2022•11•22     Kuala Lumpur

 

Executive Summary

To address the challenges in pandemic preparedness and response (PPR), the World Health Assembly (WHA), at a special session in November 2021, established an Intergovernmental Negotiating Body (the INB) and tasked it with drafting a new legal instrument for PPR.

During its second meeting in July 2022, the INB decided to develop the accord under Article 19 of the WHO Constitution, which grants the WHO the authority to negotiate a legally-binding Convention or Agreement and requires ratification by countries according to their local laws to enter into force. The aim is to complete negotiations and adopt a new pandemic instrument at the WHA in May 2024.

The new legally binding agreement aims to address many of the failures exposed by the COVID-19 pandemic. However, the adoption of such an agreement is not the end of the process but the beginning. The negotiations on the instrument must establish a mechanism to monitor countries’ compliance with the accord, particularly on the legally-binding elements.

In this paper, we recommend creating such a mechanism as part of the accord: an independent committee of experts that monitors state parties’ compliance with the pandemic accord and the timeliness, completeness, and robustness of states’ reports on their obligations. Its primary purpose would be to verify state self-reports by triangulating them with a range of publicly available information, making direct inquiries, and accepting confidential submissions. It would report its findings to a body consisting of or that is directly accountable to heads of state, with a particular focus on elevating instances of non-compliance or inadequate reporting. Its reports would also be available to the public.

The proposed design builds on the analysis of strengths and weaknesses of existing monitoring approaches to 11 international treaties and mechanisms within and outside of health, a review of the literature, and interviews and input from more than 40 experts from around the world.

 

1.   Background

The COVID-19 pandemic exposed deficiencies in the current global health governance and collaboration mechanisms. The International Health Regulations (IHR), while technically legally binding to all World Health Organization (WHO) member states, did not lead to a coordinated and timely response. Many states lacked the capacity or the political will to undertake prompt action after the declaration of the Public Health Emergency of International Concern (PHEIC).¹ The response in many countries even countered what the IHR stipulated and the WHO advised and was instead driven to a much larger extent by political interests.²

To address these challenges in pandemic preparedness and response (PPR) and the challenges identified in various reviews, including reports by the Independent Panel for Pandemic Preparedness and Response (IPPPR), the IHR review committee, and the Independent Oversight and Accountability Committee (IOAC),^3–5 the World Health Assembly (WHA), at a special session in November 2021, established an Intergovernmental Negotiating Body (the INB) and tasked it with drafting a new legal instrument for PPR (henceforth “the pandemic accord” or “the accord”). It is due to be considered by the WHA in May 2024.

During its second meeting in July 2022, the INB decided to develop the accord under Article 19 of the WHO Constitution, which grants the WHO the authority to negotiate a legally-binding convention or agreement and requires ratification by countries according to their local laws to enter into force. A working draft intended to provide a basis for countries to negotiate the detailed content.

Several other processes relevant to PPR are underway in parallel. While their relationship to each other and the accord have yet to be defined, they include the following:

• Amendments to the IHR: In June 2022, the WHA in Geneva established a process for amending the IHR through the WHO Working Group on Amendments to the International Health The Working Group is due to bring proposed amendments to the IHR to the WHA in May 2024, based on 14 proposed amendments already submitted by member states.
• The Pandemic Fund: Established during World Bank meetings in Washington in June 2022, with backing by the G20, the WHO, and several private foundations, the Pandemic Fund aims to “provide financing to low-and middle-income countries and regions to strengthen their capacity in PPR. Accredited implementing entities would receive Pandemic Fund financing and implement programs together with governments and regional and global entities.”⁶
• High-Level Meeting of the UN General Assembly: This will be held in 2023 and will aim to produce a political declaration on pandemic prevention, preparedness and response (PPPR).⁷ A resolution passed in a consensus vote in September 2022, after being co- sponsored by 129 member states, calling on the UN Secretary-General to convene a one- day high-level meeting on PPPR no later than the end of the general debate of the 78^th session of the UN General Assembly in 2023.
• A Heads of State oversight body: Several reports, panels, and global health advocates have proposed the establishment of a “Global Health Threats Council” (or similar) consisting of heads of state to drive high-level, sustained political will and accountability for PPR.³

The WHO Director-General proposed a similar body, suggesting that it should report to the WHA.⁸

• The Global Preparedness Monitoring Board (GPMB): The GPMB, which considers preparedness at a global level, beyond the sum of preparedness at a national level, has recently named new Board members, although a change in its mandate is not expected.⁹

Enforcement and compliance mechanisms are yet to be elaborated in the working draft of the pandemic accord and have featured to a minimal extent in discussions so far. However, lessons learned from other treaties show that more than merely adopting legally-binding provisions is required to ensure countries’ compliance.^10,11 The most comprehensive systematic review on the topic found that enforcement mechanisms are the only design feature in global treaties that may increase the chance of their effective implementation.¹¹ This means “a specific sanction or consequence delivered by a court, committee, secretariat, or other legal authority” in cases of non-compliance.ⁱ It follows that any such enforcement mechanism needs a robust system to monitor state parties’ implementation of international treaties and ascertain their compliance.

To inform the development of a system that supports the enforcement of the anticipated pandemic accord, we explored lessons learned from current mechanisms to monitor compliance with existing treaties. This exercise included the Framework Convention on Tobacco Control (henceforth the “FCTC” or “the Convention”) and other international treaties from a range of different fields. We chose the FCTC as it is the only WHO convention developed under Article 19 to date. As such, it will likely serve as a model for the new accord, in terms of both the technical processes and political dynamics at WHO relevant to its development and governance.

Based on our review of relevant literature and interviews with experts, we propose a structure for an independent monitoring committee tasked with producing assessments of state parties’ compliance with the pandemic accord, including the timeliness, completeness, and robustness of state self-reports. The purpose of this report is to serve as a resource for decision-makers over the upcoming months as they develop effective independent monitoring for the pandemic accord.

2.  Methodology

2.1.   Previous work
This report builds on three previous pieces of work conducted by Spark Street Advisors. The first, a March 2021 study on monitoring UN treaties, summarized the fundamental design principles for monitoring mechanisms and explored how these could be applied to PPR governance.¹⁰ It concluded that PPR governance should borrow from several different design features for the most effective monitoring mechanisms.

A second review, conducted in October 2021 (Annex 1), explored the independent monitoring bodies of eight existing treaties and how their structures may affect the autonomy, authority, and impact of monitoring. It summarized relevant lessons for independent monitoring in PPR, including those related to mandate, principles, funding, membership, reporting, and compliance.

Finally, a rolling review initiated in December 2021 summarizes existing and newly-established mechanisms and initiatives related to PPR, including legal instruments, time-limited and continuous reviews, surveillance mechanisms, financing instruments, and technical assistance.¹²

ⁱ This working definition of “enforcement mechanism” is used in the systematic review, as communicated by the study authors.

2.2.    Literature review

As a complement to the literature reviews for the analyses described above,ⁱⁱ we conducted a review of the literature on the Framework Convention for Tobacco Control (FCTC) as the only other convention in force under Article 19 of the WHO constitution.

To do this, we searched scientific databases including Global Health, MEDLINE, Social Policy and Practice, and CINAHL Plus (August 2, 2022) (lower limit 2003) with the search terms: the Framework Convention on Tobacco Control/FCTC AND comply*, compliance, monitor*, COP, “conference of the parties”, governance, implement*, effect, or impact*. We also searched OpenGrey (August 18, 2022) and Social Science Research Network (August 23, 2022) to identify relevant grey literature. We included articles if they described or analyzed the monitoring mechanism of the FCTC or compliance with it.

Through social and mainstream media, we also monitored the evolving PPR architecture, INB deliberations, and related initiatives, producing regular summaries on LinkedIn and Twitter and through a living “primer” updated on a bi-weekly basis.¹² (See Annex 2 for the literature reviewed).

2.3.   Expert interviews

We interviewed experts in global health, international law, and treaty monitoring. We conducted 42 expert interviews in total; 20 semi-structured interviews from November 2021 to March 2022 and 22 unstructured interviews from August to November 2022 with academics, government officials, officials from international organizations and foundations, advocates, and activists from a diversity of geographies.

The first round of interviews informed the elements to be included in a design for independent monitoring. The second round was used to further explore monitoring structures and enforcement mechanisms of various treaties and then solicit feedback on a draft design of a monitoring mechanism for the pandemic accord. Two team members reviewed the interview notes and analyzed and tracked them using a living document. We continuously evolved the design based on the feedback received.

ⁱⁱ Please see previous papers for a detailed description of search terms and methods.

3. Lessons learned on reporting and compliance monitoring from existing mechanisms

3.1.   The Framework Convention on Tobacco Control

The FCTC is the only convention developed under Article 19 of the WHO Constitution. Therefore, it represents the only example of the WHA adopting a process that involves the legal and political challenges likely to arise in developing, ratifying, and enforcing the pandemic accord.

3.1.1.  FCTC reporting and compliance monitoring structure
Adopted in 2003 and entered into force in 2005, the FCTC aims to strengthen multilateral cooperation and national action to tackle the global tobacco epidemic. 182 of 194 WHO Member States are now parties to it.¹³

The Conference of the Parties (COP) is the governing body of the FCTC and meets every two years. It consists of all parties to the Convention and is mandated to monitor and take decisions to promote its effective implementation. State party delegations generally consist of representatives from permanent missions to Geneva, national health officials, and officials from relevant ministries other than health such as departments of trade or finance.¹⁴ Non-state parties, intergovernmental organizations, and non-governmental organizations can also attend COP as non-voting observers.¹⁵

Reporting to COP and hosted by the Director General’s Office at WHO, the FCTC Secretariat carries out most of the significant work related to the Convention. It coordinates COP’s work, assesses and reports progress towards the Convention based on country reporting, and provides technical assistance to countries.¹⁶ While the Secretariat works closely with relevant WHO departments to ensure alignment on tobacco control, it has programmatic independence on treaty matters. State parties to the Convention fund it.^17,18 It collaborates with a network of knowledge hubs – academic institutions, government affiliates, and non-governmental organizations – that provide technical assistance to countries.¹⁹ The Secretariat also works directly with observatories that monitor the activities of the tobacco industry.²⁰

The mainstay of FCTC compliance monitoring is the state parties’ obligation to self-report to COP on their actions to progress their compliance with the Convention.²¹ Every two years at a minimum, states must use a digital “core questionnaire” that COP adopted in 2010 to consolidate the reporting mechanism. Technical focal points and local staff assigned by countries complete the questionnaire for each country. It covers areas such as the prevalence of tobacco use in the population, taxation policies, product prices, seizure of illicit tobacco products, and each of the measures stipulated by the articles of the FCTC.²²

The Secretariat tracks states’ compliance by compiling the state reports into a database that allows a review of overall progress by state and FCTC implementation area. It also publishes biennial global progress reports covering broader tobacco-related policy developments, including beyond Convention articles.^18,23

In addition to regular monitoring, the FCTC contains provisions for detailed country-level needs assessments to inform programs and funding. However, most countries have not committed the necessary funds to facilitate this and, 16 years since the first COP, needs assessments have only been conducted in 60 countries.^24,25

3.1.2.  Strengths and weaknesses of the FCTC and its monitoring
Published literature suggests that the FCTC has succeeded in advancing its primary aims by raising the global profile of tobacco control, which has, in turn, led to increased commitments including in political, financial, and human resources towards tobacco control. It has also catalyzed the formation of relationships critical for passing tobacco control policies, including across civil society globally, between governments and civil society, and across government sectors.^26–28 However, there is little detail on the mechanisms through which the FCTC has catalyzed such relationships. It is therefore not possible to know whether these connections formed due to the Convention admitting non-governmental organizations (NGOs) into COP or due to factors outside the structures of the treaty.

There have been persistent challenges that the Convention has been unable to overcome, which have limited the extent of its enforcement. The political will committed to tobacco control remains insufficient and there are challenges related to low funding levels and the tobacco industry’s significant influence on policymaking. Some countries also lack the necessary capacity to enable compliance with the treaty once it is ratified due to under-developed infrastructure in health and other sectors.^29–32

There are many limitations associated with the system to support compliance monitoring. First, COP and the Secretariat are not empowered to ensure that states’ reports are accurate.

While the Framework Convention Alliance (FCA) brings together 300 non-profits into a confederation to monitor state compliance and global progress towards the Convention, its role in COP is limited to that of a non-voting observer.^33,34 Second, there is no mechanism through which COP or other stakeholders can submit formal complaints against states that are not compliant with the Convention; thus, there is limited authority to call out non-compliance with the FCTC publicly. Third, there are no enforcement mechanisms, such as incentives or sanctions, as is common in trade and investment treaties. Thus, non-compliance, when identified and called out, does not lead to material consequences.^29,35 Finally, although there is a binding dispute arbitration mechanism stipulated in the FCTC, entering this mechanism is not mandatory. If arbitration is requested by one party or another, the latter can decline.³⁶ States are encouraged to resolve disputes over the interpretation or application of the FCTC through diplomatic means. Only three states (Azerbaijan, Belgium, and Viet Nam) have committed to submitting to the arbitration mechanism in case diplomatic means fail to resolve an issue.³⁷

This lack of formal enforcement structures (such as sanctions) means that compliance relies on more informal mechanisms. For example, compliance appears to be higher in countries where domestic NGOs working on tobacco control are connected to broader international NGO networks.³⁸ While the FCTC may have facilitated the development of some of these networks, the engagement of non-state entities is not formalized. These dynamics of domestic accountability, therefore, develop outside the auspices of the Convention. This lack of formalized engagement of non-state entities reduces the ability at the domestic and global levels to engage civil society meaningfully and also presents a challenge in regulating the private sector.³⁶

While state parties to the FCTC are generally compliant with the requirement to submit the biennial reports on tobacco control policies stipulated by the FCTC, reviews of COP have urged adopting a more robust monitoring system that would focus on the implementation of the Convention, recommend action based on the findings, and draw lessons informed by independent and detailed reviews of state performance.^24,35 However, state parties have been reluctant to consider such a system, with several COP sessions considering but ultimately not adopting an implementation review framework to hold individual countries accountable.²⁹

3.1.3.  Key takeaways
Three main takeaways for developing a pandemic accord emerge from analyzing the reporting and compliance monitoring structures of the FCTC.

First, enforcement mechanisms could improve the chance of a new pandemic accord achieving its intended effect. In addition to the limitations identified in compliance with the FCTC, this is supported by research into international treaties in general, which demonstrated that enforcement mechanisms are the only treaty design feature that can affect whether treaties produce their intended effect.¹¹

Second, a pandemic accord should aim to adopt mechanisms to verify countries’ self- reporting. The FCTC relies primarily on country reports and lacks verification processes such as peer review, independent reporting by experts empowered by the Convention, or formal shadow reporting by civil society.

Finally, broad involvement in treaty accountability, particularly of civil society organizations, improves compliance. The FCTC may have facilitated the establishment of global networks between actors working on tobacco control, including between domestic and global civil society organizations. These networks catalyzed government action and empowered civil society to hold their governments to account.
3.2.    Monitoring and compliance in other global instruments
In our previous review, we identified core elements from independent reporting and compliance monitoring mechanisms of other global instruments that should inform any proposal for monitoring compliance with the anticipated pandemic accord (see also Annex 1). These are summarized below.

Table 1. Independent monitoring mechanisms reviewed

3.2.1.  Safeguard independence

Many monitoring bodies use their independence to ensure greater freedom to report findings without pressure from state parties or donors. Some, like the Human Rights Council, rely on representative bodies to monitor compliance, however such bodies are prone to political interference.³⁹

Examples: The Independent Monitoring Board for Polio, the International Atomic Energy Agency, human rights treaty bodies, the Independent Accountability Panel for Every Woman Every Child, and the International Panel on Climate Change all draw on independent experts to carry out investigations and prepare reports.

The pandemic accord should be monitored by an independent body, impartial from state parties and the WHO, to ensure its independence from political or economic influence.

3.2.2.  Elevate accountability
While treaty bodies generally do not establish a legal basis for obliging states to follow their recommendations, their authority is usually derived from extra-legal factors, such as state peer pressure, as well as the reputational and economic risks associated with non-compliance.

Those potential costs are perceived to be heightened when a monitoring body can report to heads of state, for example, through the UN General Assembly (UNGA) or the Security Council (UNSC).

Example: Cases of non-compliance with IAEA obligations can be escalated, in addition to IAEA members through its General Conference, to the UN as the IAEA reports to the UNGA and UNSC. UNGA or UNSC can then decide on the consequences for non-compliance.

Elevating the responsibility beyond ministers of health is particularly important for PPR, given the coordinated action required across multiple sectors for effective action.

3.2.3.  Verify data

The vast majority of treaties contain obligations for states to self-report their compliance. Some bodies establish mechanisms to verify state reports based on various sources.

Examples: Human rights treaties include a formal process for soliciting reports from independent human rights experts, such as Special Rapporteurs, and confidential “shadow reports” from UN agencies, human rights organizations, and civil society organizations (CSOs) who deliver evidence to the Human Rights Council. Likewise, the IMF conducts its annual “Article IV” country review in consultation with various stakeholders, including governments, central banks, businesses, parliamentarians, labor unions, and CSOs.¹⁰

The pandemic accord offers an opportunity to establish a mechanism that integrates different data sources to verify state reports, including some existing initiatives that currently track different aspects of PPR. These include reporting from the Global Health Security Index and the Global Preparedness Monitoring Board¹², as well as from social media and civil society.

A monitoring mechanism for the accord should verify data provided by states using a broad range of sources.

3.2.4.  Grant investigative powers

Some treaties grant powers to an assigned entity to conduct on-site visits, which have the potential to serve a twofold purpose. First, they support verifying data, gathering additional information, and investigating issues on the ground, serving as an early warning and check mechanism if concerns arise related to non-compliance or other risks, including urgent issues. Second, they are an opportunity to provide states with technical support and capacity building at the national and sub-national levels.

Examples: Many monitoring bodies, such as the Human Rights Council, the IMF, and the IAEA, visit countries for consultations and investigations. Most on-site visits are planned with state consent, while treaties on the use of nuclear energy, chemical weapons, and prevention of torture form an exception by granting inspectors powers to access state parties without consent for the particular visit. While unconsented visits, stipulated in a treaty or its additional protocols, are theoretically possible, they are rarely undertaken.¹⁰

On-site investigations related to verification of reporting may be required to assess if states are complying with their obligations and if the data they provide are robust.

3.2.5.  Formally (and transparently) track follow-up

While treaty monitoring bodies do not have the authority to oblige states to follow their recommendations, some use a formal follow-up mechanism that allows the body to track whether a state has implemented the recommendations provided.⁴⁰

Example: Human rights treaty bodies conduct repeat assessments a year or two after they make recommendations to assess the extent to which a state has redressed its non-compliance. The assessment can extend to all or prioritized concerns, is conducted in close collaboration with a state, and data is triangulated with various sources.⁴¹

The pandemic accord should establish a formal follow-up mechanism where countries report on how they have addressed or plan to address gaps identified in the reports.

3.2.6.  Provide “reputational” incentives

Recent discussions around ensuring countries fulfill their obligations frequently cite incentives and sanctions. However, there is little evidence on or examples of material incentives or sanctions that work. Moreover, there is widespread concern that sanctions in health are not feasible due to the harm they risk to populations that are likely already vulnerable. Evidence from other treaties, however, shows that reputational sanctions or incentives – peer pressure on the “negative end” and a good reputation on the “positive end” – can serve as essential tools for compliance.

Public reports, including recognizing positive outliers and naming and shaming poor performers, are tools that work through generating political pressure between states and between the general public and states (e.g. amplified by CSOs campaigning for policy shifts).

Examples: In terms of reputational risk, the “naming and shaming” method is used by the International Labour Organization, which calls states out for violations of labor rights.⁴² Human rights treaty bodies also use a similar approach, publishing reports on the performance of individual countries.

While material incentives or sanctions may not be appropriate for promoting compliance with the pandemic accord, reputational incentives can play an important role.

3.2.7. Link to financial and technical assistance

To overcome the difficulty in using effective incentives that also avoid harm, treaties often use a “facilitative” approach to promote compliance, where states receive technical support and resources if they report gaps in implementation. This approach assumes that countries fall short of their obligations due to a lack of capacity rather than desire.

Examples: The UNFCCC uses a facilitative model to promote compliance. The treaty Secretariat provides technical support and resources to state parties that report non-compliance or fall short of their reporting obligations.⁴³ The Convention on Nuclear Safety, as well as the Chemical Weapons Convention, follow this approach too, although they also have enforcement elements.

Monitoring for the pandemic accord could highlight key gaps in compliance that may require financial and technical resources to address.

3.2.8. Safeguard expert autonomy

Treaty monitoring committees’ organization, composition, and size vary greatly, with composition and governance dependent on the specific aims and functions. Committee sizes range from five to 25 individuals. Among those with a limited term, committee members’ terms range from two to four years, renewable no more than twice. Likewise, the election and nomination vary by committee. Members can be elected, directly appointed, or hired. A dedicated Secretariat usually supports treaty monitoring bodies. The size depends on the function that the Secretariat serves.

Examples: Human rights treaty bodies have 10-25 independent experts depending on the treaty body. They are nominated and elected by the member states for renewable four-year terms through the process facilitated by the Office of the High Commissioner for Human Rights (OHCHR). A group of IAEA inspectors is chosen from a pool of over 500 professional international civil servants with technical expertise, recruited from member states for an initial 3-year period, renewable for two two-year periods.

Autonomy of monitoring should be emphasized by committees comprised of independent experts that serve in their personal capacities for a limited time. Any secretariat support for this function should be firewalled from institutions with vested interests.

4. Proposal

Based on the analysis summarized above, we outline a concrete proposal for an independent monitoring mechanism for the pandemic accord currently under negotiation. This proposal is a starting point for discussions to further elaborate on the design.

4.1.    Functions
The accord would establish an independent monitoring committee (“the committee”) tasked with producing regular assessments of state parties’ compliance with the pandemic accord and the timeliness, completeness, and robustness of states’ self-reports.

The primary function of the committee would be to escalate cases of non-compliance and inadequate reporting to the body responsible for the enforcement of the legally-binding aspects of the pandemic accord. The reports would also inform the allocation of technical and material resources required to ensure compliance, for example, by the Pandemic Fund.

The committee’s independence is essential to ensuring its freedom from the political pressures brought by representative bodies and the dependencies brought by donors. The committee would report to a pandemic accord Conference of Parties (COP) and a body consisting of, or representing, heads of statesⁱⁱⁱ based on the extra-legal authority granted by high-level political commitment and oversight. This reporting could be to a council of heads of state (such as the proposed Global Health Threats Council), UNGA, or the UN Secretary-General.

Figure 1. Illustration of the data flow for the independent monitoring system

The committee would serve a “check-and-balance” function on the quality and accuracy of the information reported to COP, triangulating state-party self-reporting with other public and private sources to identify gaps and inconsistencies. As seen in several other treaties, such as the UNFCCC and human rights treaties, additional public sources should include shadow reports on treaty compliance, including by domestic civil society organizations and UN agencies. The Committee would have the authority to seek information from state parties through direct inquiries, to accept confidential reports from members of the public, such as whistleblowing from civil society (as does, for example, the International Labour Organization), and to conduct country visits (such as, for example, in the Chemical Weapons Convention). Reports by other global organizations and initiatives could also provide relevant information and catalyze broader engagement, particularly where follow-up is required.

The Committee would share reports of its findings transparently into the public domain to promote public accountability, as is common in many treaties, including human rights treaties. This would include highlighting examples of “best practices” in compliance and reporting to promote mutual learning between countries and provide positive reputational incentives to complement a “naming and shaming” or “reputational risk” approach. Public reporting would exclude any information shared confidentially by states through direct confidential inquiries or submissions (described further below).

ⁱⁱⁱ Heads of state is used as short hand for heads of state and government

4.2.    Data sources
One of the primary methods for the committee to fulfill its functions is to triangulate state self- reporting with other sources. These could include:

• Reporting for the International Health Regulations (IHR)
  • State Party Self-Assessment Annual Reporting (mandatory)
  • Joint External Evaluations (JEE) (a voluntary peer-review reporting mechanism, which is increasingly adopted)
• The Universal Health and Preparedness Review (UHPR) (currently under pilot, proposed to be voluntary, likely to be comprehensive)
• The Global Health Security Index (a civil society initiative)
• Community-based/national CSOs focusing on pandemic preparedness and response (shadow reporting; currently uncommon)

Although reports by the following types of organizations are not specific to PPR, their country reports may contain relevant details for the committee:

• Intergovernmental organizations, such as the IMF, World Bank, UN agencies
• Other global organizations and foundations, such as the Gates Foundation, Gavi, the Global Fund
• Community-based/national CSOs that focus on health, societal, or economic issues that may indirectly contain relevant information for PPR and the pandemic accord

The World Bank-hosted Pandemic Fund will likely require recipient countries to conduct reporting, which could also serve as input.

4.3.    Composition
To ensure its independence, the main criteria for committee membership would be ensuring a range of expertise, with each member serving in their personal capacity. To match the breadth of the pandemic accord, this expertise would span relevant fields, including public health, economics, social sciences, law, trade, and finance. The membership would aim for geographical and gender balance. Following recent norms, the committee would be led by two co-chairs responsible for facilitating the group. As with human rights treaty bodies, the committee would comprise 15-20 independent experts (although the exact number and distribution of expertise would depend on the mandate).

In line with the political authority that the body would require, members would be selected by the UN Secretary-General following nominations by a range of relevant stakeholders, for example, the WHO Director-General, the pandemic accord state parties (through COP), the pandemic accord Secretariat, and a public call. Officials currently serving in governments and donor organizations would not be eligible to be members of the committee. Terms would need to be staggered and strike a balance between sufficient length for members to develop deep knowledge of the work and short enough to avoid institutionalization of the committee.

Committee members would not be paid but would receive an honorarium based on the UN rate as well as reimbursement for travel and other expenses.

4.4.   Terms of reference
To enable the generation of timely and relevant reports, including those related to follow-up, the committee would need to meet regularly (e.g. one two-day meeting in person and quarterly virtual two-day meetings). During these meetings, the committee would review the compliance of state parties and the timeliness, completeness, and robustness of their reports.

The committee would determine the frequency at which each state would undertake future reporting through a risk-rating system (red-amber-green) based on their overall assessments. To promote public accountability, it would be essential to produce digestible summaries for the public (akin to the ALMA Scorecard or the GlobalChild Heatmap) published on dedicated portals.^44,45

Lessons learned from all treaty monitoring bodies emphasize the importance of a follow-up plan for the findings of the committee. After each meeting, the committee would produce a report for the pandemic accord COP and its responsible body (e.g. a council of heads of state such as the proposed Global Health Threats Council, UNGA, or the UN Secretary-General). Reports would focus on issues that require escalation, such as shortcomings in reporting or compliance. The committee would also have the mandate to raise issues with other bodies, such as the WHO or the governance committee of the Pandemic Fund, if relevant.

4.5.   Secretariat and hosting
A small, dedicated secretariat would support the committee. Consisting of, for example, 10-15 full-time staff members, the Secretariat would work on behalf of the committee to collect, collate, and prepare analyses and reports. At the request and acting on behalf of the committee, it may also solicit additional information from states through direct inquiries and arrange on-site visits for the committee if needed.

The committee and secretariat hosting arrangements should promote independent decision- making, which requires financing through ring-fenced, unconditional, up-front, and sustained funding by an international or multilateral body, such as the office of the UN Secretary-General or the Pandemic Fund. Moreover, its operations must be completely firewalled from any institution with a vested interest in supporting countries on PPR or that might be compromised in its activities if seen to be associated with a “negative” report.

4.6.    Focus of mandate
As a pandemic accord would only be legally-binding to state parties, the committee’s monitoring function would be limited to assessing the reporting (timeliness, completeness, robustness) and compliance of state parties and it would not have a responsibility to assess global or regional organizations. It would focus only on assessing and verifying state reports concerning legally- binding elements of the pandemic accord and would not conduct surveillance or outbreak investigations.

5.  Proposed ‘fit’ within the ecosystem

Several proposals, initiatives, and reviews currently aim to strengthen PPR. Ensuring that these complement, rather than duplicate or undermine, each other, is a work in progress, as each is dynamic.

Below, we outline some of the potential interactions of the monitoring system described with existing and proposed structures. Notably, except for confidential reporting and direct inquiries (which would require little effort) and on-site investigations, the proposed system will not require new data – it will predominantly rely on existing sources and focus on the extent to which states provide complete, timely, and robust reporting to COP.

• IHR: The mandates of the pandemic accord and the IHR will likely be purposefully distinct; the IHR will likely be referenced within the accord but have a much narrower mandate in line with its current focus on the capacity to prevent, protect against, control, and provide a public health response to the international spread of disease. WHO member states are negotiating both, and proposed amendments to the IHR are scheduled to be presented to the WHA at the same time as the pandemic accord. Reports on states’ implementation of the IHR would be helpful for the independent monitoring committee as a data point for triangulation. The reverse, however, is not foreseen due to the likely narrower mandate of the IHR compared to the pandemic accord.
• The Pandemic Fund: The Fund will likely require organizations receiving funding to provide detailed proposals and reports. These could also be triangulation data points.
• Universal Health and Preparedness Review (UHPR): The UHPR assesses countries’ preparedness through self-reports, peer review, and external sources to inform WHO support for countries. It is currently in the pilot phase and will be a voluntary mechanism. The committee would draw on the UHPR’s findings, which will likely be relevant for pandemic accord monitoring. Still, the committee’s mandate would be broader, and the committee’s reviews would apply to all countries that are party to the pandemic accord, not just those that sign up for the UHPR.
• The Global Preparedness Monitoring Board (GPMB): The GPMB currently focuses on global processes and dynamics around preparedness on the basis that global preparedness is more than the sum of national preparedness. It does not focus on individual countries’ preparedness or compliance with international law obligations. There is, therefore, little potential for overlap of responsibilities or duplication. Global reports could be sources for data triangulation.
• A high-level political body for health threats: The Independent Panel for Pandemic Preparedness and Response and other bodies have recommended that UNGA establish a Global Health Threat Council (or similar), led by heads of state, to drive sustained high-level political commitment and action on health ³ The WHO Director-General suggested a similar body, although he proposed that it sit under the oversight of the WHA. More recently, the COVID-19 Lancet Commission seconded the proposal by suggesting the establishment of a Global Health Board composed of heads of government from each WHO region.² While the primary audience of the monitoring report is COP, any of these alternatives would serve as the forum for interaction with heads of state.
• WHO: This proposal maintains a vital role for the WHO to continue leading in health-related aspects of PPR and health in general through agreeing on the priorities, setting the normative standards, and providing the necessary support for member ⁴⁶ WHO would continue to lead in providing technical support and compiling state reports for the IHR and other monitoring, such as the UHPR.

6. Risks and Limitations

6.1.    Risks

There are several risks associated with establishing a monitoring mechanism of the kind proposed in this report. First, independence does not guarantee complete freedom from political maneuvering and member-state capture. It is, therefore, essential to ensure that funding is ring- fenced, unconditional, up-front, and sustained. In addition, we propose a monitoring mechanism that promotes public accountability through the involvement of civil society and transparency in publishing reports in the public domain. Such reports are often inaccessible and, as a result, of limited public use. We, therefore, propose accessible public reports, such as through visual tools, including scorecards and heatmaps.

Secondly, filing reports could be perceived as a “single point in time” activity. Mitigating this risk requires heightening the importance of regular follow-up, increasing in intensity the higher the risk of non-compliance or poor reporting.

A third risk is PPR being perceived under the purview of Ministries of Health only. Given the broader implication for society and the economy and the need for a coordinated whole-of- government approach, a core element of the proposal is that the monitoring mechanism report to a body consisting of or representing heads of state.

Fourth, there is a risk of duplicating existing systems or processes, as new governance mechanisms often do. For this reason, the proposed monitoring committee is to build on existing mechanisms and triangulate existing evidence rather than create new systems. There is also a risk of mission creep. To mitigate against this risk, the committee would specifically monitor compliance and the timeliness, completeness, and robustness of state reports for the pandemic accord. It would not make recommendations on any actions required.

Finally, several states currently oppose any efforts to allow inspections by multilateral bodies or other states because this would infringe on state sovereignty, which may reduce the possibility of a multilateral agreement that contains such provisions. The ability to triangulate data from different sources, including conventional and social media, civil society, and whistleblowers helps mitigate cases where inspection is impossible.

6.2.    Limitations
The injustice highlighted by the COVID-19 pandemic has brought broader conversations about power dynamics in the global health ecosystem to the forefront. Within PPR, in particular, the dominant global health security narrative is criticized for centering the protection of the global north from health threats in the global south. This debate is taking place on the background of growing debates around decolonizing global health, which recognizes the need for a significant shift of resources and power in global health. The demands of the movement to decolonize global health range from former colonizers paying reparations for the wealth they extracted from countries in the global south to communities having the power to create and develop their knowledge instead of it being imposed, to equitable decision-making power on the global health stage. These represent calls for a radical overhaul of the system.

We recognize the magnitude of this challenge and appreciate that the pandemic accord negotiations are a site of some of these debates. This report, and its proposal for independent monitoring of the pandemic accord, try to solve a specific problem with the global health ecosystem as it currently exists around ensuring accountability for negotiated obligations.

However, we are hopeful the accord will also address the inequitable distribution of resources and power in global health and issues of health justice, equity, universal health coverage, and the right to health.

7. Conclusion and way forward

Based on our analysis, we propose a committee that monitors compliance with the pandemic accord and the timeliness, completeness, and robustness of states’ reporting on their obligations under the proposed pandemic accord. The committee is designed to overcome several common challenges to the effectiveness of international treaties. Its mandate is focused and specific: triangulating self-reporting by state parties to the pandemic accord by reviewing a broad range of publicly available information, making direct inquiries, and accepting confidential reports.

Essential features include:

• High-level political investment by involving heads of state to maximize the extra-legal authority of the monitoring mechanism
• Verification of state self-reports using a variety of sources to produce a high degree of accuracy in assessing states’ compliance with the accord
• Involvement of a range of stakeholders in monitoring, including civil society, to promote broad systems of information and accountability
• Independence from representative organizations and donors to prevent being hamstrung or influenced by political interference or financial dependence
• Follow-up on recommendations and public reports, in addition to escalation to a high-level political body
• Informing resourcing decisions so that the identified gaps can be

This clear and specific mandate serves as a check-and-balance mechanism building on existing data and systems and conducting a critical function with a light administrative lift.

It is essential that monitoring and enforcement are at the core of the pandemic accord negotiations as they are essential for holding state parties accountable for their commitments.

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ANNEXES

Annex 1. Mapping of independent monitoring of other treaties
In October 2021, we reviewed bodies or organizations mandated to monitor progress towards commonly agreed global goals or compliance with international agreements. The review focused on identifying how independent monitoring is organized and the elements affecting autonomy, authority and impact of the monitoring. The findings are summarized below.

Methodology
The analysis is based on the review of web resources, and literature searched online. We included eight global bodies or organizations with independent monitoring functions informed by a broader review conducted in April 2021.^iv These included: the Independent Monitoring Board for Polio (IMB), Independent Accountability Panel (IAP), Human Rights Treaty Bodies, Human Rights Council (HRC), the International Atomic Energy Agency (IAEA), IMF Article 4 Mechanism, Finance Stability Board (FSB), and the Intergovernmental Panel on Climate Change (IPCC).

For each, we summarized the purpose, key monitoring activities and methodology, funding source, and composition (number of experts, selection process). To the extent possible, we also examined the level of autonomy, authority, and impact as well as outlined aspects that positively or negatively affect the impact (Annex 1^v).

Limitations
As this mapping relies on web sources, the findings are limited by results shown by the search engine and whether the content has been kept up to date or accurately reported. While we sought to include research evaluating effectiveness and factors influencing the impact of monitoring, the findings are not based on an exhaustive search of grey or peer-reviewed literature.

Findings
The initiatives included in the review represent a range of sectors from the health (IMB, IAP) to human rights (treaty bodies, HRC) to economy and finance (IMF, FSB) to nuclear safety (IAEA), and climate change (IPCC) (See summary table below). Based on the review, we identified thefollowing elements related to mandate, data use and reporting practices, and arrangement of the monitoring committee:

iv Lehtimaki S, Reidy A, Nishtar K, Darehshori S, Painter A, Schwalbe N. Independent Review and Investigation Mechanisms to Prevent Future Pandemics. A Proposed Way Forward. UNU-IIGH; 2021. http://collections.unu.edu/eserv/UNU:8032/nIndependent_Review_Final.pdf

v A complete summary with references is available in a separate Excel spreadsheet.

1. Mandate:

• Most initiatives conduct country-specific monitoring while keeping track of overall global developments in their respective fields (treaty bodies, HRC, IMF, IAEA, IMB, FSB). There are two exceptions with a global focus only: IAP tracks accountability for Global Strategy by theme, and IPCC takes stock of scientific evidence on climate change.
• Most are associated with an international agreement (treaty bodies, HRC, IMF, IAEA), a program or strategy (IMB for Global Polio Eradication Initiative, IAP for Every Woman Every Child).
• In addition to monitoring, all initiatives provide advice and

2. Data and reporting:

• Many initiatives base the monitoring on formal reports from countries/ stakeholders (IMB, treaty bodies, HRC, IAEA). Some conduct country visits to verify and complement the reports, for example, to consult with various stakeholders (IMF, IMB) or inspect the sites (IAEA, treaty bodies).
• All initiatives triangulate data, including reports by UN agencies or other organizations, civil society, academia, or other independent monitoring groups and experts.
• Some organize a specific session to review formal reports and provide The formal review can be either led by a committee (IMB, treaty bodies) or peers (HRC, FSB).
• Reports can be finalized either with (IPCC, treaty bodies) or without letting countries/stakeholders influence the findings (IMB).
• Most initiatives make the reports In the case of IAEA, a country can choose to publish the report, and in the case of IMF, the country can object to publishing.

3. Committee arrangements:

• Monitoring committees can be comprised of independent experts (IMB, IAB, treaty bodies, IAEA), volunteers (IPCC), staff (IMF), or member states or organizations (HRC, FSB).
• The size ranges from 5 to 25 individuals (IMB, IAB, treaty bodies) to 500 inspectors at IAEA to 700-800 volunteers at HRC’s Universal Periodic Review involves 47 member states.
• Among those with a limited term, the term ranges from 2 to 4 years, renewable 1-2
• Members are either elected (by member states for treaty bodies and HRC), directly appointed (by WHO DG for IMB, UNSG for IAP), or hired (IAEA, IMF). As an exception, FSB is a membership organization with organizational membership that operates through several standing committees.
• Most committees’ experts receive compensation, except for IAP and IPCC, which operate on a pro bono basis.

Based on our review, we identified the following elements considered to influence the level of autonomy, authority, and impact of independent monitoring:

1.  Autonomy:

• Autonomy from countries/stakeholders is emphasized by using independent experts that serve in their personal capacities for a limited period (IMB, IAB, treaty bodies, IAEA). IAP prohibited the candidacy of employees of the UN agencies.
• Monetary compensation is associated with increasing the independence and quality of candidates (e.g. the pro bono model of IAP is considered a hindrance to attracting good experts and creating dependencies to the home institutions of the experts).
• Countries/stakeholders’ influence on developing and publishing the findings and recommendations is controlled, for example, by publishing the report without alteration (IMB), issuing observations and recommendations even in case a country does not provide its formal report (treaty bodies) or having consent to publish as a default (IMF).
• Hosting arrangements diminish autonomy by creating competition and confusion about roles and responsibilities between the Committee and the host (IAB, hosted by the PMNCH/WHO).

2. Authority:

• None of the initiatives has a legal basis for obliging countries/stakeholders to follow the
• The authority derives primarily from non-legal factors, including social pressure and reputational and economic risks. For example, in non-compliance, IAEA can report to IAEA members, UNGA, and Security Council; and IMF may consider influencing through its other instruments, such as lending programs.
• A treaty-based mandate with specific member agreements equips some committees with extensive investigatory powers (IAEA, Subcommittee on Prevention of Torture/treaty bodies) or obliges members to provide the necessary information (IMF).

3. Impact

• A formal follow-up mechanism has the potential to enhance impact. For example, some human rights treaty bodies request follow-up reports on prioritized concerns between the formal state reporting.
• Formal engagement of a range of stakeholders, particularly from civil society, is associated with helping institutionalize the role of these organizations at the country level (HRC, treaty bodies).
• Extensive inspection rights help verify the country’s reporting; however, to be effective, it requires financial and human resources (IAEA).
• A clear and unified process for expert nomination/selection helps tackle politicization and contributes to the quality of committees (HRC).
• Broad expertise within committees is considered a positive element with the potential to identify issues and advice beyond a conventional For example, IMB uses experts outside the core epidemiological approach that help bring in new perspectives.
• Vague and too broad recommendations reduce the impact, making the implementation and monitoring difficult (treaty bodies).

Conclusion

In sum, independent monitoring is organized in several ways. The different bodies reviewed have a range of mandates, data and monitoring practices, and committee arrangements, all of which have implications on the autonomy, authority and impact of the monitoring.

Summary table of eight global bodies or organizations with independent monitoring functions

Annex 2. Literature reviewed

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Carlson J. Future Directions in IAEA Safeguards. Harvard Kennedy School Belfer Center for Science and International Affairs; 2018. https://www.belfercenter.org/publication/future- directions-iaea-safeguards

Carraro V. Electing the experts: Expertise and independence in the UN human rights treaty bodies. European Journal of International Relations. 2019;25(3):826-851. doi:10.1177/1354066118819138

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Collin J. Global health, equity and the WHO Framework Convention on Tobacco Control. Global Health Promotion. 2010;17(1_suppl):73-75. doi:10.1177/1757975909358363

Craig L, Fong GT, Chung-Hall J, Puska P. Impact of the WHO FCTC on tobacco control: perspectives from stakeholders in 12 countries. Tobacco Control. 2019;28(Suppl 2):s129. doi:10.1136/tobaccocontrol-2019-054940

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European Center for Constitutional and Human Rights. United Nations Fact-Finding Mechanism. ECCHR; 2010. https://www.ecchr.eu/fileadmin/Gutachten/Gutachten_Sri_Lanka_UN_fact- finding_mechanisms.pdf

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FCTC. WHO Framework Convention on Tobacco Control Parties. Published 2022. Accessed July 17, 2022. https://fctc.who.int/who-fctc/overview/parties

Food and Agriculture Organization of the United Nations. An introduction to monitoring, control and surveillance systems for capture fisheries. Published 1999. Accessed December 16, 2020. http://www.fao.org/3/V4250E/V4250E00.htm#toc

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GlobalChild Program of Research. Early Childhood Rights Indicators (ECRI). Accessed November 8, 2022. https://ecri.globalchildnetwork.com/index.php/content/heatmap

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Gostin LO, DeBartolo M, Katz R. The Global Health Law Trilogy: Towards a Safer, Healthier, and Fairer World. The Lancet Online. Published online May 15, 2017. Accessed August 18, 2022. https://papers.ssrn.com/abstract=2981074

Gostin LO, Mason Meier B and Stocking B. Developing an Innovative Pandemic Treaty to Advance Global Health Security. The Journal of Law, Medicine & Ethics. 2021(49):503-508. doi:10.1017/jme.2021.72

Gruszczynski L. The WTO and FCTC Dispute Settlement Systems: Friends or Foes? Asian Journal of WTO & International Health Law and Policy. 2017;12(1):105-133.

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