TWN Info Service on Health Issues (Apr24/01)
2 April 2024
Third World Network

WHO: Member States to hold another pandemic instrument negotiations round amidst wide divergence

Geneva, 2 April (TWN) – WHO Member States have decided to hold another round of negotiations on the pandemic instrument with an aim to finalise it before the 77^th World Health Assembly (WHA) to be held 27 May – 2 June in Geneva.

The lack of consensus during the 9th meeting of the Intergovernmental Negotiating Body (INB9) on the pandemic instrument led to the decision to hold the resumed session of INB9 based on a draft text prepared by the Bureau with the assistance of the WHO Secretariat.

The interim report of the INB9 (report) adopted on 28th March states thus: “… as a way forward, the INB requested the Bureau, with the support of the Secretariat, to develop a proposed draft WHO Pandemic Agreement for negotiation at the resumed session of the INB9”.

INB9 was held from 18 to 28 March at the WHO Headquarters in Geneva in hybrid mode. The resumed INB9 will take place from 29 April to 10 May.

Actual negotiations on the pandemic instrument are to take place till 5 May. The rest of the working days will be devoted to the adoption of the report and the resolution that needs to be submitted to the 77^th WHA.

The INB9 report states: “An advanced unedited English version of the text will be distributed to Member States and relevant stakeholders no later than 18 April 2024 and translated versions made available as soon as possible thereafter. The resumed session of the ninth meeting of INB will be held from 29 April to 10 May 2024. The INB will work to finalise the substantive negotiations on the text of the proposed WHO Pandemic Agreement by 5th May 2024, and will plan to take stock of progress on 3 May 2024 in order to determine the way forward for the World Health Assembly”.

Thus, the first six days of resumed INB9 will focus on the finalisation of a new draft prepared by the INB Bureau and WHO Secretariat.

Concerns on the negotiation process

The report now does not contain any reference to on-screen drafting. As reported earlier, the Bureau proposed that the negotiations will take place without any “on-screen drafting”, which compromises text-based negotiations.  Third World Network learned that the deletion of the Bureau’s proposal is due to opposition from many Member States during the discussion on modalities on 28 March.

The report recognises the right of Member States to insert textual suggestions. It states: “The INB agreed that the resumed ninth meeting of the INB would work to find common ground and consensus, respecting the right of Member States to propose modifications to the text for the consideration of the INB. The Drafting Group would focus on agreeing text ad referendum”.

However, it is not clear that there would be proper text-based negotiations during the resumed session because the focus of the drafting group is on agreeing to text ad referendum. Further, the report suggests that the work programme of the resumed session would focus on informal meetings. According to the report, “The Bureau will provide a programme of work for the resumed ninth meeting that enables sufficient time for structured informal meetings and /or working groups, as needed to progress the work, with no more than two meetings at the same time. Bureau members may also conduct informal sessions as may be appropriate”.

[Ad referendum agreement means accepting text subject to agreement by others and finalisation of details.]

Thus, the attempt is to bring text that emerges from the informal process to the drafting group for the approval of the Member States. This approach puts Member States with small delegations in a disadvantaged position, compromising their right to participation. The entire instrument from the preamble to the last article is to be negotiated within 6 days, which currently enjoys no consensus. The shorter timeline (6 days) for negotiations on the pandemic instrument and the proposed method of work would put Member States in a binary situation of either accepting or rejecting the text without much scope for negotiations and reaching a true consensus.

This binary approach and pressure to conclude a legal instrument without effective textual negotiations and the shorter timeline for negotiations goes against the following UN Principles and Guidelines for International Negotiations (UNGA 53/101). The relevant principles are:

(b) States should take due account of the importance of engaging, in an appropriate manner, in international negotiations the States whose vital interests are directly affected by the matters in question;

(f) States should facilitate the pursuit or conclusion of negotiations by remaining focused throughout on the main objectives of the negotiations;

(g) States should use their best endeavours to continue to work towards a mutually acceptable and just solution in the event of an impasse in negotiations.

Though the negotiation process was initiated 24 months ago there were no effective negotiations to date. The Bureau and the WHO Secretariat effectively prevented text-based negotiations led by Member States, citing the deadline of concluding the negotiations before the 77^th WHA.  For such a significant legally instrument to be rushed through in about in six days at the resumed INB9 is unprecedented in United Nations intergovernmental negotiations.

Wide Divergence

There was not much negotiation during INB9. Most of the time i.e. around 6 and half days were spent on insertions of textual proposals from Member States. There was no time for the textual negotiations. The insertions of various proposals from Member States clearly show the wide divergence still existing among Member States. The 28-page revised draft negotiating  text prepared by the Bureau with the assistance of the WHO Secretariat swelled to 110 pages. This clearly shows the diverse views on various aspects of the pandemic instrument.

The North-South divide is very clear from the textual proposals. While developed countries demand legal commitments from developing countries on surveillance information sharing, developing countries are demanding legal obligations to address the prevailing inequity in pandemic prevention, preparedness and response. In this regard developing countries ask the developed countries to undertake legal obligations to realise equitable access to pandemic-related products through geographically diversified production, technology transfer and benefit sharing of R&D outcomes from pathogens and sequence data.

An analysis by Knowledge Ecology International shows that Article 11 which deals with technology transfer contains 579 country positions: 112 to be pro-pharma and 183 to support pro-access. The European Union has proposed nearly 48 amendments, and the United States has 43 proposals.

The Bureau is to prepare a new draft negotiating text based on the proposals submitted by Member States during INB9, with the objective of finalising or reaching substantive consensus on the new draft negotiating text within 6 days. Thus, the task of the Bureau and the WHO Secretariat is to prepare text balancing the views of both developed and developing countries.

The initial signal from the Bureau was to go soft on equity-related provisions. The Bureau’s proposal on 27 and 28 March of the draft report was that the new draft of the negotiating text would contribute to the operationalisation of equity. The draft report stated: “In furtherance of the mandate of the INB, the text should be focused, and contribute to operationalizing equity and address the critical aspects of pandemic prevention, preparedness, and response”. In the adopted version of the report the words “contribute to” were dropped.

It now reads: “In furtherance of the mandate of the INB, the text should be focused, building on potential areas of consensus already identified, operationalizing equity and addressing the critical aspects of pandemic prevention, preparedness and response.”

However, one must wait and see how the Bureau and the Secretariat are to fulfil the task of operationalising equity, which requires disruption of the status quo. The absence of such concrete proposals would force developing countries to propose changes in the draft negotiating text and developed countries are also expected to table proposals to maintain the status quo. This may lead to a situation of exerting pressure on developing countries to accept legal obligations on surveillance and one health and continue the negotiations on equity-related provisions such as access (Articles 9 to 11 and 13) pandemic access and benefit sharing system (PABS) (Article 12) after the adoption of the instrument at 77^th WHA.

The status quo approach on equity is so far rejected by developing countries. For instance, the Africa Group in its opening statement during INB9 emphasised: “Every effort that would get us closer to the finish line is to be gauged with the equity lens, ensuring that we deliver on the mandate and collective responsibility of operationalizing equity and the promise of a safer world for all”.

Similarly, the South-east Asia Region stated that “to operationalize equity, we need to clearly delineate obligations vis-a-vis responsibilities, on various parties, including mentioning developed countries vis-à-vis developing countries which is missing in the current Negotiating Text”.

Thus, the success of the resumed session of INB9 to reach a consensus leading to the adoption of the pandemic instrument requires a clear shift of the position of developed countries on equity-related provisions.