IBA Article: Preparing the law for the next pandemic

The impact of the Covid-19 pandemic is still reverberating across many areas, from procurement to employment and human rights. Global Insight assesses how the experience will prepare us – and the law – for future pandemics.

It’s highly unlikely that the Covid-19 pandemic will be the last such worldwide event. Plans are therefore being made in numerous jurisdictions to prepare for a future pandemic, responding to the experience of Covid-19 and aiming to apply the lessons learned, from a practical point of view but also in terms of law and policy.

These plans include setting up government-level agencies to develop a national response strategy, signing contracts with vaccine manufacturers, improving healthcare infrastructure, requiring medical facilities to hold certain volumes of stock, collecting and sharing pandemic-related data and implementing new laws.

In the UK, the Health Security Agency has launched a Vaccine Development and Evaluation Centre to develop new vaccines for both the country and worldwide. The Centre’s work will target ‘deadly pathogens with pandemic potential’ for which there’s currently no vaccine. The government has also negotiated a deal with vaccine manufacturer Moderna to establish an Innovation and Technology Centre in the UK with capacity to produce up to 250 million vaccines a year.

The Covid pandemic caught everyone off foot […] there was a real lack of a structural response

Melinda Taylor
Former Co-Chair, IBA Human Rights Law Committee

In Europe, the EU FAB network has been established through a framework contract between the European Health and Digital Executive Agency and four EU-based contractors. These four companies will ‘reserve manufacturing capacities for the EU to produce vaccines in case of public health emergencies’.

The EU has also developed Pandem-Source, an IT platform that will ‘identify, map and integrate multiple pandemic related data into a coherent pandemic-management database’. This is part of the PANDEM-2 project to identify ‘priority research needs for pandemic preparedness and response in Europe’.

The European Commission, meanwhile, has created the Health Emergency Preparedness and Response Authority (HERA) ‘to prevent, detect, and rapidly respond to health emergencies’. The Commission says that in an emergency, HERA will be tasked with ensuring sufficient availability of vital supplies such as medicines, vaccines and personal protective equipment (PPE). The EU FAB network contract was signed on behalf of HERA.

In the US the government has set up the Office of Pandemic Preparedness and Response Policy, which will be ‘charged with leading, coordinating, and implementing actions related to preparedness for, and response to, known and unknown biological threats or pathogens that could lead to a pandemic’.

Roberto Durrieu, former Pro Bono Initiatives Officer for the IBA Criminal Law Committee, Managing Partner of Estudio Durrieu in Buenos Aires and counsel at the International Criminal Court, says it’s only the very sophisticated countries that are planning for the next pandemic. The rest of the world is more focused on moving on from the Covid-19 pandemic, for example through digitising their systems.

The need for solidarity

Many countries were unprepared for the Covid-19 pandemic and are beginning to understand how this affected their response. ‘The Covid pandemic caught everyone off foot’, says Melinda Taylor, former Co-Chair of the IBA Human Rights Law Committee and counsel at the International Criminal Court. ‘No-one had systems in place, and no-one thought through the ramifications of various aspects [of the response] […] there was a real lack of a structural response.’

There’s a desire to learn from this experience to do better next time. The UK has set up its own inquiry, for example, to learn lessons for future pandemics by examining how the country responded to Covid-19.

For Catherine Longeval, former Co-Chair of the IBA Healthcare and Life Sciences Law Committee and a partner at Van Bael & Bellis in Brussels, the question is not if there will be another pandemic, but when – and its timing would affect planning.


Doctor Ruxandra Divan, rests in the Intensive Care Unit (ICU) for COVID-19 patients at “Hopitaux Civils de Colmar” in Colmar, France, 15 December 2021. REUTERS/Yves Herman

If it happens in the near term, public awareness will be high and there will be recent experience of rolling out mass testing and vaccinations. However, memories of the social and economic costs of Covid-related restrictions might make it a challenge to obtain support for similar measures. In contrast, if the next pandemic is 20 years away, collective memories will have faded. There will be more communications work to do but equally the population may be more open to restrictive measures.

To address these factors, pandemic plans should be reviewed on a regular basis. ‘Pandemic preparedness is an evolving process’, says Chukwukelo Ileka, an associate at Jackson, Etti & Edu in Lagos, ‘and the success of these efforts can only be determined by their ability to respond to real-world situations’. Longeval says pandemic plans should also address misinformation, which was rife during the Covid-19 pandemic, leading to high rates of vaccine refusal. ‘Education and information are key’, she says.

Some jurisdictions had pandemic plans in place before Covid-19, but these weren’t necessarily followed. Future planning should consider what went wrong and how initial feelings of panic can be addressed.

A pandemic would probably have been on risk registers before the outbreak of Covid-19, but most likely it wasn’t at the top of them. Roger Barker, Director of Policy and Corporate Governance at the UK Institute of Directors, says that ‘people find it hard to imagine unlikely things happening’. Scenario testing could help focus minds on pandemic plans and their implementation, which would hopefully combat panic – but Barker highlights that testing isn’t ‘a silver bullet’.

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