The Silent Disintegration of Global Health Governance?

With an estimated 6,9 million deaths and with its enormous scale of economic, social and political collateral damages, the COVID-19 Pandemic has created excessive momentum for re-considering the rules and procedures governing global health – or has it? In this blog contribution, I will discuss the promises and pitfalls of current law-making and law-amending efforts that seek to strengthen pandemic governance post COVID-19 by reflecting on three distinct features of global health as an area of international cooperation. First, global health stands out as an area of international cooperation in which comparatively few binding international agreements have been adopted (in fact, to date, only two under the auspices of the WHO, the International Health Regulations/IHR and the Framework Convention on Tobacco Control and one, the TRIPS agreement, under the auspices of the WTO). Secondly, it is an area that is characterized by an incredibly pluralist (arguably complex and competitive) institutional landscape including intergovernmental as well as hybrid institutions governed by public and private actors. Thirdly, it is a policy field that has been marked by decade-long opposition to strengthening States’ obligations to guarantee economic and social human rights, including the right to health, by powerful state and non-state global health actors.¹⁾ These characteristics of global health governance, I will argue in the following, make global health susceptible to institutional experimentation. They heighten the chances for the adoption of yet another international agreement,  albeit one that will do little to remedy health inequalities and power asymmetries in the global health economic order.

The Pandemic as a magnifying glass

The COVID-19 Pandemic has served as a magnifying glass for the three features of global health mentioned above. It has exposed the weakness of international law as regards obligations of governments in health emergencies and possibilities to hold them accountable for their actions or, in fact, inertia; it has revealed that the many funds, public-private mechanisms (most prominently COVAX) and voluntary codes of conduct have failed to alleviate unequal access and protection of people in developing countries; and it has been accompanied by both vocal advocacy and strong contestation of framing health as a human right, in particular a matter of social and economic rights.

These painful lessons learned during the COVID-19 Pandemic have created tremendous hope that, for once, the vicious circle of “panic and neglect” that has marked earlier health crises could be broken. Once more, and similar to the HIV/AIDS epidemic as the first truly global international health crisis of the 21^st century, broad coalitions of state and non-state actors realized that the window of opportunity is wide open to re-negotiate the contours of the principles and rules governing global health politics and economics. This impetus is reflected in the fact that WHO Member States have, indeed, begun negotiations over an amendment of the IHR in parallel to their efforts of drafting and adopting an entirely new Pandemic Treaty. The repercussions of governments’ and international organizations’ failure to adequately protect the world’s population from death and disease during the COVID-19 Pandemic have also resulted in another round of fierce struggles over the appropriateness of international rules protecting intellectual property (and the profits this protection may generate) when these rules stand in the way of equal benefits from health innovations and the broadest possible access to life-saving medical products, particularly during health emergencies. Equity concerns stand out as probably the biggest stumbling-block for the timely adoption of a new pandemic treaty. The acknowledgement of equity as a broad guiding principle of pandemic response appears undisputed. Unsurprisingly, though, the concrete regulations and mechanisms suggested to turn that principle into practice – i.e. equitable systems for access and sharing of pathogens and access to medical countermeasures – are highly contested.

COVID-19: Exogenous shock or just another health crisis?

The three core characteristics of global health identified above constitute severe impediments to mending the deficiencies of existing rule-systems and institutions and going beyond narrow understandings of health security and pandemic control. Despite the incredible momentum for re-negotiating the principles and rules governing global health in the aftermath of the Pandemic, the sobering climate in which debates on amendments to the IHR and the Pandemic Treaty are being led makes one wonder if the COVID-19 Pandemic has constituted a veritable exogenous shock to the institutional system surrounding global health – or just yet another global health crisis?

Global health crises, particularly since the 1990s, have routinely re-ignited the ambition of WHO and WTO Member States as well as an exploding landscape of non-state actors surrounding them to revisit international agreements and intensify cooperation and coordination with regards to timely and effective disease surveillance, alert mechanisms and emergency responses. The 2003 SARS epidemic originating in China has resulted in a significant strengthening of WHOs’ emergency powers (REF). The HIV/AIDS catastrophe – with an estimated number of 40,4 million deaths [estimates between 32,9 – 51.3 million] –has also been a watershed moment in global health governance. It resulted in a significant strengthening of human rights and health equity norms, with the OHCHR adopting its “International guidelines on HIV/AIDS and human rights”. The magnitude of the HIV/AIDS epidemic and the desperate search for a truly global response (including massive financial resources) also resulted in an excessive opening-up of the WHO towards the corporate sector, with ever more public-private partnerships for global health forming in the late 1990s and early 2000s. But how are chances that WHO Member States will be able to significantly push forward their ability to collectively and effectively respond to disease outbreaks with pandemic potential after COVID-19 – and to keep death, disease and social, political and economic side effects to a minimum in case of future epidemics and pandemics? As it stands, international institutions relevant to pandemics have all responded with an appropriate and well-rehearsed reflex to the lessons learned from the pandemic: with an abundance of reviews and assessments, the creation of a new fund (World Bank), a high-level meeting (UN), and numerous proposals for ever more multistakeholder programs and “mechanisms”. In a benevolent vein, these activities might be portrayed as attempts to find the optimal institutions and policy-solutions for future global pandemics. From a critical viewpoint, they reflect the blunt intention of powerful global health actors like the US or the EU to maintain an institutional patchwork in which they can shift back and forth, depending on which institution is most responsive to their interests. So what are the chances that contemporary reform efforts in global health go beyond the business-as-usual institutional patchwork, towards a more integrated and equitable pandemic governance rather than a “chaotic landscape of geopolitical mess”?

Hope and despair: Contemporary geopolitics, institutional fragmentation and the sobering prospects for a profound transformation of global health governance

Looking to contemporary geopolitical struggles – that take place both outside and inside of long-standing international institutions such as WHO and WTO – prospects for a significant transformation of global health norms and rules are grim. International organizations, including the WHO, have never been merely technocratic, expert-led bodies, untainted with politics and power struggles. However, they have increasingly come under immense pressure, torn between the interests of financially powerful Member States such as the United States and China (and the fear of losing them) and living up to expectations of efficient and effective performance and problem-solution. Over time, the WHO, as the designated organization to realize “the attainment by all peoples of the highest possible level of health” (WHO Constitution), has also been confronted with fierce competition as regards alternative ways of health financing (World Bank, IFI etc.) and public-private modes of governance, many of which reflecting a philosophy of voluntary giving and charity rather than strong obligations to share and assist. Both of these developments have resulted in an ever more fragmented institutional landscape – in which routine prayers for more integration and harmonization seem to be a hollow formula, sometimes even endorsed by those very same actors who are most interested in disintegration and institutional competition.

Finally, the discussions leading to the “Zero Draft” of the Pandemic Treaty and those now taking place in the Intergovernmental Negotiating Board reflect the explosive and divisive nature of changing power constellations between North and South, including broad coalitions of countries from Asia, Africa and Latin America that advocate for greater equity and justice in the global health order. It is unsurprising that the transfer of the “common but differentiated responsibilities” principle to pandemic governance constitutes one of the most contested items on the INB agenda. It links an extension of global health norms towards health equity, human rights and benefit-sharing with the idea of international solidarity and support in the realization of these obligations. In fact, by now, tensions between countries and coalitions in the negotiations have become so high, “that an agreement by the target date of May 2024 is (…) unlikely”. The demands for deep transformation coming from a great number of governments and non-state actors that have been, traditionally, at the receiving end of a development-oriented vision of global health governance extend both to substantial norms such as equity, benefit-sharing and human rights as they extend to procedural norms on fair representation and voice in global health institutions. Major human rights organizations have repeatedly called to be fully included in the drafting process – to no avail. Unsurprisingly, thus, the current treaty draft only contains minimal reference to governments’ human rights obligations, also vis-à-vis the actions of private actors. If the rules and procedures for future pandemics will remain those most favorable to high-income governments and the corporate sector and fail to make concessions to the demands of coalitions advocating for reducing inequalities between powerful (health) economies and the rest of the world, global health institutions will once more jeopardize trust and faith on the part of major parts of the global population in their promise to realize the highest possible level of health for everyone everywhere.

Towards integration or disintegration?

The good news is that current rule-making efforts build on a strong consensus that the existing institutional architecture is dysfunctional and ineffective – and on strong expectations of a great many state and non-state actors that international cooperation and organization can be designed so as to prevent future health emergencies of the COVID-19 magnitude and save lives and livelihoods. The bad news is that the visions and wishes of a great many actors – and between various strong coalitions of actors – diverge considerably as regards the direction in which institution-building should move. The high hopes that the new Pandemic Treaty could become a comprehensive and at the same integrative treaty – drawing together security, trade, social policy, human rights, climate and development aspects of global health – appear unfounded in the light of the dynamics sketched above. More important still is the observation that some of the countries/governments with the greatest interests, financial capacity and expertise to shape global health norms and the current negotiations, inconsistently advocate for different philosophies and principles across international institutions.

Germany is a case in point. For a considerable time, it has aspired to be a powerful actor in global health acting within the confines of multilateral institutions. And it has certainly acquired a solid reputation as a relentless advocate for strengthening WHO (inter alia by being a driving-force in the recent WHO financing reform). Germany has also been open to demands for placing health equity and human rights concerns higher on the global health agenda, in part originating from its own, centuries-long experience with a well-functioning public health system. At the same time, though, Germany’s strong health industry places the country in the status-quo oriented coalition at the WTO that works against any profound changes in intellectual property regulation – a bone of contention that, for many observers, is (once more) the main impediment towards finding consensus on a new Pandemic treaty. Likewise, while the European Union has been a major advocate for a new Pandemic Treaty and a stronger integration of the various rule-systems governing global health, it has also acted primarily as a status-quo oriented negotiator that prioritizes the interests of high-income countries and will only agree to a transfer of technologies to Low- and Middle-Income Countries (LMICs) if these remain voluntary. Generally, countries and regions with the strongest pharmaceutical industries (US, EU, Switzerland) are working hard to keep questions of intellectual property out of the WHO and an exclusive terrain of legislation handled by the WTO.

Which way forward?

Global health governance is still firmly anchored in institutions belonging to the US-led post World War II and post-Cold War institutional order. In the contemporary geopolitical climate, the legitimacy of these institutions that arguably reflect a liberal international order is under attack from a great many directions. Commitment and stamina for a new pandemic treaty by governments at the receiving end of global solidarity, that perceive the US-dominated liberal international order as infused with injustice and inequality, will very likely peter out if a new Pandemic treaty does not embrace binding regulations that are meant to change deep-seated inequalities in the global health system. If contemporary efforts to change global health law are only meant to uphold the political and economic status quo pre-COVID 19, they will ensure financial and political support by already powerful WHO Member States. However, in that case they will be yet another episode in the silent disintegration of global health governance. Global health governance will probably undergo the usual post-pandemic adjustment strategies of both innovation through replacement and reform through repair, without substantively changing the political and economic parameters of global health.