COVID-19’s New Cosmopolitanism? Structural Considerations for the Proposed Pandemic Treaty
abstract. The current movement to create a global pandemic treaty has the potential to fundamentally reshape the values and structures of global health law. Global health law has generally been organized around norms of security and charity, but the COVID-19 pandemic illustrated the weaknesses of this approach. Now, as the World Health Organization considers deploying its strongest international legal tool, an Article 19 treaty, there is a chance for change. This Note argues that the treaty’s drafters should take advantage of the opportunity to shift away from a global health law system based in norms of security and charity, and move instead toward a new, more cosmopolitan view of pandemic preparedness. By combining broad normative analysis with specific technical recommendations, this Note shows how careful treaty construction can drive global health law’s transformation into a more equitable and effective system that will leave us better equipped for the next pandemic—whatever and whenever that may be.
author. J.D. 2024, Yale Law School; MSc., University of Oxford; MSc., London School of Hygiene & Tropical Medicine; B.A., University of Texas at Austin. My deepest thanks to Oona Hathaway for supervising this work, and to Amy Kapczynski, Alice Miller, Aslı Ü. Bâli, Unni Karunakara, Mindy Roseman, Moritz Rudolf, Daniel Guttman, and Lawrence O. Gostin for their insightful suggestions and guidance. I am also indebted to the editors of the Yale Law Journal, especially Bo Malin-Mayor, Thomas Ritz, Saylor Soinski, Jessica Huang, and Milo Hudson for their invaluable support in preparing this Note for publication.
Introduction
The SARS-CoV-2 particles drifting through Wuhan, entering nursing homes in Spokane, and settling in the lungs of healthcare workers in Milan followed no law. But nearly every other aspect of the COVID-19 pandemic response was shaped by the organizations and legal structures of global health law. International legal obligations guided the transformation of physicians’ low whispers of unexplained pneumonia into international alerts, individual illnesses into aggregated disease-spread reports, and nascent scientific theory into a licensed COVID-19 vaccine. Law existed at every juncture of the COVID-19 response—albeit with varying levels of influence, effectiveness, and equity.
Indeed, the COVID-19 pandemic quickly overwhelmed preexisting legal architectures. Legal tools premised on containing disease to a limited geographic area faltered, then failed, growing increasingly divorced from the realities of the global pandemic. The years-long pandemic exhausted reservoirs of goodwill that the world once hoped might suffice for sharing pandemic-fighting resources. And legal safeguards intended to share the burdens and benefits of pandemic response tilted ever more against the interests of Global South1 countries historically blocked from decision-making power in global health.2 Global health legal structures failed to live up to their lofty promises, leaving significant questions about the future of global health law going forward.3
In response to these challenges, academics, advocates, and policymakers have dug into the veritable alphabet soup of legal structures and entities which pepper the global health law system—WHO, PEF, IHR, GHSA, TRIPS, CEPI, GAVI4—to reexamine fine print and suggest reforms to existing health governance. The content and scope of these proposals have varied, ranging from relatively modest calls to review existing regulations5 to broad critiques of international organizations and uneven distributions of power within global health.6 Amid these debates emerged calls for a very specific global health reform: the creation of a new treaty to govern pandemic responses.7
The proposal for a new pandemic treaty quickly jumped to the forefront of discussions about what global health governance could, or should, look like in the wake of COVID-19.8 In 2021, the WHO began the process of drafting a treaty.9 Article 19 of the WHO’s constitution grants the WHO the broad legal authority to place binding obligations on countries through its treaty-making power.10 To reach this point, however, the treaty must be drafted, negotiated, and accepted through the WHO’s procedures and adopted by a two-thirds vote of the World Health Assembly (WHA).11 On this long road, the world has already taken a significant step forward merely by starting the process. Until now, the WHO had only exercised its Article 19 powers once in its history, when it created the Framework Convention on Tobacco Control (FCTC) in 2003.12 The intervening two decades saw few proposals for another Article 19 process, and none were seriously considered at the international level.13 The fact that the WHO has begun an Article 19 process for the pandemic treaty is itself historic.
Currently, the treaty draft negotiations process is in its early stages. Following calls for a pandemic treaty in 202014 and a subsequent WHA special session in 2021,15 the WHO created an Intergovernmental Negotiating Body (INB)16 to kickstart the process of drafting and negotiating a treaty.17 Feedback from two rounds of public hearings18 was incorporated into a conceptual zero draft,19 which was first presented in December 202220 and most recently updated and considered by the INB in February 2023.21 This Note uses the February 2023 treaty draft as a baseline, with the understanding that the language and content of the treaty remain in flux. The INB’s current focus is on shaping the treaty for its May 2023 progress report to the seventy-sixth WHA, itself a stop on the road toward the final vote in May 2024 at the seventy-seventh WHA. This current moment of drafting and negotiation is therefore crucial for setting the treaty’s subject matter, scope, and structure.22
The INB faces a difficult task. The INB must fulfill its mandate of improving upon pre-COVID-19 legal structures and avoid simply replicating an inequitable status quo, but simultaneously it must garner enough support to avoid a total breakdown in support before the 2024 WHA vote.23 This is a massively complex balancing act. High-income and Global North countries enjoyed disproportionate access to resources (e.g., vaccines)24 and relatively strong economic positions throughout the pandemic, potentially weakening political will for new obligations. Global North actors have also historically resisted attempts at redistributing power in the global health space.25 But without such power-shifting, a pandemic treaty might be yet another legal instrument that lacks both effectiveness and equity.26 The treaty’s legal structures will be critical in striking this balance.27
This balancing speaks to existential questions about the goals of international global health law. Yet much of current scholarly attention, especially in the United States, takes place in the weeds, focused on individual aspects of existing legal instruments28 or the need for attention to a particular subject matter.29 Other projects focus on broader aspects of treaty development30 or more general critiques of global health’s inequities.31 This Note seeks to fill the gap between the two, linking analysis of necessary normative shifts with specific treaty provisions.
This Note argues that security and charity were the key normative principles underlying pre-COVID-19 global health law, and that this normative system failed in light of COVID-19. Part I begins by applying a four-part normative framework from the public-health-policy literature to the context of global health law, describing the normative underpinnings of global health law’s early history and some of its key modern institutions and legal mechanisms. Part II focuses on the COVID-19 response and how the failures of the security- and charity-based global health law system during the COVID-19 response warrant a normative shift toward cosmopolitanism as an alternative normative baseline. Part III links this normative shift to specific decisions about the pandemic treaty’s structure and subject matter that could push the treaty toward cosmopolitanism and help global health law move away from the failures of the security- and charity-based status quo.
Before embarking on this effort, a few preliminary notes are in order. First, any call for improvements in international law must balance intense and necessary skepticism of international law’s ability to influence the world at all with the hope that it might in fact influence the world for the better. In the pandemic-treaty context, serious debate exists about whether such a treaty can plausibly create change32 or only distracts from more transformational improvements to global health governance.33 This Note takes as given that current treaty drafting efforts will continue, and focuses on which much-needed reforms can occur within that process. This is intended to take nothing away from more fundamental critiques of global health law, and this Note approaches the immediate treaty negotiations with recognition and appreciation of such critiques.
Second, international relations terminology is often deeply
contested. The distinctions between “governance” and “law,”34
between different meanings of
“cosmopolitanism,”35
and between different conceptions of “rights”36
are the sources of extensive debate. It is outside this Note’s scope to fully
explore these debates, but this Note seeks to nuance terminological uses where
possible to convey the richness of this literature.
Engaging with global health law’s thorny questions is of
critical importance. The ultimate shape of the treaty will have immediate,
tangible impacts on how the world deals with the devastating and ongoing
COVID-19 pandemic. Three years into the pandemic, almost seven million people
overall have died of COVID-19 worldwide,37 and new spikes of cases continue to
surge across the world.38
Nor is COVID-19 the only communicable disease demanding action, a reality
driven home by recent mpox39
and ebolavirus outbreaks.40
Emergencies are ongoing around tuberculosis, HIV/AIDS, and malaria,41
and an underacknowledged crisis of noncommunicable diseases
looms.42
The pandemic treaty’s design will determine the world’s ability to address the
ongoing COVID-19 pandemic, other existing crises, and health emergencies yet to
come.