Law and the Foundation for the National Institutes of Health; 2021 Nov [cited 2021 Nov 16]. Available from: https://oneill.law.georgetown.edu/wp-content/uploads/2021/11/ONL_Pandemic_Prep_D1_P5.pdf
- Klock KA. The soft law alternative to the WHO’s treaty powers. Geo. J. Int’l L.. 2012;44:826.