18 May Getting Ready for Next Time: The Work of the Independent Panel for Pandemic Preparedness and Response
[Chester Brown is a Professor of International Law and International Arbitration, University of Sydney Law School; Alvin Yap, Ryce Lee and Rachel Tan are all LLBs from the National University of Singapore.]
The WHO-led mission to investigate the zoonotic source of the COVID-19 virus and its introduction to the human population has attracted considerable international attention, most recently on the team’s press briefing disclosing inconclusive preliminary findings and in subsequent criticism of the team’s work. By contrast, the interim findings of another WHO-initiated inquiry have received a comparatively muted response. On 19 January 2021, the Independent Panel for Pandemic Preparedness and Response (the “Panel”) presented to the WHO Executive Board its “Second Progress Report”, which is its first substantive report on its inquiry into the international response to the COVID-19 pandemic. While the Panel’s inquiry is still under way, it has submitted the Second Progress Report as an interim report consistent with its commitment to “work in an open and transparent fashion”. This post provides some observations on the Panel’s findings as well as its working methodology as reflected in that report, and looks to the future as the Panel looks to publish its final report in May 2021.
At the 73rd World Health Assembly convened on 18 and 19 May 2020, WHA Resolution 73.1 was adopted by consensus of all 194 Member States. WHA Resolution 73.1 called for various actions to be taken in connection with the COVID-19 pandemic. In particular, the Panel was established pursuant to paragraph 9(10) to conduct an “impartial, independent and comprehensive evaluation” of the international health response, including WHO’s response, to COVID-19.
The Panel is co-chaired by former Prime Minister of New Zealand, Helen Clark and former President of Liberia, Ellen Johnson Sirleaf, and includes 11 other members with skills and expertise in infectious diseases, global and national health policy and financing, outbreaks and emergencies, economics, youth advocacy and the wellbeing of women and girls.
As set out in the Panel’s Programme of Work prepared in October 2020, the Panel is conducting four interconnected themes of inquiry, namely: (a) building on the past by studying previous pandemics and the status of the system and actors pre-COVID-19; (b) reviewing the present by developing an accurate and verified chronology of events and activities in relation to the COVID-19 pandemic; (c) understanding the direct and indirect impacts of both the pandemic and the response measures; and (d) developing a vision for a reformed international system equipped for pandemic preparedness and response.
The Second Progress Report comprises 34 pages and deals with the four themes as set out above. Overall, it demonstrates the Panel’s commitment to deliver effective and relevant recommendations, and we make four preliminary observations on the Panel’s work.
First, the Second Progress Report points to the potential for a fact-finding report to shade into legal conclusions and issues of liability. “Fact-finding” (or “enquiry”), is a peaceful method of settling international disputes as provided in Article 33(1) of the UN Charter, and seeks to resolve international disputes by “elucidating the facts by means of an impartial and conscientious investigation”, as it is put in Article 9 of the 1899 Hague Convention on the Pacific Settlement of Investment Disputes. A report of the fact-finding commission is usually limited to “a statement of the facts”, rather than including any findings of responsibility or fault. However, several past inquiries (in particular human rights fact-finding inquiries) have come close, referencing and applying international law rules in spite of their fact-finding mandate. In the Second Progress Report, the Panel could be said to have gone beyond a pure “fact-finding” by taking into account legal issues (and liability). For instance, with regard to the public health measures taken in response to the COVID-19 outbreak, the Panel suggested that the WHO and States could have issued more timely and stronger warnings of the potential for human-to-human transmission of COVID-19 “[i]f the precautionary principle had been applied” in relation to early but unconfirmed evidence of such transmission. Given that the precautionary principle has thus far been largely discussed within the field of international environmental law, it would be interesting to see how the Panel’s reference to the precautionary principle might influence debates on the responsibility of States for the spread of the pandemic, or perhaps gain traction more broadly in global health law. Further, the Panel also referred to a statement by the United Nations High Commissioner for Human Rights which criticised “rights abuses” by “some governments” to silence political dissent under the guise of measures taken to contain the spread of COVID-19. The Panel’s reference to alleged human rights violations of the right to free expression, assembly and participation in public life is notable given its fact-finding mandate. However, the Panel neither elaborated on its own findings on this issue nor indicated that it would investigate this further.
Second, it is notable that the Panel has not shied away from criticising States and the WHO for failing to take swift and decisive action to curb the spread of COVID-19. In this regard, the Panel’s findings recall that of the IHR Review Committee’s inquiry into the West African Ebola outbreak of 2014-2016, which pointed out that delays by national authorities in reporting outbreaks and by the WHO in disseminating timely information were missed opportunities to curb the spread of the virus at an earlier juncture. For example, the Panel found that there was evidence of COVID-19 cases in several countries by the end of January 2020, and that public health containment measures should have been implemented immediately in any country with a likely case of COVID-19; and that it was “not clear” why the Emergency Committee established under the International Health Regulations (2005) did not meet until the third week of January 2021 or why it was unable to agree on the declaration of a public health emergency of international concern when it was first convened. In the same vein, the Panel highlighted the failure of the global community to take effective collective action in pandemic response. For instance, the Panel observed that since 2011, 12 commissions and panels had been established to assess gaps in pandemic responses, and “too many [reform proposals] were not acted upon”. In that light, the Panel emphasised that its findings should not be taken as “yet another report to sit on the shelves”. The way in which such findings have been communicated by the Panel affirms its commitment to independence and impartiality, and also serves to allay concerns that the Panel’s conclusions might be cautiously conservative so as not to upset any States or international bodies.
Third, the Panel has underscored “stark inequalities” laid bare within and between States as a result of the pandemic, noting in particular the “manifest inequity in plans for vaccine rollout”. These issues were noted in previous IHR Review Committee inquiries into the H1N1 influenza pandemic of 2009-2010 and the West African Ebola outbreak of 2014-2016, which highlighted inequity in vaccine access and issues with requiring strict compliance with the International Health Regulations by all States (without regard to the particular needs of poorer States). However, one can expect these pressing issues to take centre-stage in the Panel’s final report, especially in light of the Astra-EU vaccine dispute, with the wider problem of “vaccine nationalism” in the background.
Finally, the Panel has outlined its strategy to assess the existing global health architecture and make recommendations on comprehensive reform of its institutions, actors and mechanisms. Strikingly, the Panel stated that the WHO was “underpowered to do the job expected of it” and that its funding, which had detracted from its “ability to concentrate on delivery of its core priorities”, would be scrutinised. The Panel would also examine “models of effective solutions to complex collective action problems” such as climate change, environmental protection and security, and weapons control. The procedures and protocols prescribed by the International Health Regulations (2005) which “seem[ed] to come from an earlier analog era” would also be reviewed.
The Second Progress Report clearly demonstrates the Panel’s commitment to deliver effective and relevant recommendations capable of producing real changes (a “global reset” in the Panel’s words) in the way the international community handles pandemics. With that in mind, one can look forward to the Panel’s final report that is scheduled to be presented to the 74th World Health Assembly in May 2021.