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The case for an international pandemic treaty

BMJ 2021; 372 doi: https://doi.org/10.1136/bmj.n527 (Published 25 February 2021) Cite this as: BMJ 2021;372:n527

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Deeper thought, wider discussion needed to improve global governance of pandemics.

Dear Editor,

In their editorial, Nikogosian and Kickbusch propose the development of a global treaty to help prepare us for the next pandemic. [1 ] In making their case, they suggest using the World Health Organization Framework Convention on Tobacco Control (WHO FCTC) as a template for future action. We were all involved in the development of the FCTC; and while we concur that better intergovernmental collaboration is needed, we do not recommend emulating the FCTC in its current form.

Article 19 of the WHO constitution empowers the organization to make treaties. Yet, as Nikogosian and Kickbusch correctly state, the WHO was and is slow to use this authority. One of us (DY) has described the steps taken to overcome that opposition in the context of the FCTC. [2 ] This involved: building on 25 years of WHO resolutions related to tobacco control; developing a strong international NGO movement in support of the FCTC; engaging the World Bank and other parts of the UN family; and collaborating with governments from countries across the world.

In addition to the above, the FCTC succeeded because had a strong intellectual foundation, based on work by Ruth Roemer and supported by Allyn Taylor. Even with this solid grounding, the process was long and complicated, taking five years from conception to adoption. The treaty’s mere existence represents a major international achievement and should be acknowledged as such. Yet, as a tool for actually improving global health, the FCTC leaves much to be desired.

15 years since coming into force, the FCTC has inspired modest progress in some areas of tobacco control, but has been slow to tackle others. For example, the WHO has yet to address taxation measures that could drastically reduce smoking rates; and the FCTC has done little to support cessation and harm reduction among the world’s 1.3 billion current tobacco users. [3, 4] This reminds us that agreements reached in Geneva take time to be felt in communities across the world. The treaty-making process is inevitably slow. As such, we doubt that such a process is fit to address fast-moving pandemics.

The International Health Regulations (IHR), negotiated under Article 21 of the WHO Constitution, were designed for infectious disease outbreaks and have their roots in the earliest of international agreements. [ 5,6 ] Yet, the success of new regulation depends on strong and courageous leadership that can withstand pressures from powerful Member States. Directors General Halfdan Mahler and Gro Harlem Brundtland exemplified this kind of leadership. [7 ,8] Unfortunately, the current international political landscape does not lend itself to bold decision making at the WHO. Further, even the development of firm resolutions does not guarantee results. Unlike national law, international treaties hold no mechanism for assured implementation. Their success depends on moral persuasion, global consensus, and extraordinary diplomacy.

Moreover, the FCTC holds inherent weaknesses that should preclude it from forming the basis of a pandemic treaty. Careful reading of its text will reveal that “trade” only appears in the context of “illicit trade” and that the term “intellectual property” does not appear at all. There were reasons for this. At the time, intellectual property debates (e.g., related to HIV/AIDS, drugs, and other pharmaceuticals) required deep engagement with trade ministers and the world trade organization (WTO). Recognizing the complexity of such debates, the FCTC leadership opted to keep trade issues out of negotiations. As a gesture of compromise, the WTO issued a statement in support of the FCTC, with the implication that it might play a role in future trade disputes. [9]

The decisions regarding trade arose, in part, from the state of tobacco science, technology, and industry at the time. FCTC leadership did not consider the possibility that patents might be important for tobacco control because, at the time, tobacco companies were not seriously investing in reduced risk products worthy of patent protection. 20 years later, things have changed. Today, tobacco and e-cigarette companies lead innovation, patent filing, and technology development aimed at harm reduction. [10]

As such, the FCTC should be updated to address the role of intellectual property, as well as public-private partnership (PPP). Likewise, a pandemic treaty would require serious consideration regarding the role of industry, patents, and trade. Improving global pandemic readiness requires investment in better diagnostics, vaccines, treatments, and digital surveillance systems; and the private sector leads innovation in these areas. Any treaty in this area should thus emerge not just from the WHO, but from science, commerce, trade, and industry sectors of government. Indeed, comments from the incoming WTO Director General indicate that she views future pandemic response as falling within her brief. [11]

Before it can be used as a model for other treaties, the FCTC itself must be amended to better define the role of industry. For instance, Article 5.3 should be adapted to encourage PPP in ways that protect the WHO from conflicts of interest. [12] Further, this article should not be interpreted (as has been done in in the past) as justification to ban, boycott and exclude the private sector and affiliated scientists from engagement. The latest Edelman Trust Barometer shows that corporations are now far more trusted than governments in 18 of 27 countries surveyed. [13] These sentiments, combined with innovations coming from the private sector, suggest that industry will play a critical role in the future of both tobacco control and pandemic readiness.

Given ongoing geopolitical instability, an intergovernmental solution alone does not seem the most prudent way forward. Rather, we should strengthen mechanisms of the WHO’s existing IHR, with the goal of addressing technical aspects of pandemic preparedness. Simultaneously, we should build more robust PPP that leverages private sector innovation to equitably improve global health. [14 ] In the area of vaccinations, GAVI already uses this approach and now leads in delivering COVID-19 vaccines to low- and middle-income countries. [15 ]

When asked a few years ago whether more treaties were needed, Director General Brundtland suggested that the era of treaties was closing. [16 ] Though she led the development of several major international environmental treaties and protocols in the 1980s, Brundtland acknowledges that such treaties depended on strong support for multilateralism—something that does not exist today. [17] Like Nikogosian and Kickbusch, we believe that the mitigation of future pandemics requires serious attention. However, we also believe that these efforts should reflect current political realities and incorporate fresh, multisectoral approaches to global health.

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1 Nikogosian H, Kickbusch I. The case for an international pandemic treaty. BMJ 2021;372:n527.
2 Yach D. The origins, development, effects, and future of the WHO Framework Convention on Tobacco Control: a personal perspective. Lancet 2014;383:1771–9.
3 WHO. WHO report on the global tobacco epidemic 2019: offer help to quit tobacco use. https://www.who.int/teams/health-promotion/tobacco-control/who-report-on... (accessed 28 Feb 2021)
4 Yach D. Accelerating an end to smoking: a call to action on the eve of the FCTC’s COP9. Drugs and Alcohol Today 2020;20:173–89.
5 WHO. Constitution of The World Health Organization.
https://www.who.int/governance/eb/who_constitution_en.pdf (accessed 28 Feb 2021).
6 Gostin LO. International infectious disease law: revision of the World Health Organization’s International Health Regulations. JAMA 2004;291:2623–7.
7 WHO. Dr. Halfdan Mahler. Published Online First: 20 November 2017.https://www.who.int/medicines/areas/nextgen_essentialmeds/next_mahler/en/ (accessed 28 Feb 2021).
8 WHO. Dr Gro Harlem Brundtland, Director-General. Published Online First: 2 August 2011.https://www.who.int/dg/brundtland/bruntland/en/ (accessed 28 Feb 2021).
9 WTO Tobacco Agreement. https://www.wto.org/english/news_e/news03_e/sp_who_tobacco_agr_3march03_... (accessed 28 Feb 2021).
10 Understanding Nicotine. https://www.understandingnicotine.org/ (accessed 28 Feb 2021).
11 Zarocostas J. New WTO leader faces COVID-19 challenges. Lancet 2021;397:782.
12 WHO. Article 5.3 of the WHO Framework Convention on Tobacco Control. Published Online First: 20 April 2012.https://www.who.int/tobacco/wntd/2012/article_5_3_fctc/en/ (accessed 28 Feb 2021).
13 2021 Edelman Trust Barometer. https://www.edelman.com/trust/2021-trust-barometer (accessed 28 Feb 2021).
14 Gostin LO, Katz R. The International Health Regulations: The Governing Framework for Global Health Security. Milbank Q 2016;94:264–313.
15 Gavi, the Vaccine Alliance. https://www.gavi.org/ (accessed 28 Feb 2021).
16 Yach D, von Schirnding Y. Public health lives: Gro Harlem Brundtland. Public Health 2014;128:148–50.
17 UN World Commission on Environment and Development, ed. Report of the World Commission on Environment and Development: Our Common Future. Oxford: Oxford University Press, 1987.

Competing interests: Disclosure Statement: Derek Yach is President of the Foundation for a Smoke-Free World (FSFW); Ehsan Latif is Vice President of Grant Management and Stakeholder Engagement at FSFW; and Chitra Subramaniam is an FSFW consultant. The Foundation is an independent, US nonprofit 501(c)(3) private foundation whose mission it is to end smoking in this generation. The Foundation accepts charitable gifts from PMI Global Services Inc. (PMI); pursuant to the Foundation’s Bylaws and Pledge Agreement with PMI, the Foundation is independent from PMI and the tobacco industry.

02 March 2021
Derek Yach
President, Foundation for a Smoke-Free World ; Former Cabinet Director and Executive Director for Noncommunicable Diseases and Mental Health, World Health Organization
Ehsan Latif, Vice President, Grant management and Stakeholder Engagement, Foundation for a Smoke-Free World; Chitra Subramaniam Founder, CSDconsulting.
Foundation for a Smoke-Free World
Connecticut, US