TWN Info Service on Health Issues (Jan24/02)
9 January 2024
Third World Network

WHO: INB to continue informal discussions, aims at another draft negotiating text version

9 January 2024, Geneva (TWN) – The Intergovernmental Negotiating Body (INB) mandated to develop a pandemic instrument chooses to continue with informal discussions on the various proposals from Member States, without designating the Bureau’s proposed negotiating text (draft negotiating text), as the “Negotiating Text”.

The resumed 7^th meeting took place on 4 to 6 December 2023. The report of the resumed session, states:

“The INB requested the Bureau Vice Chairs and the subgroup co-facilitators (drafting subgroups) to continue holding informal discussions with Member States, with a view to producing text of their respective subgroup’s Article(s) by 15 January 2024 for the consideration of the INB at its eighth meeting, on the continued understanding that nothing is agreed until everything is agreed…

…With respect to the Articles in the proposal for negotiating text which are not presently under consideration by subgroups (as listed above), the Bureau was requested to provide further refined textual proposals, as appropriate, for those articles which the Bureau is of the view that progress will be best made during the period leading up to the eighth meeting of the INB. Such refined textual proposals will take into consideration input received from the drafting group to date, as appropriate.  The Bureau encouraged drafting group members to volunteer to support this process. All textual proposals emerging from these processes will be shared through the Bureau and the Secretariat with the drafting group members in advance of the eighth meeting of the INB”.

Thus the 8^th INB meeting will consider the texts emerging from the informal subgroup process as well as the Bureau’s refined proposals on those Articles which are outside the mandate of drafting subgroups. Four different drafting subgroups address Articles 4, 5, and 6; Articles 10, 11 and 13; Article 12; and Articles 19 and 20 respectively.  

This also means that the textual proposals made by the Member States during the 7^th INB session are still not part of the draft negotiating text. The INB empowered drafting subgroup co-facilitators, Vice-Chairs well as the INB Bureau to produce text for consideration at its 8^th meeting.

It must be noted that while drafting subgroups are open to all WHO Member States, not all delegations can effectively negotiate, especially those countries whose lead negotiators are from capitals, and not from Permanent Missions in Geneva. Several developing countries with small delegations will have thus limited influence on the new text that will be produced for the consideration of the 8^th INB.

During the 7^th INB Member States continued to place text and question each other’s proposals, without engaging in a real negotiation to arrive at consensus language. The Bureau and Co-facilitators facilitate this form of engagement and take into account the discussions in order to develop their own compromise text proposals and thus avoids the insertion of proposals from Member States. 

According to a developing country delegate, the “INB Bureau takes no effort to make Parties negotiate on text, especially on issues like equity. Instead, they keep waiting for Parties to provide statements and to cast doubts on each other's proposals. This approach does not allow Parties to talk to each other in a constructive manner. The Bureau has to actively ask questions like whether text proposed by such and such country is acceptable. If not, they must ask “why” and also ask the floor what is the alternative text proposal where the interests of proponents as well as interests of others can be brought together. Here however, the Bureau leaves the discussion unattended and creates space for the WHO Secretariat to draft compromise text proposals in their name.”

The INB Bureau justifies this approach citing the May 2024 timeline adopted by the World Health Assembly Special Session for concluding the negotiations. At the same time, the WHO Secretariat, which actively advocates for the negotiations to conclude by May 2024, proposes a framework approach in the pandemic instrument, where all major operational understandings relating to equity (equitable access to health products and financing etc.) will be delegated to the Conference of Parties that will be convened after the entry into force of the agreement.

A framework approach would result in a situation whereby developing countries end up undertaking obligations on enhancing surveillance and sharing of information without getting any legal commitments from developed countries to facilitate equitable access to health products developed using the information obtained from the surveillance in developing countries.

WHO Secretariat’s nudge to discuss coordinating existing financial mechanisms

During the drafting subgroup meeting on Articles 19 and 20 (common but differentiated responsibilities and new financing mechanism respectively), the WHO Secretariat made a presentation indicating the existence of several funds and financing options, mostly outside WHO, and proposed that INB should think about coordinating these existing  funds. Although the Secretariat did not reject the new financial mechanism proposed by the developing countries, it shifted the focus of deliberations from the proposed new financial mechanism.

The WHO Secretariat’s proposal overlooks the fact that these existing funds are governed by other international organisations such as international financial institutions that are independent of WHO. INB cannot decide to coordinate them, but only request or mandate the WHO Secretariat to work with those organisations. However, such a mandate cannot empower WHO to coordinate funding priorities of these existing funds, it can just communicate Member States’ preferences to the governing bodies of existing funds. This is something which WHO can do under its Constitution and there is no need for a new legal provision for this function. In fact, WHO is already carrying out such functions in certain contexts such as the World Bank’s Pandemic Fund.

It was learnt that India clearly called for setting up proper priorities, such as surveillance and response capacities and allocations in any funds related to the pandemic instrument. Similarly, Norway explicitly recognised the need for a new fund. However, countries like the United Kingdom, Germany and the European Union, in line with the Secretariat's presentation, focussed on the need for coordinating finance.

Discussion on prevention, surveillance and preparedness

Member States reportedly raised the issue of duplication of surveillance requirements while discussing provisions on Articles 4, 5 and 6 (on prevention and public health surveillance, one health approach and preparedness respectively). Many Member Sates expressed “avoiding duplication in the obligations relating to capacity building, especially as all the three provisions sought to considerably increase the surveillance capacities multi-fold”.

 

Regarding preparedness and monitoring, the WHO Secretariat stated that the current mechanism, i.e. States Party Self-Assessment and Reporting Tool (SPAR) is a self-reporting tool, and it helps countries to assess one’s own capacities as listed in the International Health Regulations (IHR) 2005. However, referring to the COVID-19 pandemic response, the WHO Secretariat stated that some countries scored very high in the SPAR but did not perform very highly in reality. Countries like the United States, Germany and China have therefore asked for a discussion about improving the tool for monitoring preparedness levels of the Parties.

Interestingly, another major point the WHO secretariat and developed countries are keen in promoting is independent monitoring and preparedness review of public health capacities. In calling for an independent monitoring mechanism several cited reasons that self-reporting is not enough, as pointed above by the WHO Secretariat.

The developed countries as well as the Secretariat hinted that the capacities, indicators, attributes that have been used in the SPAR remains unchecked for its quality and comprehensiveness. These were developed by the WHO Secretariat and experts based on their interpretation of Annex 1 public health capacities of IHR 2005 and there has been very little intergovernmental scrutiny over the identification of such a framework for evaluation and self-reporting.

However, the discussions relating to independent monitoring and evaluation have so far not addressed the question as to who will develop the evaluation framework to be employed in independent monitoring and whether the Conference of Parties will have a role in deciding such a framework. It must also be noted that the discrediting of the SPAR comes at a period, where the tool clearly show gaps in the response capacities, and developed countries and donors seek to continue to fund expanding surveillance capacities. 

According to a developing country delegate, “we recognize the importance of pandemic prevention and preparedness, nevertheless, we don’t see merit in current Articles 4, 5 and 6. There is only one clear obligation emerging from these three provisions i.e. establishing surveillance and sharing of information. The developed countries who speak more on these provisions also do not seem to suggest other concreate prevention or preparedness measures. Discussions will not move ahead in this regard, if the proponents themselves don't know what more needs to be done other than conducting surveillance. We are doing enough public health surveillance in the context of health systems, now they want us to expand it further to hotspots like wildlife reservoirs of pathogens; even before we strengthen other elements of our health system like primary health care facilities or access to health products.”

Lack of clarity on the outcomes of subgroup process

While the INB Bureau will be preparing a revised text for other parts of the proposed negotiating text, the drafting subgroups will prepare texts on Article 4,5 and 6; Articles 10,11 and 13; Article 12; Articles 19 and 20 after informal negotiations. The aim of these negotiations is to develop a text for the next round of negotiations at the 8^th INB, to be held in February 2024.

However, whether these negotiations will lead to a negotiation text reflective of the diverse set of ideas on the table proposed by various Member States remains a question, as the new text will be prepared by the Vice-Chairs leading the subgroups and the co-facilitators. If major text proposals from Member States are ignored, it will further delay negotiations in the INB.

However, a developing country delegate, very active in the negotiations, said that the drafting subgroups are intended to take forward the major text proposals placed by Member States - “the idea is these subgroups propose texts to the INB8 reflecting most of the Member State proposals and the language of these texts should emerge thorough the subgroup discussions.”

It was explained that there cannot be a completely revamped text from drafting subgroups, based on the ideas that Vice-Chairs or co-facilitators capture. This is what the INB Bureau did in the past with the support of the WHO Secretariat and this was found to be largely insufficient.

The same delegate added: “Articles 4, 5, 6, 10, 11, 12, 13, 19, and 20 are critically important articles, and they cannot be left to such an approach where only a handful of delegates decide on the future of draft negotiating text, discarding the language discussed during open meetings. This is why we see two categories of provisions in the INB report and there is a difference in the approaches in preparing texts for these two categories. The Vice Chairs and co-facilitators of subgroups are conscious of this distinct role, and it’s our (developing countries) hope that they won’t deviate much from the texts proposed by the Member States.”  

On enquiring whether there is enough time to conduct the informal discussions before 15 January 2024, the timeline fixed for submitting texts to the 8^th INB, a few delegations opined that short timelines are real concerns, and perhaps Member States may continue informal discussions beyond 15 January as well. As of today, hardly a few subgroups’ meetings have been comvened post the 7^th INB, since most delegations and organisations are on year end holidays. 15 January thus seems to be an impossible deadline.

Thus, so far, the INB has decided to move forward without adopting a formal negotiating text, and Member States are forced to negotiate through informal discussions and short timelines. There are high chances that such a process will adversely affect the quality of the outcome of INB negotiations, especially on equity. +