To Bind or Not to Bind

While the majority of the contributions to this blog symposium tackle issues of global justice, distributive justice and the impact of a decolonial perspective on global health law, our approach might seem to stand out at first sight: Our contribution is interested in the legal form the new Pandemic Agreement will take. Attention to the formal dimension of the reform process might seem remote from the substantive issues of the other contributions. However, we would like to argue in this short piece that the decision for a certain legal architecture can very well have repercussions on the question to what extent the new instrument can deliver on its promise to pursue equity and hence to arguably overcome divisions still entrenched in the international community.

Legal Form in the Pandemic Reform Process: A Brief Look Back

At the outset of the current reform process, the precise legal form of the prospective new pandemic agreement was deliberately left open. The WHO Constitution (1948) offers three possible avenues in that regard: First, Art. 19 WHO-C envisages the adoption of conventions or agreements, i.e. legally binding treaties within the meaning of Art. 2(1)(a) VCLT that are subject to national ratification. Second, Art. 21 WHO-C confers on the World Health Assembly (WHA) the authority to adopt legally binding regulations concerning specific subject areas, which, pursuant to Art. 22 WHO-C, come into force for all WHO Member States without the need for ratification if they do not actively opt out. Finally, Art. 23 WHO-C allows for non-binding recommendations to be addressed at Member States.

In its December 2021 decision establishing the intergovernmental negotiating body (INB) for the new agreement, the WHA referred in general terms to a “WHO convention, agreement or other international instrument on pandemic prevention, preparedness and response” (WHA Decision SSA2(5) of 1 December 2021, pp. 6-7) to be negotiated. While the adoption as a legally binding treaty under Art. 19 WHO-C was explicitly mentioned in this decision, the WHA left the final say on the question under which of the relevant provisions of the WHO Constitution the agreement would eventually be adopted to the INB (see operative para. 1(3)). At its second meeting in July 2022, the INB decided that the new agreement would indeed be negotiated with a view to adoption under Art. 19 WHO-C, i.e. as a formal treaty, but would contain both legally binding as well as non-legally binding elements (see Report of the Second Meeting of the INB, WHO Doc. A/INB/2/5 of 21 July 2022, para. 4).

Following the Paris Precedent: Informal Aspects of the Draft Agreement

Our analysis of the most current draft text at the time of writing, the “Proposal for negotiating text of the WHO Pandemic Agreement” (WHO Doc. A/INB/7/3 of 30 October 2023) is guided by two main considerations: First, we observe that the Pandemic Agreement is likely to transcend binary categories of bindingness vs. non-bindingness. Second, in this approach we see a continuity with the Paris Agreement and its highly flexible structure of obligations.

To the first point: Rather than employing a binary distinction between legally binding and non-legally binding elements, the Draft Pandemic Agreement can be fruitfully analysed along the lines of the concept of output informality as conceived by the Informal International Lawmaking (IN-LAW) project. This approach sheds light on the varying degrees of (in-)formality that are reflected in the current draft. Central to this notion of output informality is that a provision, despite lacking certain formal elements and potentially not being legally binding in a strict sense, still carries a certain degree of normativity, i.e. is nevertheless intended to steer behaviour or determine the freedom of relevant actors.

Second, and building on this consideration, the draft Pandemic Agreement shares certain similarities with the approach taken in the Paris Agreement (2015), which at the time embodied a novel approach to international law-making. As Lavanya Rajamani has demonstrated, the Paris Agreement combines various hard, soft and non-obligations in a way that causes the boundaries in-between those different elements to blur. The structural setup of the draft Pandemic Agreement in some respects resembles this mixed legal structure.

Art. 17 of the Draft Agreement is a case in point. The provision is concerned with adopting a whole-of-government and whole-of-society approach in preventing, preparing for and responding to pandemics at the national level. However, Art. 17(1) merely “encourages” Parties to adopt a whole-of-government and whole-of-society approach and ensure community ownership, entailing a rather soft obligation. The following sections of the provision detail specific measures to be taken as part of such approaches. They are introduced with the operating term “shall”, respectively, and thus imply a stronger sense of bindingness than the term “should” would have. Yet, all of these sections also include language such as “in accordance with national context” (Art. 17(3) and 17(4)) or “take appropriate measures” (Art. 17(6)), which then again deprives these provisions of some of their normative value.

As the draft currently stands, the “appropriateness” of measures and approaches generally seems to have been left to the future Parties to determine, often depriving the Pandemic Agreement of a concrete normative yardstick against which states’ behaviour could be measured. The qualifying term “as appropriate” alone emerges 19 times throughout the Draft Agreement. Strikingly, Art. 20, which deals with the crucial aspect of financing efforts to strengthen pandemic prevention, preparedness and response under the Agreement, holds that a State Party shall cooperate with other Parties (only) as appropriate to raise financial resources for the effective implementation of the Agreement.

The particular structural setup of the obligations contained in the Draft Agreement is also reflected in its Articles 9-11, which deal with research and development of pandemic-related products, their sustainable and equitable production, and the transfer of technology and know-how in this area of pandemic preparedness and response. Together with the “WHO Pathogen Access and Benefit-Sharing System” (PABS) contained in Art. 12, these provisions are arguably at the heart of the Agreement’s efforts to translate the principle of equity into practice. However, despite equity featuring prominently as a general principle in Art. 3(2) of the Agreement, Articles 9-11 then contain only quite soft obligations: Art. 9(3)(a)(i), for example, reads: “The Parties shall, in accordance with national laws and regulatory frameworks and contexts, take steps to develop and sustain strong, resilient and appropriately resourced, national, regional and international research capabilities. To this end, [they] shall increase clinical trial capacities, including by building and maintaining a skilled research workforce and infrastructure, as appropriate”. Similarly, other sections of Articles 9-11 only “promote” or “encourage” state Parties to take action. This has also been criticised by Helen Clark, Former Co-Chair of the Independent Panel for Pandemic Preparedness and Response, in her submission to the INB.

These are but a few examples from the draft Pandemic Agreement, which contains even more provisions with a similarly diluted legal character. In view of these structural resemblances in the draft, it seems reasonable to assume that the legal structure of the Paris Agreement indeed served as an example in the negotiations for the setup of the new Pandemic Agreement. This is all the more plausible given that background information the INB Secretariat has conveyed to the body for its decision under which provision of the WHO Constitution the Pandemic Agreement should eventually be adopted explicitly refers to the Paris Agreement as an example of recent practice that could be followed in the negotiations for the Pandemic Agreement, as well.

As we are analysing the proposed negotiating text and not the final Agreement, a word of caution might be necessary at this point: It is apparent from the current draft that for the substantive content of its provisions to be fully operationalised and brought to fruition, many decisions have yet to be made. For example, Art. 8(4) of the Draft Agreement leaves the establishment of the Global Peer Review Mechanism, which will be tasked with monitoring State Parties’ efforts to strengthen their pandemic preparedness, to a decision of the Parties to be taken no later than 31 December 2026. This structure presents a challenge: To a certain degree, such references to future decisions fleshing out the substantive parts of the Pandemic Agreement in more detail might simply be unavoidable given the Agreement’s framework character. However, states should be wary of leaving too many of the central aspects of the Pandemic Agreement to future negotiations, as these come with the risk of diluting the obligation structure yet more.

Ensuring Broad Participation at the Cost of Perpetuating Existing Power Imbalances?

Why have the Member States represented in the INB chosen this approach? The overall aim seems to be ensuring a broad participation in the agreement and its implementation. With respect to the negotiation of the Paris Agreement, Felix Lange has shown that the United States, for instance, have used their domestic constitutional setup as a bargaining tool so as to ensure that no treaty language made its way into the Agreement which would require the US Senate to give “advice and consent”.  Rather, the more flexible structure of obligations under the Paris Agreement allowed for the Agreement to be treated as a “sole executive agreement”. The future Pandemic Agreement concerns a similarly controversial topic, especially in the light of the current highly polarized political situation in the US. It is therefore not entirely unlikely, even if impossible to establish in terms of causality, that the obligations in the Pandemic Agreement are again framed in a flexible manner so as to enable the United States to join this Agreement.

While certainly understandable and potentially also commendable in order to ensure a broad backing of the new Agreement, the question must also be asked as to what price this approach will entail. We have at least three concerns here:

First, informality comes at a price as it privileges powerful actors in negotiation situations, as Alejandro Rodiles has demonstrated. Whereas strong states will be able to tailor their later implementation of and compliance with the Pandemic Agreement in line with their red lines from domestic constitutional law, less powerful states may face stronger pressure to live up to the commitments from the formally flexible, but materially still aspirational and strong document. Informality in practice can often mean that the strong cannot be coerced into doing something while the less strong can be more readily persuaded to implement the non-binding elements of the Agreement so as to live up to expectations of good health governance.

Second, one might question what promise an international agreement holds which leaves it mostly to the parties to decide how to implement it. The overall results of the Paris Agreement approach are certainly mixed, as the recent first Global Stocktake at COP 28 in Dubai has shown. Inherent to the flexibilisation of the obligation structure is the risk of diluting the normativity of the substantive commitments, thereby also endangering the distributive justice aspirations of the new Agreement.

And third, there is a political risk that this potentially meagre effect of a new Agreement has been accepted without any palpable and sustainable gains. With the spectre of a return of Donald Trump to the US presidency it is not hard to imagine that a second Trump administration would not only terminate US membership in the Paris Agreement once again but could also withdraw from the new Pandemic Agreement of the WHO, an instrument which would be an easy target for a political movement which largely buys into conspiracy narratives about the WHO and its alleged health dictatorship. States should therefore ponder what will be gained from pursuing a flexible and informal approach for the new Pandemic Agreement.

Conclusion

Commenting on the legal form of the future Pandemic Agreement is subject to many uncertainties. The future negotiation process may prove us wrong, and states might still settle on a binding document which does away with many of the softly worded provisions. However, this seems to be unrealistic and the current draft evinces some concerns. While the Agreement may well serve as a starting point for a more constant and systematic engagement with pandemic prevention, preparedness and response on the part of political decision-makers, its impact can be severely compromised by the turn to informality which is written into its provisions. “To bind or not to bind” – it is not easy to give a straightforward answer to this question so far. Yet, it seems as if the new Pandemic Agreement will cloak substantive informality in the guise of legal formality. If the eventual Agreement will follow this pattern, the burden on states will be all the greater to bring the substantive ideas embodied in the Agreement to life. This will apply, in particular, to considerations of equity and distributive justice – the implementation of which will depend on future negotiations in which powerful states might have the upper hand.