Recent negotiations on the proposed WHO Pandemic Agreement suggest that the Intergovernmental Negotiating Body (INB) will need more time to reach consensus on critical issues within the international legal framework for pandemic preparedness and response. Key topics, including one health and pathogen access and benefit-sharing, remain under discussion.
One approach to ‘supplementing’ the Pandemic Agreement is to adopt additional protocols at future conferences or meetings of the parties. protocols may face prolonged negotiation timelines, with the risk of fragmenting pandemic-related legal obligations if all parties do not ratify them. To mitigate the risk of further fragmentation and delay, WHO Member States may instead update the Pandemic Agreement at a later point in time by incorporating new annexes to it. Since annexes will be an integral part of the main Agreement, any changes or additions to them would be governed by the amending procedures specified in the Agreement.
Amending clauses in international treaties vary significantly, often in how amendments are proposed, adopted, accepted, and made binding on parties. These clauses are crucial to how a treaty can evolve over time. A well-crafted amending framework would allow WHO Member States to conclude current negotiations with confidence, knowing the Agreement can be updated in the future to reflect shared obligations. At the 12th INB meeting from November 4–15, WHO Member States have the opportunity to reassess the Pandemic Agreement’s amending clauses to strike this balance. Key strategies for a robust framework might include (1) establishing a dedicated amendment process for annexes, (2) developing a simplified procedure for annex-specific changes, and (3) linking the Agreement’s future to the timely development and ratification of future annexes.
The current amending formula in the Agreement
The framework for amendments under the latest draft of the Agreement closely borrows from the provisions of the WHO Framework Convention on Tobacco Control (FCTC), as well as other multilateral environmental treaties.
Under Article 29(3) of the Agreement, every effort must be made to adopt amendments by consensus at a Conference of Parties (COP). If every effort at consensus has failed, amendments may be adopted by a three-fourths majority of the parties present and voting at the COP. While it is common to negotiate amendments at a review conference, the three-fourths majority requirement is higher than that the two-thirds majority requirement found in the residual rules of the 1969 Vienna Convention on the Law of Treaties.
After the amendments are adopted, parties can formally accept amendments by submitting a ratification, approval, or acceptance instrument to the Depositary. According to Article 29(4), the amendments to the Agreement will only enter into force 90 days after at least two-thirds of the parties have submitted their acceptance. At that point, the amendments will only become binding on parties that formally accept the amendments.
The amending formula that currently exists under the Agreement allows amendments to be proposed, negotiated and entered into force with flexibility. But if some states can choose not to be bound by the amendments, then the annexes will do no better than protocols in avoiding a patchwork of legal obligations across states.
Establish a dedicated amendment procedure for annexes
Moving away from the precedent of the FCTC, WHO Member States could benefit from establishing a separate amendment clause for annexes. By separating the amendment procedures for annexes from those governing the rest of the agreement, parties could establish a more streamlined approach for proposing, adopting, and bringing annexes into force.
This approach is common in treaties dealing with scientific or technical subject matter, such as environmental or disarmament treaties. In these cases, the basic principles of a regime tend to be subject to stricter and more formal amending rules, while more technical and detailed provisions, such as annexes, are amended by means of more flexible procedures.
The Basel Convention on the Control of Transboundary Movements of Hazardous wastes and their Disposal (Basel Convention) offers an example of a dedicated annex adoption and amendment procedure. Article 17 of the convention sets out a general amending process not unlike that currently seen in the draft Pandemic Agreement. Proposed amendments are adopted by a three-fourths majority vote of the parties present and voting at a session of the COP. These amendments enter into force 90 days after three-fourths of the parties have submitted instruments of acceptance to the depositary and bind only the parties that have accepted them.
However, Article 18 of the Basel Convention establishes a distinct procedure for the development of new annexes and the amendment of existing ones. Annexes or amendments to annexes can be adopted by the same rules as under Article 17 but become binding on all parties unless a party opts out explicitly within six months after the annex (or amended annex) is circulated. To streamline the adoption and amendment of annexes to the Pandemic Agreement, Member States should consider creating a simplified amending procedure specifically for these components. We turn to examples of simplified amendment procedures next.
Develop a simplified amending procedure for annex-specific changes
A simplified amending procedure for annex-specific changes would allow the entry into force of adopted amendments for all parties once certain conditions are met, such as the passage of a defined period as in the International Convention for the Safety of Life at Sea, the attainment of a threshold number of parties submitting instruments of acceptance as in the case of the Montreal Protocol on Substances that Deplete the Ozone Layer, or a combination of these criteria. Additionally, some amendments could take effect after a defined period if there is no objection from a specified number of parties during that time. For instance, under the North-East Atlantic Fisheries Convention, the North-East Atlantic Fisheries Commission can adopt ‘recommendations’ by majority vote, with these recommendations becoming binding on all parties who do not object. If, however, three or more parties object, the recommendations will only be binding on the parties that agree to be bound between themselves.
A simplified amending procedure may still include an explicit ‘opt-out’ provision to safeguard the sovereign interests of individual parties. In the example of the Basel Convention above, differential obligations are possible, allowing a party to decline an adopted amendment. However, the default presumption is that the amendment enters into force for all, thereby promoting coherence within the treaty framework.
‘Opt-out’ amendment clauses that apply to all parties are not without precedent in legally binding agreements under the auspices of the WHO. Under its Article 73, the WHO Constitution itself proposes that amendments be communicated to Member States at least six months before the Health Assembly’s consideration. Once adopted by a two-thirds vote in the Assembly and accepted by two-thirds of the Members, these amendments “come into force for all Members.”
The 2005 International Health Regulations (and the Regulations as amended by the 77th World Health Assembly) similarly set opt-out procedures for the entry into force of amendments, owing to their unique status as ‘regulations’ adopted under Article 21 of the WHO Constitution. The Pandemic Agreement, however, does not need to be adopted under Article 21 to justify a simplified amending procedure for its annexes. Simplified amending procedures based on tacit consent and opt-out mechanisms are common across different fields of law.
Mandate the future of the WHO Pandemic Agreement on the negotiation of its annexes within a deadline
Ultimately, it is up to WHO Member States to determine how difficult the amending process of the Pandemic Agreement should be. While no amendment formula can guarantee that states will negotiate future annexes promptly and without risking further fragmentation of their obligations under the Agreement, certain mechanisms can foster cooperation and ongoing dialogue, such as clauses that commit parties to negotiate additional annexes.
To incentivize swift progress towards the negotiation of annexes, the long-term viability of the Agreement could also hinge on the successful development of these annexes. An “exploding” sunset clause could mandate the Pandemic Agreement’s termination unless specified annexes are negotiated within a generous but defined timeframe, creating a firm incentive for further negotiations. This approach was taken in the yet-to-be-operationalized World Trade Organization Agreement on Fisheries Subsidies,. With this approach, parties could begin to establish the ecosystem of the Pandemic Agreement and foster the linkages between the Pandemic Agreement and the International Health Regulations, all while building trust in the Pandemic Agreement’s COP.
Conclusion
As the world grapples with the realities of pandemic preparedness and response, the ongoing negotiations surrounding the WHO Pandemic Agreement present a crucial opportunity for Member States to redefine their commitment to collective action in health emergencies.
The incorporation of flexible, streamlined processes for amending annexes will not only facilitate swift adaptation to emerging threats but also strengthen the integrity of the Pandemic Agreement as a cohesive legal instrument. Ultimately, the success of the WHO Pandemic Agreement will depend on the collective will of Member States to craft an amending framework that reflects their shared commitment to global health security. Although amending formulas are often under-studied, they should be considered key to a robust and thriving pandemic agreement architecture.
