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Info Service on Health Issues (Jun23/03) 14 June, Geneva (Nithin Ramakrishnan) – Developing Country Member States from various regions call for legally binding obligations in the proposed WHO Convention, Agreement, or Other International Instrument on Pandemic Prevention, Preparedness, Response and Recovery (WHO CA+) that could deliver equity. This took place during the resumed 5th meeting of the Intergovernmental Negotiating Body (INB) which is mandated to develop the WHO CA+ when Member States made initial remarks on a text prepared by the INB Bureau. The resumed INB5 is being held at the WHO headquarters in Geneva in a hybrid format from 12 to 16 June 2023. WHO Member States were invited to provide textual inputs on a Zero Draft of WHO CA+ circulated between February and 22 April, following which the current Bureau’s text was developed. The current text was circulated during the second half of May for consideration of the resumed INB5. The Bureau’s text has however neglected several of the developing country proposals made to the Zero Draft which contain concrete legal obligations and ideas on how to deliver equity in pandemic prevention, preparedness, response and recovery (PPRR). During the opening plenary of the resumed INB5, developing country Member States thus called upon Bureau and other members of the INB to strengthen the Bureau’s text especially through developing concrete legal obligations for delivering equity in PPRR. 19 developing countries from different WHO regions (Bangladesh, Botswana, Brazil, China, Colombia, Dominican Republic, Fiji, India, Indonesia, Kenya, Malaysia, Mexico, Pakistan, Paraguay, Peru, Philippines, South Africa, Tanzania, Thailand) that identified themselves as “Group for Equity” made a joint statement. They expressed appreciation for the Bureau’s efforts in preparing the text with the aim of bringing Member States closer, keeping in mind the short timeline available. But then the Group went on to state that they would like to ensure the “INB process results in a WHO CA+ that is just, fair and cognizant of the circumstances faced by developing Member States.” This, according to the Group, can “only be achieved through concrete provisions that effectively operationalize equity”. They expressed their preparedness to work “to further strengthen the Bureau’s Text without prejudice to referencing proposals previously made in the Compilation Text when and where they are appropriate.” [The Compilation text refers to a 190-page document that has compiled all Member State inputs received on the Zero Draft of the WHO CA+.] Columbia later delivered a statement on behalf of Latin American countries (Argentina, Bolivia, Brazil, Chile, Costa Rica, Dominican Republic, Ecuador, El Salvador, Guatemala, Honduras, Mexico, Nicaragua, Panama, Peru, Paraguay, Uruguay, Venezuela). While finding the Bureau’s text as the basis for continuing to move forward the discussions, the group stated as follows: “However, there is still much to be done. In particular, it seems to us that we must strengthen the commitments aimed at addressing equity gaps to prevent and respond to future pandemics. We reiterate that this instrument is an opportunity for Member States to reach a practical and relevant agreement, and not just a document with good intentions.” The Brazilian delegation, even though Brazil is a member of the INB Bureau, critiqued the Bureau’s text without mincing words. It identified inconsistency and imbalance in the use of legally binding language in the Bureau’s text and stated as follows: “In order to enhance the text, we need to ensure consistency and have a balanced approach towards legally binding language. For instance, we have identified many obligations on prevention and One Health, whereas paragraphs dealing with R&D, transfer of technology and transparency, employ language with limited application. We understand that some Member States would prefer a more diluted language for those points, but we are negotiating a legally binding instrument and not a resolution. For a catalogue of existing mechanisms and a list of recommendations, we do not need this process.” South Africa, another member of the INB Bureau read out the statement on behalf of 47 Member States of the Africa Group. It also pushed the resumed INB5 to develop WHO CA+ without compromising on equity. It stated as follows: “The African Member states recognize the hard position that the Bureau finds itself in, trying to keep everyone at the negotiating table. However, it is unfortunate that in that process, in our view, the core of what this instrument is supposed to address, namely Equity, has been presented in a weakened or reduced format, especially in those articles that would result in a meaningful realization of Equity. The Zero Draft had many deficiencies that proposals by the African Region sought to correct. This draft, however, even goes backward from the inadequate equity measures in the Zero Draft. We hope that the Bureau and this session will find a way to agree on key issues of equity, not to be compromised, to address shortcomings exposed by the Covid-19 pandemic, which warranted the establishment of this important Member States led Intergovernmental Negotiating Body process.” Namibia, aligning with the Africa Group statement, added that it is concerned with the way the Bureau’s text represents the majority of provisions that seek to operationalize equity. Namibia finds such provisions, just like in the case of the Zero Draft, covered in a legal language that is discretionary, non-binding and aspirational. It called out that many of the mechanisms that serve the purpose of equity have been proposed as ideas that need to be detailed through the working of the Conference of Parties and not as details to be agreed upon in the INB. (The Conference of Parties would only be constituted when a treaty enters into force.) Botswana also expressed concern over equity provisions, noting that the revised Bureau’s text proposes softer non-committal language on Articles that seek to address equity. It saw this as “a departure from the overall intent and purpose of this International Treaty.” Malaysia, aligning with the statement made by the Group for Equity, reminded the INB of the World Health Assembly Second Special Session’s SSA2(5) decision of 2021 that contains the commitment of Member States to develop a new instrument inter alia prioritizing the need for equity. Malaysia stressed that “the lack of equitable and timely access by all countries, notably developing countries, to pandemic response products has been one of the greatest failings of the global response. Without equitable and timely access to pandemic response products, the oft-repeated maxim of “leave no one behind” cannot be achieved.” On substantive issues Bangladesh, which stated that its focus is on strengthening governance, architecture and capacity of global health systems, told the meeting that it appreciates efforts of the Bureau to accommodate some of its suggestions. However, Bangladesh went on to say that its proposals on (i) Global production and distribution mechanism, (ii) Technology Access Pool, (iii) Intergovernmental Panel on Pandemic Science, (iv) Access and Benefit Sharing, (v) financial mechanism and (vi) Common but Differentiated Responsibility have not seen much reflection in the Bureau’s version. The delegate said it would make inputs on each of these elements during a later stage. Bangladesh’s concerns were mostly affirmed by several other developing country statements because they focussed exactly on the similar provisions. For example, the Latin American group of countries wanted to focus on Article 9 (research and development), Article 11 (technology transfer), Article 12 (access and benefit sharing), Article 13 (supply chain and logistics). Botswana called for strengthening the language of the Bureau’s text to be more binding and obligatory on equity as reflected in the compilation text and the Africa group submission. It further said that “This includes the critical aspects of preparedness such as access to financing, adequate and capacitated multidisciplinary health workforce, technology sharing and health system support. This also requires ensuring interlinkages and cross referencing on Articles that address equity, for example Article 9, 11, 12, 13… in order to ensure synergy.” The Africa Group stated that “as a region, we are committed to ensuring that equity remains central to the WHO legally binding International Instrument and are prepared to work closely with the Bureau and all Member States to strengthen the Bureau’s Text for the realization of this goal. These would include commitment to implementing common but differentiated responsibilities and respective capabilities in pandemic prevention, preparedness, response and recovery of health systems; transfer of technologies as well as sharing of know-how and intellectual property rights; building capacities in local manufacturing in addressing pandemics; providing technical and financial support; establishment of a comprehensive access and benefit sharing mechanism; and ensuring that health products are treated as global public goods and shared accordingly.” The Group for Equity meanwhile argued that technical solutions and approaches critical to ensuring equity should be operationalized in a meaningful way through the text, indicating further preference to get equity detailed through the INB itself. Nigeria highlighted that the Bureau’s text puts too much responsibility on developing State Parties, and this needs to be reviewed. It also said that the use of words and phrases such as “shall encourage”, “promote”, or “incentivise” does not guarantee the concept of equity as they do not create concrete legal obligations. It stressed the need to create obligations on technology transfer, access and benefit sharing, research and development, financial mechanism, governance, supply chain and logistics, etc. Namibia welcomed Article 19 on financing which proposes the establishment of a fund for PPPR purposes and the language on debt relief for developing countries. The Africa Group sought clarifications on how the funds will be raised and mobilised from all sources as proposed, including through the annual contributions by Parties or through a global tax system by all bodies contributing towards the Fund. The Group requested information from the Secretariat on how the level of assessed contribution will be set and whether there are lessons that can be learned from other instruments. Brazil, which welcomed the Bureau’s proposals on Article 17 that consider the differences in the level of development of States Parties and their implications for the implementation of obligations to be developed under WHO CA+, expressed concerns about the One Health Approach. It stated “we still need to evaluate whether this treaty should have so many measures related to animal health and other One Health-related issues. While we do not underestimate their importance and are fully aware of the linkages, our priority is human health. This loss of focus could lead Member States to dedicate vast amounts of time discussing topics that are better dealt with in other fora or through different means”. On the process and the use of the compilation document While most of the developing countries expressed a willingness to go forward with discussing the Bureau’s text, very clearly several of them indicated the necessity to include different textual proposals made by Member States on the Zero Draft that have been provided in the compilation text. The Group for Equity emphasised the need for referencing proposals from the compilation text as appropriate. Bangladesh stated that “From the very beginning of INB meetings, Bangladesh spoke of equity-based actions and deliverables in the pandemic instrument. Our suggestions in the compilation texts reflect them at length…. The compilation texts are rich in content. Hence, we suggest saving this document to guide our crafting of the first draft and discussion later on.” Indonesia, although expressing a wish against the tendency of reinserting the text from the compilation document, agreed that the compilation text could serve as a good reference point to formulate new and improved alternative texts. Namibia categorically stated that “my delegation will engage constructively to ensure that some of the stronger elements on equity contained in the compilation document and which have been put forward by developing countries, including those by the 47 members of the African Region continue to be considered as part of these negotiations.” Informal meetings on difficult issues Columbia on behalf of Latin American countries expressed support for holding informal meetings to make progress in building consensus among the different proposals and proposed that the informal meetings could focus on Articles 9, 11, 12 and 13. It further stated: “However, it is necessary to be clear about the objectives of these meetings and not to hold meetings in parallel, in order to ensure inclusiveness and transparency. It is also important that the meetings be held in a hybrid format and that the working methods clearly state that any results should be presented for consideration by the Drafting Group and that this will not be considered as agreed language.” The Bureau in its program of work which was circulated last week to the Member States have proposed the same: “…with regards to Articles and/or issues that are deemed as requiring further reflection taking into account the discussion during the drafting group, the Bureau will propose a schedule of intersessional informal meetings, facilitated by interested Member States. The outcome of the intersessional informal meetings, are expected to be reported at the INB6 meeting in July 2023.” Indonesia also pushed for the initiation of informal conversations, during the session or inter-sessional, to have a more in-depth discussion on difficult but necessary subjects. It was of the view that the informal settings would hopefully allow more useful exchanges of ideas and crystallise proposals before going into text-based discussion. Bangladesh on the other hand stated that it is hard-pressed with simultaneous issues just like several other small delegations and said that it is not always able to attend the informal sessions/discussions. It added that “the drafting group should [therefore] be the platform to improve the texts while informal sessions can be considered for minimising gaps and building consensus”. It is a fact that has been raised multiples times in intergovernmental negotiations, that small delegations that find it difficult to attend all the informal meetings will have a significant disadvantage in defending their textual proposals. In this particular case Bangladesh is one of the delegations that has made extensive proposals to the Zero Draft of WHO CA+.
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