|
||
|
TWN
Info Service on Health Issues (Apr24/08) Geneva, 28 April (Nithin Ramakrishnan) – The Draft Resolution on the WHO Pandemic Instrument prepared by the Bureau of the Intergovernmental Negotiating Body (INB) opens the floodgates to endless negotiation processes after the adoption of the instrument with equity being more elusive. According to the draft negotiating text of the pandemic instrument, the Parties are to adopt further implementation details including modalities, terms of reference, operationalisation details etc. related to surveillance, one health and a pandemic access and benefit sharing (PABS) system. The draft resolution seeks to establish new negotiation tracks for this. The draft resolution dated 17 April will be discussed during the second week of the resumed 9th session of the INB (INB9) that will take place from 29 April to 10 May. The first week of the resumed session will discuss the Bureau’s revised draft negotiating text, which has been widely criticised for diluting legal provisions on equity to beyond bare minimum levels. The draft resolution intends to adopt the Draft WHO Pandemic Agreement (the pandemic instrument), being discussed in the INB and also seeks to clarity various aspects associated with the provisional operationalisation of the pandemic instrument as well as its entry into force. The draft resolution has seven parts: PART
1. Adoption of the Agreement The draft resolution proposes to adopt the WHO Pandemic Agreement under Article 19 of the WHO Constitution. It further states “in accordance with Article 33 of the Agreement, the Agreement shall be open for signature at the WHO headquarters in Geneva, from [28 May] to [28 June] 2024, and thereafter at the United Nations headquarters in New York, from [8 July] 2024 to [7 July] 2025; …” Interestingly, the INB has not finalised the legal provision of the WHO Constitution under which the new instrument will be adopted. Article 19 requires ratification for the entry into the force of the pandemic instrument. The draft resolution also proposes to establish a new committee E as an additional main committee of the World Health Assembly (WHA) to deal predominantly with health emergency-related matters. Currently WHA has two main committees, Committee A and Committee B. The new committee has been named “Committee E”, to preserve the colloquial reference to the WHO Cafeteria which is considered as “Committee C”, where Member State delegations often meet to find mutually acceptable solutions to difficult negotiating points. According to the preamble of the draft resolution the new committee has to look into three agenda items: (i)
the implementation of the WHO Pandemic Agreement, This proposal bears the danger of continuing with the current fragmentation of WHO’s global health emergency architecture even after the years of negotiations that started in 2021. The responsibility to prioritise the right to health and save lives of the people during health emergencies will erode between the gaps created by these legal instruments and resultant fragmentation. The draft resolution proposes to launch three intergovernmental working groups, two of which are mandated to develop international instruments on One Health Approach and Pathogen Access and Benefit Sharing, for consideration of the Seventy-eighth World Health Assembly, or to the Conference of the Parties of the Pandemic Instrument, depending on the legal nature of the proposed international instrument. Three intergovernmental working groups (IGWGs) The draft resolution proposes to have three new negotiating processes to be managed by three open-ended IGWGs. The first IGWG will develop preparatory documents for the first Conference of Parties (COP), when the pandemic instrument enters into force. This working group will help in operationalizing Article 21 of the pandemic instrument, which proposes to establish the COP. This COP IGWG will develop: (1)
Rules of procedure for the Conference of the Parties and criteria
for participation of observers at sessions of the Conference of the
Parties; The first meeting will take place before 1 December 2025. The second IGWG’s proposed mandate is to “draft and negotiate an international instrument to define the modalities, terms and conditions, and operational dimensions of the WHO Pathogen Access and Benefit-Sharing System (hereinafter PABS IGWG), in accordance with Article 12 of the Agreement, with a view to adoption by the Health Assembly under Article 21 of the WHO Constitution, or under relevant provisions of the Agreement, as may be deemed appropriate; …” Paragraph 6 of Article 12 of the draft pandemic instrument is to be operationalized through this committee. Paragraph 6 reads: “The modalities, terms and conditions, and operational dimensions of the PABS System shall be further defined in a legally binding instrument that will be operational no later than 31 May 2026”. This PABS IGWG will be convened before 1 October 2024, but will be preceded by the work of a preparatory committee composed of independent experts, with terms of reference to be established in accordance with the Regulations for Expert Advisory Panels and Committees, to prepare proposals, in accordance with Article 12 of the Agreement. The WHO Director-General is requested by the draft resolution to convene the PABS Preparatory Committee as early as possible and no later than 15 June 2024, i.e. barely within 15 days of the closure of the 77th session of the World Health Assembly (WHA77). This means the text proposals on the PABS system proposed by the Member States so far are being wiped out of the negotiating table. These proposals include text proposals from the Africa Group and the Group for Equity, accepted by more than 70 developing countries. This proposal favours developed countries who have kept on ignoring the text proposals of developing countries and sought to involve stakeholders with conflict of interests (such as genetic sequence database managers, pharmaceutical industry etc) in preparing the proposals. The WHO Secretariat has recently invited a few European stakeholders to make “expert presentations” to the INB on the PABS system. The third IGWG’s mandate is to “draft and negotiate an international instrument/s to define the modalities, terms and conditions, and operational dimensions of a One Health approach (hereinafter OH IGWG), in accordance with Articles 4 and 5 of the Agreement, with a view to adoption under relevant provisions of the WHO Constitution or the Agreement; …” Paragraph 4 of Article 5 of the draft pandemic instrument replicates the proposed language for future work on the PABS system under Article 12: “The modalities, terms and conditions and operational dimensions of a One Health approach shall be further defined in an instrument that takes into consideration the provisions of the International Health Regulations (2005) and will be operational by 31 May 2026”. However, there has been no proposal in the negotiations at the INB to develop a legally binding One Health Instrument. What is now on the table seems to be the INB Bureau’s creation at the informal insistence of developed countries after the last session of the INB in March. Although it has been proposed that the Conference of Parties will have the authority to adopt, as necessary, guidelines, recommendations and standards for pandemic prevention under Article 4, developed countries want to have separate a One Health instrument and to operationalize this regardless of the entry into force of the Pandemic Agreement. The OH IGWG will also have the same timelines as the PABS IGWG and will have a preparatory committee that will be constituted immediately after WHA77. Implications – more negotiations and fragmentation The PABS IGWG and OH IGWG are free to develop their respective instruments under any of the provisions of the Constitution of the WHO, including Article 21. This means there will be several instruments stemming out of the INB process, although the INB is only mandated to develop “a WHO Convention, Agreement or any other International Instrument on pandemic prevention, preparedness and response”. During the INB Bureau briefing, several small developing countries raised concerns about the multiple negotiating streams the resolution is proposing. Though the Bureau has promised orally to take into account these concerns, the hopes for a better way forward are very low. A developing country delegate told Third World Network, “We are already stretched by the 2 years of marathon negotiations for accelerating the development of the WHO Pandemic Agreement, yet it has not given us any solace of having a better solution to address gaps in pandemic prevention, preparedness and response. Now they want us to start new processes, just because some people want to adopt a treaty that is not yet well developed and ready for operationalization”. These new processes also means that Member States that are not Parties to the Pandemic Agreement can also be party to the PABS and/or One Health Instruments. According to the draft resolution, both these instruments should be made operational by 31 May 2026, i.e. by 79th WHA. In this regard the IGWGs are required to submit their outcomes “for consideration by the Seventy-eighth World Health Assembly, or to the Conference of the Parties, as appropriate to the legal nature of the proposed international instrument deemed appropriate”. This bears the danger of several countries not becoming Parties to the WHO pandemic instrument, who are keen to avoid obligations on diversification of production of pandemic-related products and equitable allocation of the same, as set out in Articles 9 to 13 of the instrument and the financing commitments under Articles 19 and 20. Further, Part 7 of the draft resolution provides a mandate to the WHO Director-General to implement with immediate effect the activities under the Articles of the pandemic instrument mentioned below, attributed to the WHO Secretariat, and to report to the WHA78. These proposed articles include: Article
6.5 on preparedness, readiness and resilience; The draft resolution also mandates the Director-General to report to all sessions of the Conference of the Parties and of Committee E of the World Health Assembly, following the entry into force of the Agreement. In short, if the proposed draft resolution makes its way to the WHA77, then additional negotiating streams will be opened with the high potential of even more fragmentation of the international health emergency legal regime.
|
||
