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TWN Info Service
on Health Issues (Oct21/21) Kochi/New Delhi, 31 October (Nithin Ramakrishnan and K M Gopakumar) – Despite the lack of consensus on the proposed pandemic treaty, the Bureau of the Working Group on Strengthening WHO Preparedness and Response to health emergencies (WGPR) still pushes a two-track approach in its zero draft report (Draft Report). This Draft Report prepared by the Bureau is expected to be finalised through negotiations during the 4th meeting of the WGPR from 1 to 3 November 2021. The Draft Report seeks endorsement of the following two recommendations from the World Health Assembly Special Session (WHASS) to be held from 29 November to 1 December.
[The 74th WHA through its decision 74(16) mandated the WGPR “to prioritize the assessment of the benefits of developing a WHO convention, agreement or other international instrument on pandemic preparedness and response and to provide a report to be considered at the special session of the Health Assembly”. The operative paragraph of the WHA74(16) states that WHASS shall be held with a view towards the establishment of an intergovernmental process to draft and negotiate such a convention, agreement or other international instrument on pandemic preparedness and response, taking into account the report of the WGPR.] Instead of providing recommendations on developing a WHO convention, agreement or other international instrument on pandemic preparedness and response, the draft report proposes a two-track approach i.e. targeted amendment of IHR, and the identification of the elements of a potential WHO instrument and modalities of its negotiations. To take forward the above recommendations the Draft Report proposes the following actions:
Though the draft recommendation does not mention the nature of the potential instrument, the Bureau, which comprises some members of the Group of Friends of the Pandemic Treaty, pushes for a legally binding instrument under Article 19 of the WHO Constitution. Paragraph 34 of the Draft Report under the sub-heading “conclusions and recommendations” states: “The WGPR assesses that in order to be successful, the way forward should include both the initiation of a new instrument negotiation on the basis of Article 19 and strengthening the International Health Regulations (2005), including implementation, compliance and targeted amendments to the Regulations, as part of a comprehensive approach”. A few delegations told Third World Network that there is no consensus regarding the new instrument, especially an instrument under Article 19 of the WHO Constitution. In this regard, it must be noted that even the latest non-paper of the Friends of a Pandemic Treaty also avoids reference to Article 19. It also did not use the phrase “pandemic treaty” or “Framework Convention on Pandemic Preparedness and Response”. The delegation from India during the 20 October 2021 deep dive session on a “new instrument” remarked critically that the benefits and risks of the varied instruments available to WHO must be comparatively studied. Only then can an informed decision be made as to the selection of any one of the instruments over the other. The lack of consensus on the proposed pandemic treaty resulted in the current draft recommendations proposing a two-track approach and does not fulfil the WGPRs initial mandate i.e. assessment of the benefits of developing a WHO convention, agreement or other international instrument on pandemic preparedness and response. The WGPR has so far not decided on any comparative benefits and risks of different legal instruments that could address the present gaps in health emergency preparedness and response law. Instead it has identified potential benefits of a new WHO convention, agreement or other international instrument in a generic manner. This is the exact reason by which the WGPR bureau is pushing ahead with a two-track approach. For instance, the Draft Report on another instance reads thus: “There is no “either/or” requirement, from a governance or legal perspective with respect to the instruments, such as whether to strengthen the IHR using its existing terms and provisions or adopt a new instrument: both are legally available, as well as complementary resolutions and decisions to address related issues such as WHO governance.” Nevertheless the Draft Report asserts that “the way forward should include both the initiation of a new instrument negotiation on the basis of Article 19”. This assertion is also inconsistent with the consensus formed in the WGPR to launch negotiations without deciding on the nature of the new instrument. The Draft Report itself shows such a consensus in WGPR in its paragraph 31: “As a result, a number of Member States have expressed openness to launching a negotiating process for a potential new instrument, while seeking to preserve flexibility in the type of instrument to be finalized as well as the potential for “quick wins” if some elements are ready to be agreed before a final agreement is adopted, making full use of the legal flexibilities outlined above under the WHO Constitution.” Furthermore, the recommendation in the Draft Report on the identification of the elements of a potential WHO instrument and modalities of its negotiations conveys that there is a consensus regarding the next step. It is to identify the elements of a potential WHO instrument and modalities of its negotiations. This means the WGPR has not zeroed down on a Article 19 instrument so far. The only document which points towards a relative analysis of different instruments is a WHO Secretariat Analysis. This analysis of the Secretariat, although it claims to be a relative study of the benefits and risks of various types of instruments, has treated the instruments separately in its study. It does not provide any convincing reason why a particular gap in the existing law should be filled by a new treaty under Article 19 instead of a regulation under Article 21 (which would mean appropriate amendment or revision of the existing IHR 2005). The Draft Report echoes many of the popular arguments as the benefits of a new WHO convention, agreement and other instruments, without a rigorous analysis of whether these benefits can be realized through amendments or revision of the IHR 2005. It has also not addressed the question whether the said benefits can be achieved only through a new WHO convention under Article 19. The Draft Report further lists some issues that fall outside of the scope of the IHR 2005 and asserts that they may be best addressed either through a potential new instrument or through another normative, policy or programmatic tool available through WHO. Here again the Draft Report does not provide a rigorous analysis. All these indicate that what has been identified by the WGPR are simply benefits of a new law in the field, not really of any specific instrument. The Bureau therefore is using the Draft Report to push forward the idea of a treaty, irrespective of the content of the consensus in the WGPR. The Bureau’s Draft Report also reflects an agreement among Member States to maintain a coherent and inclusive negotiating track to cover all aspects of the WGPR mandate. This is to limit pressure on all delegations, but especially small delegations who cannot engage in multiple parallel work streams. However, even with the present work of the WGPR, there are multiple scheduling issues, since many other events such as WTO TRIPS Council Meetings, and Global Health Summit 2021 coincided with WGPR meetings. Even the WHASS will be held in parallel with the 12th Ministerial Conference of the WTO. The Bureau also falls short in capturing many important themes which characterize the present context of negotiations, although there is an assertion in the Draft Report that a future report of the WGPR to be submitted to the WHO Executive Board may contain discussions of the meetings of the WGPR, deep dive sessions and the written submissions received by the WGPR. The following themes are missing in the Draft Report: First, the Draft Report is not reflective of the growing divide between developing countries and developed countries as observed in the WGPR meetings. For example, developing countries like Brazil insisted on a strong commitment on improving equitable access to health care products and services as a condition to move ahead. However, many developed country Member States did not even identify “equity” as one of the pillars of the global health architecture. Further, the Draft Report fails to describe the circumstances in which “equity” gained prominence in the WGPR discussions. The draft simply says the WGPR studied all the recommendations of the various expert panels and committees that reviewed WHO and Member State functioning during the COVID-19 pandemic response and classified them into four categories: (1) leadership and governance; (2) systems and tools; (3) finance; and (4) equity. However it fails to record the circumstances in which the fourth category “equity” was incorporated into the WGPR studies, after specific requests from developing country Member States, including South Africa, during the second meeting of WGPR. The WHO Secretariat’s initial report on the preliminary findings on the recommendations of various committees did not contain this category. Second, the Draft Report says “status quo is unacceptable to anyone” as one of the major points of the consensus among Member States, but fails to describe what that status quo is. The crux of the status quo in the current international health emergency legal regime is that it does not promise or provide any help or assistance to a country which reports an outbreak in its territory. Though the IHR has provisions to offer the required financial, technical and material assistance to required Member States, often such measures are extended as charity and outside the legal framework of obligations in the IHR. Further there is no assistance to build resilient health system among Member States to enhance their public health preparedness and response abilities. Thus developing country Member States are concerned that the IHR obligation is reduced to only an obligation to inform on the outbreaks without any corresponding duty on other Member States to provide assistance. This is the status quo which is unacceptable, yet the Draft Report uses this phrase without offering any explanation. Finally, the Draft Report is also silent on significant divergences among Member States in the issues such as (1) soft law – hard law combinations to be used in the new instrument, (2) opt-in and opt-out models available for new instruments, and (3) the question whether the discussion about the new instrument should happen in parallel or sequentially to the strengthening of existing instruments and institutions. While there are few references to the discussion on the opt-in and opt out mechanisms in the Draft Report, the debate on soft and hard law combinations is hardly mentioned. With regard to going forward, the draft shows a preference for a parallel process, whereby a “new instrument negotiation” can proceed in parallel to the strengthening of existing laws and institutions without waiting to see whether existing instruments can be sufficiently reformed or not.+
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