Chaotic Process & Politics Affect Pandemic Agreement Negotiations at WHO As Countries Struggle to Reach Consensus, Could Risk IHR Process
Newsletter Edition #96 [Treaty Talks]
Hi,
With about 48 hours to go for the 77th World Health Assembly, the two Big Ticket items on the table, are far from ready for adoption by WHO member states.
Read our edition today on the state of play. We also present statements made by countries to give you a sense of the mood.
Exceptionally, we also present The Files View an editorial on these matters. Negotiators and many of those involved in these discussions have been operating at sub-optimal levels of well-being. Countries need more time to conclude these negotiations in a meaningful manner. Delegations should not be rushed not only for themselves, but also for the sake of the millions of people, they represent. An agreement without coherence serves no one.
We will continue to watch these processes as we have over the last three years. But I must confess, I am getting a bit tired of the disguised reprimands coming our way for doing our job. Guess we are doing something right!
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Our gratitude to our subscribers who help us stay in the game!
See you around at the World Health Assembly if you are in Geneva the coming week!
I will be moderating a brief discussion on the negotiations on Sunday, May 26th at the Geneva Graduate Institute.
I am also happy to present the first ever Geneva Health Files Dialogues on May 29th where we deconstruct the process and politics of these discussions to draw lessons for the future.
Best,
Priti
Feel free to write to us: patnaik.reporting@gmail.com. Follow us on X: @filesgeneva
I. STORY OF THE WEEK
Chaotic Process & Politics Affect Pandemic Agreement Negotiations at WHO As Countries Struggle to Reach Consensus, Could Risk IHR Process
By Priti Patnaik & Nishant Sirohi
Chaos, uncertainty and gloom, hung over the discussions towards a Pandemic Agreement as the final evening of the meeting of the Intergovernmental Negotiating Body drew to a close on May 24th.
Countries are heading into the 77th World Health Assembly without adequate clarity on the next steps as the mandates of both processes - the INB to establish a Pandemic Agreement, and the Working Group to amend the International Health Regulations (WGIHR) come to a conclusion this month.
There are expectations that the amendments to the IHR might still get adopted before the close of the Assembly on June 1, if informal consultations to close existing gaps succeed in forging a consensus.
Walking out of the INB meeting last night, few diplomats had a sense of how the process and next steps would look like in the coming days. “We are not sure how countries will continue the process next week. It is very open-ended.”
There was no formal press briefing, or an open discussion on the report that will be considered by the Assembly next week. Sources indicated that Bureau members were of the view that the INB had no mandate to discuss the next steps, but to only submit an outcome to the Assembly.
Without a defined path on the next steps, delegations appeared to have been left adrift. To be sure, any accompanying resolution would need to be submitted to the Assembly by the end of the first day (May 27th) as per procedures, officials explained to us.
It appears, many member states seemed to have communicated a clear message that they were not keen on continuing negotiations along the sidelines of the Assembly next week. However, as Global Health Geneva prepares for its big week, this was not completely ruled out.
“We do not know for sure, if there will be no negotiations next week. We stand ready,” one developing country negotiator told us. And yet, a number of delegations were already drawn into preparations for the World Health Assembly even before the INB concluded.
Some options that are being considered include an extension of the process by taking additional time, getting a new bureau, or even suspending the Assembly on June 1 in order to continue with the negotiations, diplomatic sources said.
A WHO statement issued last night said, “The INB Bureau, which has been guiding the process, will present a report outlining the two-plus years of work of the process, and the outcome of that work, which is the draft text that has been negotiated to date. Options for next steps to conclude the agreement process will also be put to the WHA for consideration.”
INB Bureau Co-Chair Roland Driece, of the Netherlands, said “Clearly there is agreement among governments that the world must forge a new approach to combatting pandemics. The next steps in this essential process will now be guided by the World Health Assembly.”
This story recounts the events of the past week, and what this means for the week ahead.
INB-IHR Bound Together?
Apart from the difficulties in reaching consensus on a Pandemic Agreement, a potential disappointment for many, would be if the amendments to the IHR are not adopted at the Assembly. There are several reasons for this, including the fact that countries are far closer to consensus in the IHR than in the INB. In addition, it has been a much more streamlined, predictable and fairer process – a perception that has been widely acknowledged by member states across the board.
But there are hurdles to be crossed. First, some believe that there are key linkages between both the processes – suggesting that both need to be adopted together. Not all agree.
“We do think that the IHR are independent to the INB process and these amendments can be adopted irrespective of the outcome on the Pandemic Agreement,” a developed country negotiator told us.
Tech Transfer
Second, apart from minor issues, language around tech transfer (in Article 13) and financing (in Article 44) in the amendment proposals to the IHR have divided countries. Through this past week, countries were hoping to have a breakthrough on the tech transfer language so as to move on this contested issue in both tracks. It is not clear whether this is something that can be resolved ahead of a potential adoption on June 1. For some countries, including a recognition of technology transfer in the IHR is significant, for others it is less critical. But clearly, having commitments on technology transfer for Public Health Emergencies of International Concern that the IHR govern will be important.
“Whatever countries decide, there has to be coherence on tech transfer language across both these instruments. We cannot have language that would leave the possibility of applying pressure on the DG against the declaration of a PHEIC, for example, if certain kinds of obligations on tech transfer kick in,” a legal expert said alluding to the continuing discussions on voluntary, and mutually agreed terms in the scope of the topic.
Those countries who are protective of their industry believe that a WHO agreement cannot govern technology transfer. “WHO is an international organization. It cannot decide what countries should do,” a diplomat from a large developing country told us.
Financing
The fight for dedicated financing continues in both tracks, but appears to be more critical in the context of the IHR, sources familiar with the discussions said. At this point it is unclear whether developed countries would yield to this demand from developing countries, in particular the Africa Group. The question on financing appears to be a “red line” for some developing countries.
The pressure to reach consensus on the IHR is felt by many countries. For some, holding back on the IHR to make progress on the INB is a leverage that continues to be exercised in these final days.
“If there is a soft landing on the INB, we could still expect to adopt the IHR” a developed country negotiator told us.
A press statement by WHO said, that the WGIHR Bureau “will also be presenting its outcome to the WHA for consideration, including some provisions for which agreement in principle was reached and others that the WGIHR Bureau updated its proposed text for consideration by Member States.”
THE DIFFICULT DISCUSSIONS IN THE INB
Heading into this past week, few would have believed that the vast divergences between countries on key issues would be resolved. As the week wore on, countries were on a roller coaster ride, with the hope of landing on an agreement on the back of a deal on Pathogen Access and Benefits Sharing, Article 12 in the proposed agreement. That did not happen.
Despite a last-ditch effort from the Bureau on getting countries together, the discussions were difficult and seemed to have undone previous progress on the provision, sources said.
From disagreements on the legal status of a PABS mechanism, to agreeing on percentages of real-time production, from licensing arrangements as part of benefit-obligations, to the administration of a PABS system by WHO, from the voluntary nature of contracts in the PABS system, to the utilization of potential revenues from such a mechanism, countries disagreed on many issues this week on this provision alone. The divergences existed not only, notably, between the Africa Group and the EU, but other developing countries were also unhappy with the nature of these discussions. The final straw, according to sources, was efforts by some developed countries walking back from previously agreed language, at which point, some developing countries allegedly threatened to undo the progress on surveillance related provisions – a priority for the developed world.
Forum-Shopping And The Goalposts Of Convenience
One of the key areas of debate has been WHO as a forum to discuss all the areas that the Pandemic Agreement seeks to touch.
Developed countries and even some developing countries, have held the view that on intellectual property matters the World Trade Organization and the World Intellectual Property Organization are the relevant forums to govern IP related issues. This has been contested by developing countries and other stakeholders, who believe that WHO should and must govern the interface between trade and health matters.
However, when it comes to aspects related to Pathogen Access and Benefits Sharing, whether it is the matter of definitions of information shared, or the status of a Specialized International Instrument, among others, developed countries and other stakeholders are keen on using the WHO’s Pandemic Agreement as a conduit to resolve matters that are currently pending and debated at forums such as the Convention on Biological Diversity. The Nagoya Protocol under the CBD, governs these areas now being discussed at WHO in the context of the much-vaunted PABS mechanism.
(See more this from TWN: EU's hypocrisy and double standards create trouble in PABS negotiations)
A Glass Half Full?
Few would have visualised an unglamorous conclusion to such a high-profile process – but realism finally seemed to have caught on, as tired negotiators headed home to prepare for another intense week of the World Health Assembly.
There is undoubtedly a lot of progress that countries have made over the last three years as these discussions evolved from ideas on pandemic prevention preparedness and response, to text, to provisions and formulation of legal language.
Some of the assumptions made at beginning of the process made these talks more difficult than they needed to be, including that developing countries would give in eventually, or that wielding political pressure would push countries towards an agreement.
“It is a different world now. Today we have information and tools at our disposal. We are more self-reliant than in the past. If rich countries think they can continue with their tactics, it is not going to work,” a developing country negotiator told us last evening.
The polarisation between countries is real, and it got worse not only in the aftermath of the inequities witnessed in the international response to COVID-19, but also in wake of continuing geopolitical divides exacerbated by the festering conflict in the Middle East, among others. These negotiations that have often been marked by deep distrust and exasperation between countries, risks affecting WHO as an institution, some believe.
“The atmosphere has worsened because these talks have been contentious for so long. This could have deep implications on how countries work at WHO, on global health in general. We need to take some time off to review and come back,” a developed country negotiator told us last week.
Let others in?
Finally, what we heard over and over again over the last many months is the differences in approach to law-making between experts. There are public health experts and lawyers in the room who see issues differently even within delegations, a senior diplomatic official explained to us.
Observers also believe that these talks have been framed in economic and trade terms. “This is little about global health, but more about markets. This is not how health negotiations at WHO were meant to take place,” a senior activist who has been watching WHO for many years told us.
There is also realization to let more political scientists and other experts into these discussions. “Doctors and technical experts often miss out on the politics. They are unable to read the undercurrents. They do not always know what they are dealing with,” one negotiator said.
What to watch out for?
There are key implications based on what comes next. The texts of the resolutions from both processes will be submitted in due course over the next two days. Whether the negotiated text so far will be “attached” to the reports and outcomes that will be submitted to the Assembly next week, will be important for an accountability perspective.
And finally, whether a pre-cooked plan will be devised and presented to ministers next week in order to continue these negotiations in the future, will be important to look out for.
“We need a clear strategy on how to proceed next. A time table and how it will be structured,” a developing country ambassador said last evening.
II. THE FILES VIEW [EDITORIAL]
Negotiators Need More Time, Don't Rush Them
Negotiators, officials, the WHO secretariat, and stakeholders including activists and others, are the limits of physical endurance for nearly four straight weeks now, in a bid to conclude these two track negotiations on pandemic prevention, preparedness, and response.
Cramming difficult discussions into wee hours of the mornings, consulting, debating and sticking to their positions have been an exhausting process for those involved, to say the least.
Given the temperature in the room, the continuing distrust and the lack of a breakthrough towards consensus, countries must pause and reflect in order to meaningfully conclude these negotiations. There is great hesitation around “who blinks first”, in order to articulate a new path ahead. As a result, the entire exercise has been shaped by influences and uncertainties.
Bending time to accommodate an unrealistic political process has so far not yielded an agreement.
That also points to the seriousness of the issues at hand.
Take technology transfer for example, one of the many contentious and unresolved issues in these discussions. It is illustrative of the decades-long discussions on this including at the World Trade Organization. The continuing fight on the terms of technology transfer is emblematic of how much some countries want to change status quo, and how much resistance there is to move way from voluntary measures.
Some fights are more difficult than others, and perhaps the path towards a Pandemic Agreement, demonstrates that this is a fight for greater equity even in decision-making. This is not a failure of multilateralism. This stasis at WHO shows, multilateralism is alive and kicking.
A change is underway. The rule-takers want to be rule-makers too. This deserves more time.
III. STATEMENTS
We present excerpts of some statements made at the close of the meeting
European Union
“…I mean, this clearly, is a difficult moment for all of us, but it's not something that is uncommon in the multilateral system, and from the side of the European Union and our member states, of course, we want to stress that we remain entirely committed to bring these two processes that we have followed for so long, to fruition and the when it comes to the of course, to the amendments to the International Health Regulations, we very much still hope that we can bring it to fruition next week, at the WHA. Of course, at this juncture, we want to wholeheartedly thank you, both Co-Chairs and all the Bureau members for your dedication. We also wish to recognise the extraordinary work and support that the Secretariat and the Director General extended to us. And finally, we wish to thank all the good colleagues and friends for the collegiality in the process. We will continue on this path with all of you, and we trust we will be successful in the near future.”
Bangladesh
“….We had ambition to conclude the negotiation within the time, but today, we are not happy as we could not deliver. But still, we do have the ambition to deliver on that, and Bangladesh, being a small delegation, will remain constructive and positive towards that. While proceeding for that, we hope we'll be able to see both processes are ending with successful result that will serve the humanity.”
Ethiopia (On behalf of Africa Group + Egypt)
“…I thank all member states who made us come thus far. We would like to acknowledge that. We consider the work as an ongoing progress and the positive progress we still remain committed and steadfast and in finalising the work, and we'll give it our best to for a positive outcome by the Assembly. We want to reiterate that. And of course, for the work beyond May. We also wish to reiterate that will remain steadfast in our firm commitment to operationalize equity within the pandemic agreement. Saying this, we also would like to thank other delegations, and we hope that all of us would remain constructive in our further discussions and decision that would happen in May by the Assembly next week.”
United States
“….I have really appreciated all our engagement with you throughout the process these last two plus years. I know that we're all disappointed that we don't have a dance and a champagne in the room today, but I think we should also be proud of the work that we did together. Some of it is captured on paper, and I'm glad that we have the draft text to show for the work that we have done together. But beyond what's on paper, I think the relationships that we formed, the friendships that we formed, the fact that we've deepened and brought in our understanding of each other, of our priorities, and of the challenges that we're trying to tackle together. And I think that's all very helpful and can be built upon, going forward. And I'm deeply appreciative of that. The United States, like everyone else in this room, is very committed to global health security, and as challenging and frustrating as it can be, multilateral negotiations are also extremely important and can be extremely rewarding, and can actually deliver solutions that nobody can achieve alone. So, this is hard, but I think, you know, I certainly will continue to believe in in multilateral solutions and I know everyone else in this room is deeply committed as well, so I appreciate that…”
China
“….The negotiation process has been very difficult, and although it is unfortunate that no consensus was reached. The progress has been evident, and we have reached consensus more prevention than last month, since the start of and during consultations.
China has been firmly supporting the work of the Bureau and secretariat, regardless of how this 77th World Health Assembly will decide to continue the way forward to the next steps, we will be prepared accordingly and continue to actively participate and contribute to our efforts.
China has high expectations for the development of our Pandemic Treaty to improve prevention and response to global pandemics, and is committed to doing our best to work with all member states…”
DG Tedros
“…First of all, you have given it your best, even if the outcome is not what you want. So since you have given it your best, there should not be any regrets, because you have tried your best. So, what matters now is, what do we learn from this? And how can we reset things, re-calibrate things, identify the main challenges, and then move on. That's what matters. To be honest, you should actually be proud of yourself. I remember all the late nights and all the hard work.
….So, when we go to the Assembly, to be honest, let's take it as a really good opportunity to re energise, to recalibrate, to be even inspired and to have even more commitment and prepare us to address the problems and get where we would like to be…”
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