TWN Info Service on Health Issues (Nov23/02)
5 November 2023
Third World Network

WHO: Proposed Modalities for INB7 compromises fair negotiating process

5 November, Geneva (TWN) – The proposed modalities for the 7th Meeting of the Intergovernmental Negotiating Body (INB) on the pandemic instrument compromises on a fair negotiation process as it frustrates Member States’ right to propose textual amendments to the Bureau’s draft negotiating text.

The proposed modalities are circulated as “Practical aspects relating to the conduct of the seventh meeting of the INB” by the WHO Secretariat on behalf of the INB Bureau to Member States and relevant stakeholders.

INB7 will take place at the WHO headquarters in Geneva on 6 to 10 November 2023 in hybrid mode.

The draft Negotiating Text (English version) itself, which was circulated by the Bureau on 16 October 2023, is unbalanced as it promotes hard obligations on surveillance and information sharing, while providing soft obligations on equitable access to health products. The draft negotiating text does not contain concrete provisions to change the status quo in public health response to pandemics.

The proposed agenda item 2 of INB7 is the consideration of the draft negotiating text in two parts. The first part will be the consideration of the draft negotiating text in the plenary. Then the drafting group will engage in an article-by-article consideration of the draft negotiating text. The drafting group is only open to Member States, Associate Members, regional economic integration organisations, as appropriate, and the observer delegations of Palestine and the Holy See.

Paragraph 3 of the proposed modalities also provides certain guiding principles and questions for the INB7 drafting group.

The proposed modalities lack clarity on several points, but they retain the ability of the Bureau to make further text suggestions to the draft negotiating text.  

As per the proposed modalities Member States are invited to work to build consensus on each Article while proposing textual suggestions. The proposed modalities read:

“…Delegates are encouraged to consider the text holistically, and refrain from grammatical edits. The negotiation will aim to build consensus and, to the extent possible, identify consensual language, on the continued understanding that nothing is agreed until everything is agreed. Prior to proposing textual proposals, delegations are encouraged to consult and propose text which potentially enjoys cross regional and group support. Textual suggestions will be projected on screen, below those in the proposal for negotiating text, for consideration. Delegations are encouraged to work to build consensus on each Article. In the event of divergent positions, interested delegates will be encouraged to conduct informal breakaway discussions and report back to the drafting group with consensual language. Informal breakaway discussions and informal meetings may be facilitated by members of the Bureau or co-facilitators...”

However, it is not clear whether the negotiations are for building consensus on the final text or the text in the proposal for negotiating text. In the first case, it means the Bureau’s proposal for negotiating text is accepted as the de facto negotiating text, without providing a fair opportunity to Member States to insert amendments to the Bureau’s draft negotiating text. It would thus convert the Bureau’s draft into a negotiating text without such amendments.

In the second case, it would mean that after negotiations arrive at a consensus for a negotiating text, there will be further negotiations to agree upon what constitutes the final text of the pandemic instrument. This means the draft modalities require Member States to make compromises even before their text suggestions are included into the negotiating text.

The interim report of the drafting group meeting held on 4-6 September states: “The INB Bureau will develop and circulate to the INB for its consideration a proposal for negotiating text of the WHO CA+ by 16 October 2023… It was agreed that the proposal for negotiating text would be without prejudice to the right of any Member State to present textual proposals and to the status of the compilation document.”

This means that the draft negotiating text circulated by the INB Bureau is “only a proposal for negotiating text” and the Member States are free to present or incorporate either new textual proposals or textual proposals that are already part of a compilation text before adopting the Bureau’s proposal as negotiating text.

Strangely, there is no agenda item proposing to discuss the question of whether the proposal for negotiating text is acceptable to all Member States as a negotiating text upon which they can engage each other on a line-by-line basis. This leads to an unwieldy process and can confuse Member States as to whether they are negotiating to build consensus for the final text to be adopted or for simply incorporating their text into the draft negotiating.

The proposed modalities raise concerns relating to fairness and potentially undermines Member State-led negotiations:

(i) Pressure on Member-States to find consensus before proposing texts

The draft modalities say: “Prior to proposing textual proposals, delegations are encouraged to consult and propose text which potentially enjoys cross regional and group support.”

While this could be considered as common sense, it might lead to undue pressure on Member States that want to propose texts into the negotiating document. Certain regions have a diverse set of Member States, such as developed and developing states, small island states, rich and low-income countries etc. Hence it is extremely difficult to reach pre-textual negotiation consensus.

This could mean that while a Member State is placing textual proposals, the chair of the drafting group meeting may put pressure on that Member State asking whether it has reached out to fellow delegations or whether its proposal can potentially enjoy support or whether the proposal enjoys consensus etc., prior to inserting the text for further negotiations. This will effectively reduce the number of proposals made by the Member States.

(ii) Differential treatment of Member State proposal and Bureau’s proposal

The Draft Modalities also state that, “Textual suggestions will be projected on screen, below those in the proposal for negotiating text, for consideration.”

This means that Member States text suggestions will be effectively considered as alternative text to the Bureau’s draft negotiating text. Thus, the Bureau’s draft negotiating text is kept intact without any scope for text evolution through Member States’ text suggestions. This is in contrast to long established inter-governmental negotiations process and practice where a state’s textual proposal is incorporated into a draft that is first agreed to be the basis to start text negotiations. Alternative text from other states can then be included at a later stage if work around one text cannot reach consensus yet.

Member States are also required “to work to build consensus on each Article” and if there are divergent positions “interested delegates will be encouraged to conduct informal breakaway discussions and report back to the drafting group with consensual language”. It is not clear what happens if there is no consensual language. The only guidance available in this regard is that the Bureau can “propose suggested text as it finds appropriate to further the work of the INB.”

Thus, the proposed modalities risk forcing Member States into informal negotiations even before the launching of formal text-based negotiations. A similar informal negotiations process took place from June to September this year and did not result in desired outcomes and yet the Bureau is proposing to continue the same practice. According to an observer, it is unlikely that Member States will make concessions in an informal negotiation prior to the launching of formal negotiations.

Furthermore, it is stated that the co-chairs will describe the objectives of an Article and Member States will be invited to consider whether the text in the Article aligned with the objectives and whether it is practical or effective in addressing challenges, as well as why. Interestingly, in the proposed modalities, the Bureau declares that it aimed for balance in developing the draft negotiating text, reflecting all ideas presented, in a workable and meaningful way.

This means in the event of divergence among Member States, especially in the absence of foreseeable consensus on their proposals, the Bureau’s proposals will be the default text for negotiation, claiming itself as a representation of balance of ideas.

(iii) Managed process causing inordinate delays

The INB process has been inordinately delayed in developing a negotiating text.

Effectively from February 2023 to November 2023, several rounds of formal and informal negotiations have taken place but there is still no consensus on what could be a “negotiating” text. The Bureau, with the aid of the Secretariat, has produced text after text without generating convergence of ideas and at the same time developing country Member States' proposals do not find their way into the draft text.

The sequence of texts produced by the INB Bureau, i.e. Zero Draft, the Bureau’s Text, and the Draft Negotiating Text have shied away from developing effective obligations for Member States and institutional mechanisms that can deliver equity. The draft negotiating text is unbalanced towards the interests of developing countries since there are no obligations that can actually operationalise equitable access to health products and technologies, while surveillance and information sharing obligations are pretty much concrete.

The process is all set to continue, with all the confusions mentioned above, effectively leading nowhere but to subsequent versions of text to be produced by the Bureau, with the aid of Secretariat, practically retaining the status quo. This form of managed process surprisingly is being defended in the name of efficient and speedy conclusion of negotiations by May 2024, although real text-based negotiations have not taken place so far.

Thus, the proposed modalities infuse an unfairness in the negotiating process undermining the efforts of developing countries to introduce equity in pandemic prevention, preparedness and response.+