TWN Info Service on Health Issues (Apr24/09)
29 April 2024
Third World Network

WHO: Resumed pandemic instrument negotiations to start amidst concerns on negotiation process

Geneva, 29 April (K M Gopakumar) – Negotiations on the pandemic instrument will resume on 29 April amidst concerns on the negotiation process, which effectively disallows Member States to engage in effective text-based negotiations to narrow down their differences and improve the text.

The resumed session is expected to work on the new draft negotiating text prepared by the Bureau of the Intergovernmental Negotiating Body (INB) on the pandemic instrument.

According to the draft programme of work the negotiations of the draft text will take place from 29 April to 3 May.  On 6 to 10 May the negotiations are to focus on the draft resolution to adopt the pandemic instrument. The resumed session will meet daily in 3 sessions from 9.00 am to 9.00 pm.

Though the interim report of the 9^th Session of the INB held in March that decided to resume to conclude the negotiations, had indicated the negotiation to continue until 5 May the draft programme of work does not reflect this.

The communication from the INB Bureau to Member States and Non-State actors titled “Practical aspects of the resumed session” clearly states on-screen editing will be avoided. The resumed session will invite Member States to “to agree text ad referendum in the drafting group”. Thus, the INB is focusing on whether there is agreement on the proposed text rather than narrowing down the differences through negotiations among Member States.

[The on-screen process means projection of text and Member States’ proposals on a screen to facilitate Member State negotiations to reach consensus on text. This ensures transparency and full participation of negotiators. Ad referendum means agreement on a text that is subject to agreement by all negotiation delegations and finalisation of details.]

The Bureau’s proposed process was further explained as follows: “… the Bureau is of the opinion that the text as presented in the proposal for a WHO Pandemic Agreement is consensus ready. It was drafted on the basis of our many rounds of negotiations. The co-chairs will open the different articles and will ask the Member States if the article is ready for approval. If not, delegations will be invited to explain what their issue with the article is. Where possible the co-chairs will immediately propose a way forward. If the issue at hand is more fundamental, either a small informal meeting between a few Member States can be proposed, or - if more Member States want to be involved - a Working Group session can be proposed. In both instances, the groups will be led by a member of the Bureau and will be asked to bring a possible solution back to the drafting Group for consideration. We work on the understanding that there will not be more than two meetings running in parallel”.

Thus, the delegations are invited to only explain the reasons for their objections and not allowed to propose textual changes. This goes against the agreement reached during the 9^th session of the INB in March. The interim report of the INB9 clearly recognises the right of Member States, stating: “The INB agreed that, at the resumed session of its ninth meeting, 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”.

The proposed negotiation modality will leave Member States with the option of take it or leave it, and thus assert pressure on Member States to adopt the draft text, with minimal changes.

Another area of concern is whether there will be effective participation during the informal sessions. According to the Interim report, “… 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 appropriate”.

The communication on practical aspects states that the Bureau may convene small informal groups. It states: “If the issue at hand is more fundamental, either a small informal meeting between a few Member States can be proposed, or - if more Member States want to be involved - a Working Group session can be proposed. In both instances, the groups will be led by a member of the Bureau and will be asked to bring a possible solution back to the drafting Group for consideration. We work on the understanding that there will not be more than two meetings running in parallel”.

The discretion of the Bureau to hold small groups or working groups bears the danger of compromising an inclusive negotiation process reflecting the infamous “Green Room” negotiations at the World Trade Organization.

Further, there is no guarantee that only two informal meetings will take place at the same time. During the briefing for Member States the Co-Chairs refused to provide any clear timetable for informal negotiations. A few Members States asked for the schedule of informals so that they can plan for the participation of their experts. The Co-chair said that though the participation of experts is desirable they are not in a position to provide a schedule of negotiations.

This would compromise the effective participation of countries with small delegations, especially developing countries. The majority of developing countries have small delegations ranging between 1 to 4 members including technical experts. Often the technical experts are not trained to negotiate, so parallel sessions would compromise their ability to effectively participate in the negotiations.

Deviation from practice

This proposed method of negotiations is a departure from the all the past treaty making negotiations within WHO such as negotiations on the International Health Regulations 2005 (IHR 2005), the Framework Convention on Tobacco Control, the Protocol to Eliminate Illicit Trade in Tobacco Products and the Pandemic Influenza Preparedness Framework. All these instruments were developed through text-based negotiations with a Member State-driven negotiating process. The pandemic instrument negotiating process therefore has not been a Member State-driven text-based negotiation.

Since the publication of the Zero Draft in February 2023 Member States were only allowed to submit textual proposals during or after the INB meetings. After receiving the inputs, the Secretariat and the Bureau revised the negotiating text and never allowed the inclusion of the textual suggestions as part of the negotiating text.

The negotiating process of the Working Group on Amendment to the International Health Regulations (WGIHR), which is carrying out parallel negotiations on the IHR Amendment, exposes the inappropriateness of the INB process. 

The WGIHR’s amendment process started with inviting proposals form Member States Working Group on Amendment to the International Health Regulations to submit the amendment proposals and these proposals were made part of the formal text. Member States were given opportunity to discuss and then the Bureau prepared streamlined text based on the deliberations. Member States engaged in text-based negotiations based on the Bureau’s text. Member States were allowed to propose the amendments without any restorations. Objections came only from other Member States when any delegation proposed textual suggestions on new issues, which were proposed during the earlier rounds.

This new approach of the INB Bureau and the Secretariat is problematic instead of allowing the narrowing down of differences as suggested in the UN General Assembly Resolution on the Principles and Guidelines on the International Negotiations (UNGA 53/101). The following guidelines i.e. Paragraph 2 (e), (f) and (g) persist on the importance of negotiations:

·         States should endeavour to maintain a constructive atmosphere during negotiations and to refrain from any conduct which might undermine the negotiations and their progress;

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

·         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.

 

The proposed negotiation process directly undermines Member State-led negotiation. As shown below, pressurising Member States to accept the current version of the text without major changes would be amounting to thrusting an imbalanced text on Member States especially on developing countries. This would be reinforcing inequity.

Imbalanced and Inequitable

The Bureau’s text is highly imbalanced and perpetuates inequity beyond the status quo.

The text is imbalanced because the legal obligations it proposes for Member States to undertake is serving the interest of developed countries without addressing the concerns of developing countries. For instance, the proposed obligations on surveillance and one health are effectively creating an obligation to undertake effective surveillance as well as to take future obligations in this area. Article 4 of the draft text states:

“Each Party shall develop, strengthen, implement, periodically update and review comprehensive multisectoral national pandemic prevention and public health surveillance plans that are consistent with and supportive of the effective implementation of the International Health Regulations (2005) and in accordance with its capacities”.

Though the term “in accordance with its capacities” can be termed as a qualification but given that capacity building is an obligation under IHR and will be under the new pandemic instrument, the phrase is hardly a qualification. The obligation clearly requires a Party to the instrument to develop, strengthen, implement, periodically update and review pandemic prevention and public health surveillance by carrying out surveillance activities in 9 areas.

Further, Article 6 obligates Parties to build a national health system without any restrictions.

Therefore, the qualification does not allow lack of resources or access to technology as reasons for the non-implementation of the obligation. The Conference of Parties is to “develop guidelines, recommendations and standards, including in relation to pandemic prevention capacities, to support the implementation” of Article 4.

Similarly, Article 5 obligates Parties to “commit to identify and address the drivers of pandemics and the emergence and re-emergence of disease at the human-animal-environment interface through the introduction and integration of interventions into relevant pandemic prevention, preparedness and response plans”.

This obligation would be further clarified through a detailed instrument to be developed after the adoption of the pandemic Instrument. Paragraph 4 of Article 5 states: “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”.

It is important to note that there is no proposed obligation on developed countries to provide finance or technology to assist developing countries to meet their obligations under Articles 4 and 5. The demand to create a financial mechanism has been removed from the draft text.

On the other hand, there is no provision in the draft text which legally guarantees predictable and sustainable access to pandemic products or technologies to facilitate equitable access. Provisions on sustainable diversified production in Article 10 and technology transfer in Article 11 are not proposing any hard legal obligation. The proposed obligations are with multiple qualifications and not capable of changing the status quo on equitable access. This is through Article 12.3 that contains legal obligations to share both monetary and non-monetary benefits arising from access to and use of PABS material and information.

The mandatory non-monitory benefit is “in the event of a pandemic, real-time access by WHO to 20% (10% as a donation and 10% at affordable prices to WHO) of the production of safe, efficacious and effective pandemic-related health products”. Thus, access to these products is limited only to during the pandemic and not during a public health emergency of international concern.  The latter is more likely than a pandemic.

Further, the modalities, terms and conditions, and operational dimensions of the PABS System is to be negotiated further with an objective to making it operational only by May 2026.

However, a clear reading of Articles 4 .1, 6.3 and 9.1 can be interpreted as a mandate to transfer data including genetic sequence information even before the operationalisation of the PABS system. For instance, Article 4.1 states: “The Parties shall cooperate with one another, in bilateral, regional and multilateral settings, to progressively strengthen pandemic prevention and public health surveillance capacities, consistent with the International Health Regulations (2005), and taking into account national and regional circumstances”.

This creates an obligation to cooperate with various international and regional surveillance initiatives such as the International Pathogen Surveillance Network (IPSN), Epidemic Intelligence from Open Sources, Coronavirus Network, GORAN etc. Cooperation with these initiatives require sharing of pathogen or its sequence materials. The vision of IPSN is “A world where every country has equitable access to sustained capacity for genomic sequencing and analytics as part of its public health surveillance system” but nothing on accountability and  benefit sharing related to that access.

Similarly, Article 9.1 stated: “The Parties shall cooperate to build, strengthen and sustain geographically diverse capacities and institutions for research and development, particularly in developing countries, based on a shared agenda, and shall promote research collaboration and access to research through open science approaches for the rapid sharing of information and results, especially during pandemics”.

This paragraph creates an obligation to share information, which will include sequence information of genetic resources. Thus, the draft text contains provisions to facilitate access to pathogens or their sequence information outside the PABS system. If such provisions are accepted there will not be any compulsion for the developed countries to conclude a PABS system as envisaged under Article 12.6.

Thus, one of the pressing issues for developing countries to address equitable access to pandemic related products has not been addressed.

Soft Coercion

The reason cited for the flawed negotiating process is the timeline Member States themselves had set for the adoption of the pandemic instrument. However, the World Health Assembly Special Session’s decision, which created the INB to negotiate the pandemic instrument does not prescribe any timeline for the conclusion of the negotiations. Paragraph  5 of the decision of the special session states: “that the INB shall submit its outcome for consideration by the Seventy-seventh World Health Assembly, with a progress report to the Seventy-sixth World Health Assembly”.

Therefore, there is no strict timeline set by the World Health Assembly to conclude the negotiation.

Another reason often cited to adopt the pandemic instrument at the 77^th World Health Assembly is the upcoming US presential election and EU elections. These elections would result in the victory of the conservative forces including the victory of Ronald Trump. This would result in no political will to conclude the negotiations.

Therefore, the adoption process of the instrument is very crucial. However, this line of thinking ignores the two important issues. First, what is there in the draft text which will charge the status quo to address prevailing inequity in order to undertake obligations on surveillance and one health without even any guarantee on finance and technology to fulfil such obligations.

Secondly, even after its adoption the instrument will require ratification by each country and the conservative forces in power in the EU and the US could still withhold their ratification.