The 77th World Health Assembly (WHA)—the annual meeting of member states of the World Health Organization (WHO)—concluded on the 1st of June 2024. At this high-level meeting, after four days of intense negotiations (and many years of back-and-forth discussions preceding it) the Assembly made two major decisions. First, to adopt several amendments to the International Health Regulations (IHR), that is, the international legal rules governing the rights and responsibilities of states with respect to disease outbreaks. Secondly, to extend the mandate of the Intergovernmental Negotiating Body (INB) for a further year to finalize its work of developing a new Pandemic Agreement (sometimes referred to as the ‘Pandemic Treaty’). The IHR amendments have been heralded as a success of multilateralism, while the extension of the INB at least avoided an embarrassing collapse after multiple years of fraught and contentious debates over the content of the Pandemic Agreement.
Both these processes, aimed at developing and augmenting rules and norms of cooperation to address disease outbreaks—prompted by the devastating global impact of the COVID-19 pandemic—are couched (at least rhetorically) in terms of various ethical commitments and imperatives that we want to explore in this article, as a lens into the wider ethics of global health governance. When we speak of the ethics of global health governance, we mean the moral principles on which the idea that health issues require some form of collective action are based, and the consequences of these principles on questions of rights, responsibilities, distribution of resources, justice, and so forth. We look at some of the key amendments proposed (and, in the case of the IHR, adopted) in these two side-running processes of international law and the ethical principles that underpin them. Through this exploration of key ethical questions at the heart of the IHR and Pandemic Agreement negotiations, we demonstrate that there are ethical limits to these state-based processes. We do so by drawing attention to the gaps between the rhetoric of global health cooperation and solidarity and its practice, as well as the systemic dimensions of global ill-health that are left unaddressed by these rule- and norm-setting exercises which take place in an international order shot through with extreme hierarchies of power and resources.
Ideas of solidarity in the Pandemic Agreement & amended International Health Regulations
The COVID-19 pandemic clearly demonstrated the challenges to solidarity and cooperation in global health governance. Distrust and scapegoating of international organizations like the WHO by Jair Bolsonaro and Donald Trump (among others), the failure to implement a waiver on intellectual property rules to ensure that health technologies could be shared, global vaccine inequity (partly a result of the lack of a waiver), hoarding and commandeering of other biomedical products, and more, all suggest a breakdown in cooperation and flouting of ideals of solidarity.
Yet, these failures also catalyzed attempts to create more binding and rigid instruments to increase international cooperation for when the next pandemic inevitably occurs. Following a special session of the WHA in November 2021, WHO member states formally began negotiating the terms of the Pandemic Agreement and simultaneously proposed revisions to the IHRs. These negotiations stemmed from the recognized shortcomings of the IHRs (which were last updated in 2005) and member state dissatisfaction with their adequacy during the COVID-19 pandemic. With these dissatisfactions in mind, the proposed Pandemic Agreement would be a legally binding instrument to strengthen the global response to future disease outbreaks, while working alongside new IHR amendments aimed at fostering scientific data sharing and equitable access to medical countermeasures.
In the several drafts of the Pandemic Agreement that have so far been published, the IHR amendments, as well as the speeches and statements around them, there is a notable and new commitment to ethical principles such as ‘solidarity, fairness, transparency, inclusiveness, and equity’. Indeed, principles of equity and solidarity feature prominently, such as in the guiding principles of the draft Pandemic Agreement text, which asserts ‘equity as the goal and outcome of pandemic prevention, preparedness and response, ensuring the absence of unfair, avoidable or remediable difference among groups of people’, and aims for ‘solidarity, transparency, and accountability’ in the work to achieve that equity.
The inclusion of these principles speaks to the widespread anger—especially from the majority world—at the inequities of information sharing, the restrictions of intellectual property rights, and vaccine development and distribution during COVID-19. Indeed, many of the draft Treaty articles are particularly aimed at bringing these ethical commitments to fruition, particularly with respect to technology and know-how transfer. Under Article 11, states are reminded of their rights to use flexibilities in the Trade-Related Aspects of Intellectual Property (TRIPS) agreement and encouraged to implement intellectual property waivers. Meanwhile, Article 12 contains a critical cornerstone of the draft agreement, namely the creation of a new Pathogen Access and Benefit Sharing (PABS) system aimed at enhancing the sharing of pathogen data but with reciprocal commitments to ensure, ‘on an equal footing, equitable, fair, and rapid sharing of monetary and non-monetary benefits, including timely, effective, and predictable access to relevant diagnostics, therapeutics, or vaccines’ produced from the pathogen samples. The PABS system, especially, is seen as a key outcome of the negotiations so far and necessary inclusion in the final Treaty, especially by states in the majority world. For example, for health officials from Kenya and South Africa, the resource-sharing mechanism is considered essential and ‘the heart’ of the Treaty.
The IHR amendments similarly nod to the importance of equity and solidarity. Unlike the 2005 revisions that reinforced a more technocratic approach, the new drafted revisions explicitly draw upon the importance of ‘full respect for the dignity, human rights, and fundamental freedoms of persons’. There are key parallels between the two instruments, mainly around the significance of resource sharing. Although the Pandemic Agreement sets out duties mainly for member states, the revised IHRs appear to bolster the technical authority of the WHO, placing it at the forefront of these equitable aspirations. As stated under Article 13 of the revised IHRs, the WHO aims to play a coordinating role in driving equitable access to health products during a public health emergency response, even in challenging humanitarian and fragile settings. Similarly, Article 14 stresses the importance of multilateral engagement between WHO and other international organizations during health emergencies, while overseeing the ‘application of adequate measures for the protection of public health’.
Combined, the two documents should, in theory, mean that for the poorer states that were left without essential health technologies during COVID-19 there will be fewer obstacles presented by intellectual property law, with more immediate and shared access to vaccines, medicines, and resources. While there are of course substantial hurdles to the realization of many of these goals—more on which later—these nevertheless represent significant changes to, at the very least, the language of the rules and norms around cooperation in the face of disease outbreaks. Some commentators hold that the centring of equity in global health law in the Treaty and IHR revisions can ‘ensure justice in pandemic prevention, preparedness, recovery, and response’.
What these negotiations tell us about the ethics of global health governance
The inclusion of these principles in the Pandemic Agreement and the revised IHRs, and the fact that their inclusion (and mechanisms to actualize them) were at the core of the drawn-out and often very fraught (and as yet uncompleted, in the case of the Treaty) negotiations, gives us a sense of some of the wider ethical issues that arise within the governance of global health issues and can help us unpack some of these.
While there are many different ways of conceptualizing and grounding these principles, with respect to disease outbreaks like COVID-19, the starting point for theorizing the ethics of health governance tends to be the fact that health issues (viral transmission is just one obvious case of this) have a cross-border nature that necessitates cooperation to address them. Others would take this utilitarian argument much further and claim that we all have a shared common humanity that makes cooperation and transnational acts of solidarity necessary, drawing on cosmopolitan ideals of helping ‘distant strangers‘. An alternative justification might be that health inequalities—like the disproportionate (and avoidable) realities observed during the COVID-19 pandemic—are fundamentally morally wrong (or as Jennifer Prah Ruger calls them, ‘morally troubling’ [p. 35]), thus requiring some form of remedial action. We may, alternatively, take a relational view on global health inequalities that focus on our responsibility and/or complicity in creating the conditions that give rise to inequalities, in other words the global social relations we are embedded within that create, uphold, or worsen health inequalities.
The ethical consequences that flow from these different (and overlapping) grounding principles likewise depend on the ways in which we conceptualize questions of responsibility or even complicity, as well as how we think these responsibilities are best fulfilled. For example, if we commit to the idea that there are shared responsibilities for the governance of health at the global level purely from a pragmatic perspective—i.e., that we need global health governance because health issues are border-spanning—we might focus our disease governance efforts on shutting down international borders as soon as a new pathogen emerges. Yet border closures would quickly come up against both pragmatic difficulties (how do you do this in a densely interconnected world) and clash with other ethical principles (such as individual rights and freedoms).
Alternatively, if we hold health inequalities to be morally wrong, the remedial action to address them also very much depends on how we view the nature of responsibility for these inequalities. If health inequalities are seen as a consequence of mismanagement by individual states, conditional development aid might be the chosen remedial action. If they are seen as happenstance and natural—in the sense that not everyone can be equal, all the time—charity might be the chosen mode to address inequalities. Or, if they are seen as consequences of unjust structural dynamics, global redistribution (akin to domestic taxation) and systemic restructuring might be necessary to ensure justice. Moreover, the most appropriate actors to address health inequalities also depends on how we view the nature of responsibility and the actors we believe are best suited to successfully achieve effective and ethical global health governance, and what the balance between states, international organizations, and non-state actors should be in this pursuit.
What is missed in the discussions around the Pandemic Agreement
On the face of it, the amendments to the IHR represent significant progress in the development of the international rules governing health, and the extension of the INB mandate maintains some hope that a Pandemic Agreement might eventually be adopted. Combined, these legal and normative developments might help the WHO and member states to bring some of the abovementioned ethical commitments to fruition. But it is worth also reflecting on what is not (and cannot be) captured in these formal, high-level inter-state negotiations, and what these gaps tell us about ethics of global health governance—not least because they are gaps that also often figure in the writing of scholars of global health ethics.
We want to focus on two things here. Firstly, the artificial flattening of global health hierarchies and the material realities that shape ill-health, and secondly, the related absence of the continuing importance of race and empire to the maintenance of these hierarchies (a problem of much ethical theorizing). We suggest that this absence fundamentally challenges much of the ethical theorizing around global health governance, which also indicates that some of the lofty goals of solidarity in the IHR revisions and the Pandemic Agreement will be found sorely wanting in practice (as was the case during COVID-19).
We return here to the work of Ruger, whose body of work is perhaps the most comprehensive in attempting to construct a theory of ethical global health governance. Yet, self-admittedly, Ruger’s
