"Pandemic Treaty Talks Hobbled by Inefficient Process": Negotiators. Countries Struggle Charting a Path While Also Debating Provisions
Newsletter Edition #54 [Treaty Talks]
This week I was looking for an equivalent in global health, of Adam Smith’s ‘Invisible Hand’ metaphor for laissez-faire economics, to describe how unseen power shapes process in Geneva. It is hard to describe a reality one does not see in black and white, but one that can be felt.
In today’s edition we try to keep up with the tortuous process-related discussions that have mired the negotiations towards a Pandemic Agreement. So while member states are determined to bring this back on track, the deadline for May 2024 is beginning to look like a mirage.
We noted earlier this week, how geopolitics has splintered international solidarity and is adding to this cocktail of commercial interests, nationalistic positions and a slipping timeline. The coming weeks will be crucial as countries will try to bridge differences in informal consultations.
Read on, and write to us. Grateful as usual to our sources for educating our readers.
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I. STORY OF THE WEEK
"Pandemic Treaty Talks Hobbled by Inefficient Process": Negotiators. Countries Struggle Charting a Path While Also Debating Provisions
WHO member states struggled to understand and define the process of conducting negotiations during the first segment of the seventh meeting on the Intergovernmental Negotiating Body this week. This is even as they made slow and laborious progress in trying to improve a proposal for the negotiating text of a draft Pandemic Agreement, with their own proposals. This meeting will resume to conclude in early December and informal consultations will be conducted in the interim period.
Countries also decided to create subgroups on certain provisions in a bid to make quicker progress in attempting to narrow down vast divergences in positions on key issues including on technology transfer, intellectual property matters, financing and access and benefits-sharing among others.
While officially no country has as yet sought additional time for concluding the negotiations by the current deadline of May 2024, scores of delegations we spoke to, privately admitted that an extension would be inevitable in due course.
WHO DG Tedros who has been pushing on meeting the deadline, sounded less sure this week about concluding the negotiations by May 2024, during his remarks at the launch of the latest report of the Global Preparedness Monitoring Board.
Expressions of dissatisfaction ran like a motif for much of this week. In general, most countries have been unhappy with the process of structuring the negotiations in the coming days and weeks, and the precious time was spent in reworking modalities. “This is an unusual way of conducting discussions, unlike other international forums,” a developed country negotiator told us.
Apart from process constraints, few key emerging areas of discontent for most developing countries include the omission of Common but Differentiated Responsibilities from the current text, lack of disclosures on public funding in research and development among others. For developed countries, text on IP and financing are a source of consternation.
This story reports on the perceived shortcomings in the way these negotiations are being conducted and the discussions on substantive provisions. We spoke with numerous negotiators across countries during this week on the sidelines of the meeting in an attempt to get a balanced view on these proceedings.
WHY PROCESS MATTERS?
Process shapes outcomes, in first offering a level-playing field for all countries before even formal negotiations begin, experts say. Without the perception of fairness, countries have spent months in trying to ensure their proposals are first taken on board. The fight has been to right a process, before even the real task of negotiating on substance begins. (We have reported on this earlier.)
Seasoned diplomats in Geneva observed that successful outcomes from multilateral negotiations hinges on a well-structured process. An overwhelming number of negotiators told us, that on this count, the INB process had so far failed to be efficient. A number of reasons can be attributed to the poor process in these negotiations, according to diplomatic sources - from a Bureau-managed process that has been perceived as sub-optimal, to a clear lack of ownership on the part of member states in proactively shaping these proceedings, have resulted in months being lost in a seemingly circular processes.
In a back-and-forth process between the member states and the six-member Bureau (represented by the regions of the WHO), proposals were first sought and then fed into the text during the various intervening stages from a conceptual zero draft, to a zero draft. A compilation text was also produced that took into account all proposals by countries. The process then led to a Bureau’s Text and the latest iteration has been called as a proposal for a Negotiating Text.
At every stage, member states were of the view that their proposals, some of which were diametrically opposite to each other, were not taken on board. The Bureau responded by opening up for further suggestions and taking in proposals again. But in an effort to streamline text, the Bureau made choices including getting rid of “options” for some of the provisions, to arrive at a legal language in a treaty.
The Bureau defended the process that the latest iteration was informed by informal consultations led by co-facilitators. This process involved a few countries that led and conducted discussions on specific articles, and in some cases suggested proposals back to the Bureau. Some of these efforts had cross-country support – diplomats pointed out. But these did not find way into the Negotiating Text by the Bureau. (The US, the Africa Group, Peru among others, raised this in their statements made at a public session this week.) This has made countries question the intent of the Bureau and sowed further distrust in this process.
While some countries believe that the latest iteration is a good enough text to begin negotiations, for many others, the preference is to strengthen this text further, before beginning to formally negotiate.
“We will simply not accept a text that does not reflect all proposals from member states,” a developing country negotiator told us this week.
It is understood that the efforts are now to strengthen this text until February 2024 before negotiations begin in earnest, one diplomat said. (There are two marathon sessions in February and March next year.)
Yet, for many countries the current proposal is already the basis for negotiations. So in effect, there isn’t a clear understanding even within member states on the status of the text.
For many developing countries starting with a strong negotiating text is preferable than to begin discussions on a text that they see as “weak” and “compromised”. Many delegations used the word “unbalanced” to describe the text – strong on prevention and preparedness pillars, but weak on response measures – a key priority of developing countries.
In their statement, the Equity Group comprising 29 countries emphasized the importance for a level-playing field in these negotiations.
“Without having a view on the full spectrum of proposals from all countries, we will not be able to offer concessions. We need to weigh provisions and trade-offs in light of the whole instrument. If you are asking me to sign up to more obligations, without any understanding on financing, I will not be able to negotiate based on an incomplete picture,” a developing country delegate said emphasising the interconnectedness of the provisions.
By not reflecting all positions in the proposed negotiating text, the bureau has taken the process back several steps, diplomats said.
“A part of the frustration is member states feel that they have not been heard,” a developed country negotiator told us this week.
When this story went to print, the 30-page proposed negotiating text had swelled to 90+ pages based on suggestions from member states on articles in Chapter Two of the text up until Article 12, sources said.
THE ROLE OF THE BUREAU
Across the board, countries seemed disappointed with the overall management of the process by the INB bureau, while being appreciative of the Bureau’s efforts even as the various iterations of the text fell short of expectations.
Some delegations also are also wary of the role of the WHO secretariat in shaping these processes. “The experts from WHO have not been politically sensitized to speak to this multilateral process,” a developed country negotiator told us.
To be sure, the Bureau is not an amorphous entity. The Bureau members have had an extremely difficult task to take along 194 member states with diverse politics and interests, and to map out and negotiate something that does not exist. This was to be expected, given the complexity of the task. The tight timeline that was obvious right from the beginning, should have dictated the Bureau’s efforts to ensure a level-playing field for all countries to structure the negotiations efficiently, sources said.
The regional representation in the Bureau has not been particularly helpful with the exception of well-coordinated regions including the Americas, negotiators say. [In a statement made by Mexico (on behalf of Argentina, Brazil, Canada, Colombia, Chile, Ecuador, El Salvador, USA, Honduras, Jamaica, Nicaragua, Guatemala, Panama, Paraguay, Peru, Dominican Republic, Uruguay), called for taking into account the experience of regional offices in the technical aspects of the pandemic instrument.]
The role of Bureau members in guiding the negotiations is not entirely clear – for example while they can coordinate and feed into regional discussions, they also perform this role in an individual capacity. The role of individual personalities also has impact on negotiations, observers say.
The Bureau is structured in a manner so as to represent a balance across regions. But the varying interests and levels of development within a region makes a coordinated position near impossible, diplomats pointed out. (Ex: Japan representing developing countries in the region).
There is a growing recognition that countries have lost any latitude or political capital within the Bureau. Diplomats are now keen that this should be a member-state led process to rectify the alleged and perceived pressures operating on the Bureau.
Some even questioned the Bureau’s mandate in working on the draft texts. Typically, in many negotiations in other forums, a chair or co-chairs are appointed for negotiations for a set of topics. But it is not very often that a Bureau is responsible for drafting texts, diplomats said. While there is no one size fits all approach, usually negotiations are farmed out into smaller groups with one representative from a high-income country and another from the developing world, who act as brokers to get countries closer in their positions. Alternatively, a chair suggests a proposal that countries pick apart with their preferences and suggestions. A range of these options were highlighted this week, as more useful approaches than letting the Bureau manage the process.
(It has been pointed out that the first draft during the negotiations of the WHO Framework Convention on Tobacco Control [WHO FCTC] was also reworked substantially)
Multilateral Negotiating Processes in Other Forums:
Indrajit Bose, Climate Change Adviser for Third World Network who has worked closely on environmental negotiations explained to us: “Contact group (CG), or informal consultations (IC) are launched on agenda items, which are typically co-chaired or co-facilitated by a member from a developed country and a member from a developing country. When the CG or IC is launched, Parties present their views on the agenda item, and the Secretariat takes detailed notes. Alternatively, Parties also make submissions on what they would like reflected in the decision text. Once all the views are heard, the Co-Chairs/Co-facilitators issue a draft negotiations text. This can be in different forms. A first iteration could be elements of a decision text, capturing the views of Parties. Second stage could be a draft decision text with proper language (recalls, shall, should, invites, decides etc). The important thing to keep in mind in any negotiations text is it should capture the views of ALL the Parties. If the text is not balanced, (which is mostly the case), it does not offer a level-playing field for Parties to begin negotiations and a lot of time is spent in capturing Parties' views. Typically, it is the developing country views that are not in the negotiations text.
Therefore, it is important that there is a strong developing country co-chair or co-facilitator. In the UNFCCC, we often say process shapes the outcome. If the right processes are not followed, it leads to multiple crises later on in negotiations, the biggest one is not offering a level-playing field to Parties. When the views are different, text should ideally be presented as options, on which Parties negotiate. Text can also be bracketed. The rule "nothing is agreed till everything is agreed" applies.”
"In the context of norm-setting at the World Intellectual Property Organization (WIPO), there isn’t one single approach, it depends on the discussions. For example, in March 2009, Brazil, Ecuador, and Paraguay submitted this text which became the basis of negotiations for what led to the WIPO Marrakesh Treaty for the Blind.. In the WIPO Intergovernmental Committee on Genetic Resources, Traditional Knowledge, and Folklore, the WIPO General Assembly agreed that the text prepared by Ian Goss, the chair, would be the basis of negotiations for an international legal instrument on intellectual property and genetic resources, Knowledge Ecology International’s Thiru Balasubramaniam explained to us. KEI follows such negotiations across forums."
INFORMAL SESSIONS TO BREAK IMPASSE?
A number of countries both developing and developed countries indicated the need for informal sessions to make progress. But there has been some resistance among some large developing countries to use this approach – they see as undermining the Bureau and its members, sources told us.
As the week wore on, countries decided to have subgroups to address specific provisions. Smaller delegations have indicated the preference for sequential discussions and to avoid parallel sessions.
Experts fluent also with other forums, cautioned out how informal sessions can sometimes wilfully restrict numbers and exclude small countries from participation. Experts referred to WTO – a typical practice understood as “green rooms”.
As per suggested modalities from the Bureau, countries were expected to accept the Negotiating Text as the default text – if informals do not result in consensus. Many countries were not in favor of this approach. On behalf of the Bureau, Co-chair Roland Driece suggested breaking out in smaller groups to discuss informally “during coffee breaks”. Some diplomats viewed this as counterproductive, where only the big countries can talk bilaterally in a non-transparent manner, while excluding others.
Sources also suggested expanding the drafting group to include experts – a proposal that came from some developed countries. This was pushed back by several developing countries.
ON SUBSTANCE: THE GULFS BETWEEN COUNTRIES
In their statements responding to the proposal of the negotiating text, several themes were raised by countries. While developed countries were not comfortable with language on intellectual property, financing and had questions on the pathogens access and benefits sharing system, for developing countries the deletion of the principle of Common but Differentiated Responsibilities, the lack of commitments on public funding on research and development, commitments on health care workers, on debt relief were pain points.
On CBDR discussions, some developing countries worry that any compromise in the context of the Pandemic Agreement, will be wielded against them in other forums including in climate discussions where commitments on tech and financing are dominating policy directions.
“We are also keen on linking CBDR to other determinants of health, including water and sanitation issues given their implications for health systems,” a senior developing country diplomat told us.
On curtailing intellectual property rights during health emergencies, a lightning rod in these discussions, the EU, the US, the UK, Ireland, Sweden, Australia, among others expressed reservations on the language. As before, a number of them pointed to the WTO as the appropriate forum for these discussions. (In their statement, Tanzania emphasized that IP matters should be discussed in the context of this agreement stating that IP impacted the access to medical products during COVID-19.)
This week also saw extensive discussions on the nature of technology transfer in a Pandemic Agreement [Art 11]. It is understood that fresh proposals were made by Colombia to strengthen existing text on this matter, according to sources familiar with the proceedings.
Some also raised questions on how a PABS system would work, if it is too complicated to work as intended. Like other provisions, developing countries are expected to submit additional proposals on PABS to improve upon what is proposed in the negotiating text. It is understood that some developed countries are also working internally on improving proposals on PABS.
While countries welcomed the new article on sustainable production [Art.10], this does not reflect a more holistic proposal made by co-facilitators on Supply Chain [Art.13], many delegations pointed out. Governance questions on linking research and development, technology transfer, production, supply chain, last mile delivery, regulatory issues have not been included in the text as proposed by countries. (There is no binding allocation mechanism in the current text – something that countries intend to bring back on the table, given the failure of the COVAX Facility during COVID-19, diplomats said.)
It continues to be unclear how the interim medical countermeasures platform discussed at WHO will sit in with INB and IHR deliberations on the access to countermeasures.
FRAMEWORK CONVENTION Vs AGREEMENT: “THE POLITICS OF SEMANTICS”?
While countries debate function, discussion on the form of the instrument will soon follow. The choice to call it a Pandemic Agreement in the proposed negotiating text is a conscious one, according to those familiar with these matters.
A number of delegations, both developing and developed countries, told us this week, that they would prefer to move away from a Framework Convention approach, and to have binding concrete commitment in an Agreement. The Framework Convention approach, they say is a politically expedient choice to agree on principles and to park specific protocols to a later stage – that the proposed negotiating text seeks to do to a certain extent sources said.
Ethiopia on behalf of Africa Group said: “…we find some of the key issues to have been [presented] in an aspirational manner with no real commitment on how they will translate into concrete actions. The draft negotiating text takes a framework approach, and relegates important elements, such as the pathogen access and benefit sharing system, and the financing, to be established at a later date. There is also an overemphasis on unilateralism or national approaches in several articles, which can undermine the effectiveness of this international legally binding instrument.”
Some observers say that calling it Agreement or a Framework Convention is a politics of the semantics. “Countries can decide to call it an agreement, but adopt the framework approach,” a legal expert told us over coffee this week in Geneva.
WHAT IS NEXT?
The next few weeks before the resumed December session, will see informal consultations by specific articles led by Vice-Chairs of the INB Bureau: Article 4,5,6 led by Japan; Art 10,11 by Egypt; Article 12 by Thailand; and Article 19 and 20 by Brazil, sources said.
Apart from the legal basis of a new instrument, the big questions on financing, accountability and governance have been left without adequate discussion for far too long, many stakeholders are of the view. This will need to be tackled sooner than later.
Experts say that governance discussions will become critical for the future implementation of any new instrument. Expect power and politics in determining governance mechanisms.
As discussed in these pages several times, the PABS system on information exchange and sharing of benefits, many hope will be the one decisive factor that can pull divided groups for a meaningful outcome. But for the moment, the differences in how countries are approaching this continues to be far apart.
It appears that countries are assessing the distance they can go with their interests, trying to understand how much is “posturing” and how serious the ostensible “red lines” are for each delegation.
Diplomats are also aware that while they can use the tight timeline as a leverage, there are limits to how long they can hold on to their positions, without losing political will and destabilising the timeline completely.
“Countries have to move away from their maximalist positions if they want to arrive at a consensus,” a diplomat from a large developing country said.
“We are diplomats, we are trained to negotiate. But if there is no will, or intention to bridge positions, we will not have an agreement,” a senior developing country diplomat indicated.
The process has exhausted negotiators so much that there is not enough energy during this crunch period to fight on substance, some said.
Sources familiar with the temperature of these discussions also indicated that if countries do not like the direction of this instrument, some may decide to walk from it. There are beginning to be some overtures from some developed countries, it is learned. It is difficult to confirm how serious these conversations are. This is one of the reasons why among others, Africa Group has been keen on tying the two process of the Accord and the changes to the IHR into a single package.
(This also has similarities with discussions at the WTO, where developed countries notably the US have disrupted dispute settlement procedures, unhappy with the rules.)
To be sure, this is a “sellers’ market” – developed countries seem to be reasonably happy with the existing IHR. It is developing countries that have been keen to change rules and bring in new rules to expand commitments on response measures.
But threatening to walk away from a new instrument, could backfire on all countries, given the interconnected nature of pandemics, health emergencies and the ubiquitousness of the climate crises. Besides, at stake are also future markets in developing countries in the context of health emergencies from medical products to health-related data.
The real risk is the retreat of internationalism in general on the back of virulent populism and just plain politics of serving domestic constituencies. If that happens, status quo will prevail and 20+ million deaths from COVID-19 would not have made a difference.
TAILPIECE: PEP TALK FROM WHO DG
In his remarks this week, DG Tedros tried to pep up negotiators:
“Do not forget the historical significance of the city in which you are meeting.
It was in this city, just a couple of kilometres from here, that the Geneva Conventions were adopted in 1949.
It was in this city that Cold War rivals met for the Geneva disarmament conference in 1965.
It was in this city that you, the Member States of WHO, negotiated the Framework Convention on Tobacco Control 20 years ago.
The challenges you face now are no more insurmountable than the challenges our forebears faced in those negotiations.
They overcame their differences and succeeded. And so will we – step by step, line by line.”
Refer to country statements that we published separately earlier in the week: Palestine & "Unbalanced Text" Dominate Concerns of Developing Countries, Developed Countries Bristle at IP & Financing [Country Statements: INB7]
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