Pressure Builds On Countries To Embrace Weak Pandemic Agreement, Operationalizing Equity at Risk with a Framework Approach
Newsletter Edition #81 [Treaty Talks]
Hi,
Journalism does not allow for wishful thinking.
Things are not looking good for the Pandemic Treaty discussions in Geneva. Diplomats are telling us that the process is at a real risk of unraveling.
But as ever, the curious ways of Geneva, and the invisible hand that shapes global health, could yet forge a face-saving exercise, and magically pull out a much-compromised agreement in six weeks from now.
In today’s edition we bring you a quick update on the final draft of the Pandemic Agreement due for consideration later this month. We also discuss a resolution text that is slated to be taken up at the World Health Assembly next month.
Earlier this week, we brought you a detailed analysis that preceded the final draft, not much different from what came after. (See Next Draft of The Pandemic Agreement Will Likely Have No Fund and No Binding Obligations On Pathogen Access & Benefits Sharing, Defers Modalities to Conference of Parties)
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I. Analysis: Draft Pandemic Agreement
Pressure Builds On Countries To Embrace Weak Pandemic Agreement, Operationalizing Equity at Risk with a Framework Approach
Earlier this week the Bureau of the Intergovernmental Negotiating Body released the latest draft of the Pandemic Agreement due for consideration at a resumed meeting beginning April 29th that will see marathon negotiations with an aim to conclude this process by May 10th.
The text is not markedly different from a previous version on which we reported on April 16th but there are certain changes – these we discuss below. The latest version has not been officially published by the INB yet.
What is also on the table is a draft resolution text that lays out the link between the main agreement and processes that would follow the adoption of the text at the Assembly including setting up of Intergovernmental Working Groups for certain provisions, immediate tasks for the WHO Director-General to follow through.
Preliminary assessment by countries seem to reveal three possibilities on the way forward according to those familiar with the discussions: one is to accept the text and conclude negotiations; second to buy more time in order to strive for a more meaningful agreement; and third to walk away from the text and effectively declare a failure of this process.
The political pressure to accept the latest draft, a much watered-down version, is very high. Not only from Geneva-based actors, but also from capitals. But countries will have to make a political choice on the extent to which they will support the draft in its current form, diplomatic sources tell us.
At the moment, the draft mostly adopts a framework approach where countries broadly agree on principles, but defers practical actions to implement these principles to a later stage. The lack of time to conclude on the details, leaves little choice but to go down this road – unless countries decide otherwise in the coming days. There has been little appetite for a framework approach from many countries both developing and developed ones, and yet, it now has precipitated into a reality.
Such an outcome is no surprise to anyone following these discussions for the last two years. Whether these circumstances can be attributed to countries, the INB Bureau, or even the WHO, will continue to be discussed in the years to come. A range of factors have contributed to poor planning and design, and the conduct of these discussions, observers have said. To be sure, the sheer complexity of this task where 194 countries agree to a common set of binding rules in a deeply fractured world, is lost on no one, and has been fraught with challenges right from the beginning.
In this story, we look at new additions and omissions, over the draft version we reported on. And we also review the resolution text below. We spoke with numerous diplomats for this story.
What’s new:
Language on gender in preambular paragraphs. Do not rule out a fight on this, because gender issues have become political at WHO.
“Recalling that the Convention on the Elimination of All Forms of Discrimination against Women, adopted by the United Nations General Assembly on 18 December 1979, provides that States Parties to that Convention shall take appropriate measures to eliminate discrimination against women in the field of health care, and that the Sustainable Development Goals aim to achieve gender equality and empower all women and girls.”
Changes in definitions:
Diplomats say the following definition of terms do not capture the legally binding nature of the PABS system:
“PABS Material and Information” means the biological material from a pathogen with pandemic potential, as well as sequence information relevant to the development of pandemic[1]related health products;
“pandemic-related health products” means safe, effective, quality and affordable products that are needed for pandemic prevention, preparedness and response, which may include, without limitation, diagnostics, therapeutics, vaccines and personal protective equipment;”
The latest set of definitions has no mention of Digital Sequence Information, a key demand from the Equity Group in relation to the provision on Pathogen Access and Benefit Sharing.
The tech transfer provision originally Article 11, has been restored, but articulation is problematic, developing country negotiators say. (An earlier version had merged this with the provision on sustainable production.)
Under Art. 11 though, there is no reference to “waiver” or temporary suspension to intellectual property rights – language that had survived the axe up until now. Developed countries have had their say. Little chance developing countries will fight back to out this in. (In a previous version this read thus: “3. During pandemics consider supporting, within the framework of relevant institutions, time-bound suspensions of relevant intellectual property rights to accelerate or scale up the manufacturing of pandemic-related health products.”) This is not surprising, yet significant in the context of the TRIPS Waiver discussions at WTO that caused rancour among its members.
Ratification: Unclear formulation that could risk in the agreement being binding only for early adopters and not the rest, sources point out. Also, there is uncertainty on proposed future protocols for Pathogen Access Benefit Sharing, and One Health matters. Questions are being raised on what these timelines for subsequent decisions from the Conference of Parties mean for “early treaty adopters”.
“There are inconsistencies in the text of the main agreement with the plans for future protocols”, one developing country legal expert involved in these discussions told us. The first meeting of the Conference of Parties is not likely to address specific actions from the IWGs, a developing country legal expert said.
(See: Art 21.3 The first session of the Conference of the Parties shall be convened by the World Health Organization not later than one year after the entry into force of the WHO Pandemic Agreement. The Conference of the Parties will determine the venue and timing of subsequent regular sessions at its first session.)
There are also big concerns on questions on governance and compliance matters. Stakeholders have pointed out that there is “no provision for monitoring compliance or details on state reporting requirements other than “periodically.” “This leaves Member States with no accountability for any of their treaty commitments (weak or strong),” Nina Schwalbe, from Spark Street Advisors who has been advocating for greater accountability, said this week.
In a statement, Barbara Stocking, Chair, Panel for a Global Public Health Convention said:
“We believe the CoP should have its own independent Secretariat, separate from WHO, even if it is hosted by WHO. A strong CoP is important to ensure pandemics are not only seen as a health matter, but as important to the whole of Society and the whole of Government.
Going forward, we need to focus on two issues: finance and compliance. The Mechanism proposed for financing in Article 20 will also require action after the WHA to achieve it. The financing Mechanism must be governed by the CoP but should also be linked to the amended IHR so that all PPPR financing needs can be addressed in a coordinated manner. We believe it could be based on the model of the Global Environmental Facility, which not just co-ordinates, but engages with, and seeks financing from, existing and new sources. How the Pandemic Fund should mesh with these sources has yet to be defined. The CoP structure would provide more equitable governance than now.
Our main concern is compliance. A major issue in the Covid 19 Pandemic was that countries did not comply with IHR. To be effective, Treaties should have compliance specified. The Agreement and IHR need to be linked together on this issue so that all matters can be covered. Proposals have previously been made for a Compliance and Implementation Committee and this should now be included in the text. Compliance should include those matters for which national and regional Parties have committed themselves in pandemic surveillance and response, and commitments concerning equity. There is also the need, as stated elsewhere in the text, for CoP to have information and to assess the overall implementation of the Agreement.”
Related Resolution for Adoption at World Health Assembly
Alongside the negotiation of the main text, the INB Bureau has also put together a resolution that will be taken up at the Assembly. There are several elements to this, that will no doubt be picked apart and negotiated by countries in the coming days. One, it makes clear that the adoption of the agreement will be under Article 19 of the WHO Constitution; second it sets in place Intergovernmental Working Groups ostensibly to assuage countries that follow on work is bound by clear deadlines; and finally, it suggests a third main Committee to circumscribe work on emergencies. Expect push back on all these accounts as countries and stakeholders approach these from different entry points and interests. The draft resolution also binds the DG of the WHO, to follow through on key provisions from supply chain, tech transfer among other issues.
We present excerpts of this draft resolution below:
PART 1. Adoption of the Agreement
6. ADOPTS, under Article 19 of the WHO Constitution, the WHO Pandemic Agreement (hereinafter the Agreement) attached to this resolution;
PART 2: Establishment of the process to take forward Article 21 of the Agreement (COP IGWG).
6. DECIDES to establish, in accordance with Rule 41 of the Rules of Procedure of the World Health Assembly, an open-ended Intergovernmental Working Group to prepare the first session of the Conference of the Parties (hereinafter COP IGWG), open to all States and regional economic integration organizations referred to in Article 33 of the Agreement, in order to consider and prepare proposals on those issues identified in the Agreement for consideration and adoption, as appropriate, by the first session of the Conference of the Parties; such issues should include:
(1) rules of procedure for the Conference of the Parties and criteria for participation of observers at sessions of the Conference of the Parties (Article 21.5);
(2) financial rules for the Conference of the Parties and its subsidiary bodies, and financial provisions governing the functioning of the secretariat (Article 21.6);
(3) a draft budget for the first financial period (Article 21.6);
(4) preparations for the convening of the first session of the Conference of the Parties, following entry into force of the Agreement;
7. RESOLVES that the first meeting of the COP IGWG shall be held no later than 1 December 2025, in order to elect two co-chairs, reflecting a balance of developed and developing countries, and to define and agree on its working methods and timelines, consistent with this resolution and based on the principles of inclusiveness, transparency, efficiency, Member State leadership and consensus;
PART 3: Establishment of the process to take forward Article 12 of the Agreement (Expert preparatory committee and PABS IGWG)
8. DECIDES:
(1) to establish, in accordance with Rule 41 of the Rules of Procedure of the World Health Assembly, an open-ended Intergovernmental Working Group in order 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;
(2) that the PABS IGWG shall be open to all States and regional economic integration organizations referred to in Article 33 of the Agreement; (3) to request the Director-General to convene, as early as possible and no later than 15 June 2024, a PABS preparatory committee, composed of independent experts, on 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, for the consideration of the PABS IGWG, and to further request that the PABS preparatory committee submit its report to the Director-General no later than 15 September 2024, with the Director-General communicating it without delay to the PABS IGWG;
(4) that the first meeting of the PABS IGWG shall follow the conclusion of the work of the PABS preparatory committee described in paragraph 8(3), and in any event shall be held no later than 1 October 2024, in order to elect two co-chairs, reflecting a balance of developed and developing countries, and to define and agree on its working methods and timelines, consistent with this resolution and based on the principles of inclusiveness, transparency, efficiency, Member State leadership and consensus;
(5) in order to provide that WHO Pathogen Access and Benefit-Sharing System is operational no later than 31 May 2026, that the PABS IGWG shall submit its outcome 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 by the PABS IGWG;
PART 4: Establishment of the process to take forward Articles 4 and 5 of the Agreement (OH IGWG)
9. DECIDES:
(1) to establish, in accordance with Rule 41 of the Rules of Procedure of the World Health Assembly, an open-ended Intergovernmental Working Group in order 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;
(2) that the OH IGWG shall be open to all States and regional economic integration organizations referred to in Article 33 of the Agreement;
(3) to request the Director-General to convene, as early as possible and no later than 15 June 2024, a One Health preparatory committee, composed of independent experts, on terms of reference to be established in accordance with the Regulations for Expert Advisory Panels and Committees, to prepare proposals, in accordance with Articles 4 and 5 of the Agreement, for the consideration of the OH IGWG, and to further request that the One Health preparatory committee submit its report to the Director-General no later than 15 September 2024, with the Director-General communicating it without delay to the OH IGWG;
(4) that the first meeting of the OH IGWG shall follow the conclusion of the work of the One Health preparatory committee described in paragraph 9(3), and in any event shall be held no later than 1 October 2024, in order to elect two co-chairs, reflecting a balance of developed and developing countries, and to define and agree on its working methods and timelines, consistent with this resolution and based on the principles of inclusiveness, transparency, efficiency, Member State leadership and consensus;
(5) in order to provide that the instrument/s is/are operational no later than 31 May 2026, that the OH IGWG shall submit its outcome 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 by the OH IGWG;
PART 5: Establishment of Committee E as an additional main committee of the Health Assembly
10. DECIDES, in accordance with Rule 33 of the Rules of Procedure of the Health Assembly, to establish Committee E as an additional main committee of the Health Assembly to deal predominantly with health emergency-related matters, and to amend Rule 30 and 33 of the Rules of Procedure of the Health Assembly as set out in Annex 2 to this resolution, with effect from the closure of the Seventy-seventh World Health Assembly;
11. INVITES the Executive Board, when it reviews the work of the Standing Committee on Health Emergency Prevention, Preparedness and Response in accordance with Executive Board decision EB150(6) (2022), to take into consideration the establishment of Committee E and the need for coherence and efficiency in the work of WHO’s Governing Bodies;
13. REQUESTS the Director-General, with regard to Article 6.5 (Preparedness, readiness and Resilience), Article 7.3 (Health and care workforce), Article 10.6 (Sustainable and geographically diversified production, and technology transfer and know-how), Article 13.1 (Supply chain and logistics), Article 13.6 (vaccine and therapeutic related compensation and liability during pandemics), Article 14 (Regulatory strengthening), and Article 20.3 (Coordinating Financial Mechanism) of the Agreement, to implement with immediate effect the activities under those aforementioned Articles attributed to the WHO Secretariat, and report thereon to the Seventy-eight World Health Assembly, as well as, following the entry into force of the Agreement, all sessions of the Conference of the Parties and of Committee E of the World Health Assembly;
14. FURTHER REQUESTS the Director-General:
(1) to provide secretariat functions under the Agreement;
(2) to allocate the necessary resources for the above-established intergovernmental processes to carry out their mandates;
(3) to take appropriate steps to provide support to Member States, in particular developing countries, in preparation for entry into force of the Agreement;
(4) to convene, as frequently as necessary, meetings of the Open-ended Intergovernmental
Working Groups established herein;
(5) to keep the Health Assembly informed of progress made toward entry into force of the Agreement and of preparations under way for the first session of the Conference of the Parties;
(6) to report to the Seventy-ninth World Health Assembly on the implementation of this resolution.
TAILPIECE
No matter what countries are saying publicly, the writing on the wall is clear. We are going to be witnessing the toughest days yet in these discussions.
A developing country negotiator told us this week: “Developed countries are interested in the principles but not interested at all in operationalizing the principles. Hence there is wider apprehension among the developing countries that human rights will be politicized while securing right to health. We have clearly heard from the developed countries that they don’t want to see even “solidarity” in the pandemic treaty because it is not agreed in the Human Rights Council”
It was pointed out that the second special session of the Health Assembly mandated the INB to craft practical actions which is not framework in nature. It is very clear that there is no temptation among the developed countries for practical action, the person said.
“The negotiations are in quagmire. We don’t see any hope at all. Only the civil society now can save the treaty with a clear understanding on the way forward. Governments across the globe are driven and influenced by externalities, only the civil societies, academia and think tanks are the last hope to save the treaty. They need to raise a robust voice to put the governments on track to take this opportunity to craft a powerful treaty,” the negotiator said.
Later today, the Bureau will be briefing countries and non-state actors on plan and process for the upcoming negotiations session.
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