The Depth of The Divide: Reluctance to Link Pathogen Access to Benefit-Sharing. An Approaching Tipping Point in the Negotiations as Countries Stick to Their Positions
Newsletter Edition #86 [Treaty Talks]
Hi,
I am running out of woeful headlines to accompany these dispatches on the on-going negotiations to reform the governance of health emergencies at WHO. But it will be foolish to write off these discussions towards a new Pandemic Agreement even at this stage, no matter how gloomy the outlook.
We bring you this edition as these negotiations appear to be at a tipping point that would determine whether countries will be able to continue with these discussions or if this will fail. And since failure is not an option given the stature of these discussions as often articulated by proponents of the process, actors in Geneva will find a respectable way out, we are told.
It is clear that we are at a cusp of a change in this process. Later today after this edition goes to print, the overall direction of the negotiations will be discussed by WHO member states. We will update this story subsequently.
May I also admit, that it is getting increasingly difficult to keep up with both - the political process and the technical complexity in the provisions of this agreement. We are doing our best to strike a balance on capturing the key twists and turns in politics that eventually frame the technical aspects of the provisions.
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Priti
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I. ANALYSIS: INB9 RESUMED SESSION
The Depth of The Divide: Reluctance to Link Pathogen Access to Benefit-Sharing. An Approaching Tipping Point in the Negotiations as Countries Stick to Their Positions
Text-based Negotiations on Pandemic Agreement Begin at WHO, But Too Late. Proposed One Health Instrument Adds to Complexity
WHO member states finally began text-based negotiations on a new Pandemic Agreement at WHO this week after more than two years since the process commenced. This comes far too late, with just over a handful of negotiating days left to conclude this process. As a result, the risk of a weak text emerging out of this process is nearly certain now.
The outcome of such an agreement will have implications worldwide – if done badly it could complicate the governance of pandemics, observers say. If nothing is done, status quo will preserve existing paradigms on how the world responds to health emergencies – it will be a missed opportunity. There is no time left within existing timelines to do this well, unless countries find a way of continuing these vital reforms work in the coming months and years with a commitment to find lasting, meaningful change towards Pandemic Prevention Preparedness and Response.
Later today, the Intergovernmental Negotiating Body will decide on the way forward for this process. We will update this story subsequently.
In the analysis below, we look the discussions from this week on a proposed multilateral mechanism on the Pathogen Access and Benefits Sharing system, among other areas that have been taken up at the resumed meeting of the INB in Geneva this week.
The discussion on PABS in some ways, demonstrates the depth of the divide even at this penultimate stage of the negotiations. But much of this could be positioning by “either” sides. To be sure, there is more nuance to this, than the usual north-south, developed vs developing countries divide. For one, there continues to be a fair amount of interest in the mechanism across the board. And hence, while PABS could hold the key to unlock the impasse facing countries, without consensus on principles, it could potentially bring this whole edifice down at this stage.
In addition, throw in discussions around a new One Health instrument as proposed by the Bureau, and you have a perfect storm in the making.
This story tries to capture the multi-dimensional state of play in these talks. The following has two parts, one looking at the overall dynamics, and the second focusing on PABS.
We spoke with diplomats, activists, and officials involved in this process during the on-going discussions at WHO.
I. A TIPPING POINT OR MERE POSITIONING?
This week the INB proceeded in a combination of a drafting group that consisted of all countries at plenary sessions. It also carved out working groups on specific sets of articles including Surveillance and One Health (Art.4 & 5), Production & Technology Transfer (10&11), another on regulatory strengthening and whole of government and whole of society approaches (14&17). Articles on PABS, and financing, were discussed at the plenary meetings. (The draft text is here)
Officials and stakeholders following the discussions confirmed that countries were able to propose text and express reservations, disagreements and support for the text on screen. “There are text-based negotiations on some of the provisions,” a senior official who is a part of the process said this week. On certain less contentious provisions, countries proceeded through grading some of the text with yellow, indicating that there has been some level of consideration. Greening of text would indicate full consensus. So far, we understand that no text has been greened yet.
There has been rising frustration among countries on the slow progress this week with a number of Western diplomats suggesting a lack of flexibility on the part of some developing countries particularly the Africa Group.
As we noted in our earlier story this week, the Africa Group is near-central in determining the ambition of the Pandemic Agreement. Despite rumblings of a lack of unity and the particular role played by the Africa CDC, on the negotiating floor, Africa Group continues to remain united at least of matters such as PABS, diplomatic sources are of the view.
“We are close to a tipping point, and they should not push it further” a developed country negotiator told us. This could likely be read as a warning that any potential failure of the process could be directed on the inflexible positions of the Africa Group.
It is still early to reckon whether this is only positioning or whether countries really mean business. At this point, no country wants to walk away from this process.
“The goal is to give in as little as possible,” an activist said speaking of the prevailing dynamics.
Efforts have been on to bring the Africa Group closer to the positions of developed countries, notably the EU. We learned of informal discussions between the EU and Africa Group in a bid to discuss key differences on financing, PABS, One Health and technology transfer.
QUALIFIERS WORK BOTH WAYS
Many developed and developing countries seem to agree that the proposed text on the table is weak – not strong enough on surveillance for the former, and not enough on equity provisions for the latter.
Both are unhappy about the use of qualifiers to weaken the text including terms like, “as appropriate”, “as per national circumstances”, “to the extent” among others. But both are using them.
So, while qualifiers are being deployed skilfully by developed countries to weaken commitments on equity including across provisions on research and development, production, technology transfer, PABS, supply chain; developing countries are pushing for tempering down obligations on surveillance and One Health with the use of qualifiers.
The One Health Gauntlet
A proposed new One Health instrument as articulated in the Bureau’s proposal last month, is significant not only for this negotiation, but also for its potential implications in other fora.
While no member states had formally proposed for a separate track on One Health, it is not immediately clear why the Bureau proposed to do so. (This is part of a draft resolution proposed by the Bureau. See our story here)
According to some, given the difficulties in getting strong surveillance obligations in a draft Pandemic Agreement, the Bureau chose to defer it to a future line of work.
But it has also emerged that the EU allegedly requested for such a new instrument and the Bureau was compelled to include it in its proposal. We were unable to confirm this by the time this story went to print. But do recall that the EU had suggested substantial proposals on surveillance and One Health.
While this came as a surprise to many, for some countries they had factored this in. “We knew this was coming. Now we will have to make a determination whether we are willing to agree to One Health provisions in return for PABS,” a developing country negotiator told us this week.
Having a One Health instrument under the aegis of WHO is going to be far from easy. First, human health cannot take precedence over other dimensions of One Health – subject experts say. Second, other forums can also demand a separate One Health instrument. With four agencies involved in the governance of One Health, administering such a new instrument, without the risk of fragmentation is going to be challenging.
The underlying nature of a future One Health instrument is also less clear (similar to considerations for a PABS instrument). While developing countries appear open to “guidelines”, proponents seem to be keen on pushing for binding standards.
“A One Health instrument was never discussed, we cannot agree to this at the last minute”, another developing country negotiator said.
Sources tell us that proponents are determined to bring in stronger elements on One Health, either in the existing draft agreement, or through a dedicated instrument.
To be sure, while developing countries are not against the principles of One Health, they are less sure what this means in terms of their capacities and resources to implement these potential new obligations.
While some remain resigned to agreeing to One Health provisions, they point out, that this will not add value to an overall Pandemic Agreement at WHO.
For developed countries, One Health signifies a concrete provision encapsulated in strict terms of securing global health security. Civil Society including Third World Network, have been of the view that surveillance obligations will farm out commercially attractive data – a factor, that they say, is driving the One Health agenda in the context of the Pandemic Agreement.
In order to sweeten the pill of One Health, some financing support is also being dangled in front of reluctant countries. But proponents of a dedicated financing mechanism in a Pandemic Agreement point out that, financing is needed not only for potential new obligations on One Health, but for also for overall measures proposed in the context of improving surveillance.
Financing
We wrote earlier this week on the internecine wars in health financing. So, while financing continues to be a sticking point in netting these negotiations towards a conclusion, there are no clarity or assurances that the Pandemic Fund will work to help support a Pandemic Agreement.
Coming to the fore, are concerns and questions on the mandates of not only the Pandemic Fund, but also other actors in the financing space. “The Board of the Pandemic Fund can make a determination on whether they can fund proposals stemming out of a Pandemic Agreement,” a developed country negotiator told us this week.
Essentially, the mandate of the Pandemic Fund is narrower than the scope of the Pandemic Agreement.
“Every board has a particular mandate. We cannot force entities to fund our activities”, a developing country negotiator told us. To be sure, financing entities in the health space are power centres determining projects and allocating resources to countries.
So, while a coordinating mechanism is being proposed to get out of the financing puzzle, it is not clear if such an arrangement will work effectively to meet the needs of PPPR challenges. On the other hand, a dedicated fund for financing, remains as elusive as before.
Some point to the need to underscore self-financing efforts in the context of PPPR. “Countries who are being protective of sovereignty, seem to give up on sovereignty when it comes to financing”, one developed country negotiator told us. No one wants to put their own money for PPPR, but at the same time they want to protect their sovereignty, the person added.
II. THE DIFFERENCES ON PABS
The INB engaged in a 12-hour discussion on Article 12 of the draft Pandemic Agreement this week that governs the PABS. As has often been noted, the PABS mechanism is an instrument within this instrument, with its own set of modalities and governance structures that need to be discussed and negotiated, parallel to the overall Pandemic Agreement.
This week, discussions on PABS began with a fundamental disagreement between countries on whether pathogen access should be linked to benefit-sharing. This is significant, because the recognition of this principle is central to the tenets of the Convention on Biological Diversity and the subsequent Nagoya Protocol on Access and Benefit-Sharing.
Without consensus on this basic principle, the details will not matter, experts say.
Developed countries including the EU, and other stakeholders have called against making such a link. (The industry has called monetizing access as a “no-go”.) However, some developed countries do recognize that in order to carve out a Specialized International Instrument (SII), such a link will need to be acknowledged, a developed country negotiator explained to us this week.
If a new PABS mechanism will be designated as a SII, countries will insulate themselves from the Nagoya Protocol and national level ABS laws, experts say. The status of a SII, is attractive for many countries, who have long complained about complying and implementing the Nagoya Protocol, and dealing with different ABS rules across countries.
So essentially, developed countries want a SII that promises legal certainty, but appear unwilling to agree on the terms of benefits as articulated by developing countries.
“We understand that it is difficult to put in place all aspects of a PABS mechanism right now. It is like building a car with four wheels and an engine. Just because it has four wheels does not mean it is a car. We need the engine – to make this mechanism workable. Without meaningful benefits, this cannot be called as a SII,” a developing country negotiator told us.
Officials described the PABS discussions this week as “difficult”. The UK is not in Favor of specifying a percentage of sharing real-time production with the PABS system. (This ranges from 10% as proposed in text on the table, with Africa Group pushing for 40%.) The US allegedly raised concerns around wastage. Recall that the industry is now in favour of PABS, and in fact appears to give leeway to countries to negotiate this percentage.
One developing country negotiator told us that the G7 countries are playing a shameful role in weakening benefits in the PABS system. There is reluctance in agreeing to monetary contributions and efforts to limit this to voluntary terms, sources told us.
A developed country said, “A PABS system will not deliver equitable access. We will end up interfering with free access and innovation.”
For some, sharing of benefits, particularly real-time production is the only real binding equity related provision in the entire Pandemic Agreement.
Not all agree. Some what to take it further. “We are less concerned about the percentage figures. What is more important for us is mandatory tech transfer in the context of PABS. That is the only way you can diversify production at the height of a health emergency”, a developing country delegate explained to us.
Mandatory tech transfer as a benefit in Article 12 is going to be a hard sell, for countries who have been wrangling endlessly on voluntary and flexible terms under Article 11. “Mutually agreed terms on tech transfer is an important benefit for us in the PABS system. We need a commitment on licensing,” the developing country negotiator told us.
Also keep in mind, that the tech transfer battle is not for everybody. Smaller countries looking to serve their own populations, are happy with regional collaborations. Those with large production facilities and with an appetite to serve other markets are keen on pursuing this also in the context of diversifying facilities across the world.
There was also disagreement on referring to the Pandemic Influenza Preparedness Framework in the context of PABS.
So, while there is a fair amount of appetite for PABS, there does exist leverage for developing countries, the original proponents for a PABS system. Whether this can be exercised will come down to the wire in the coming days.
And if you think all this is not complicated – consider what comes after. Countries also discussed the legal form a future PABS mechanism could take. Should it be an annex (Article 30) to the Pandemic Agreement, or a protocol (Article 31). A protocol could technically be adopted as regulations under Article 21 of the WHO Constitution, to attract more signatories. Some caution that the ratification of the Pandemic Agreement could suffer if PABS is brought in as a separate instrument. They also point to other elements in the Pandemic Agreement such as on allocation, financing for example, that need to collectively flow with the PABS system. (The legal aspects have discussed in a white paper. We will follow up on the details soon.)
And there is the other detail on when and how PABS can be triggered. It makes logical sense for PABS to be triggered during a PHEIC, ahead of a declaration of a pandemic in order to contain the emergency, but we learned that some developed countries want to narrow the scope of the application. (The trigger for a PABS could potentially be linked to the declaration of the PHEIC in the International Health Regulations.)
How “Pressure” is Uniting Negotiators
Even as countries are divided along rather stark lines, there seems to be some level of empathy for those on the other side. We found this to be striking.
Negotiators are operating under a variety of pressures. Not just from a fast-approaching finish line, but also a range of other factors. Some are facing pressure from civil society organizations dissuading countries from signing on to a weak agreement. Others, such as the UK, for example, is dealing with a media campaign of disinformation around provisions in the agreement. The Americans are dealing with an overall opposition to WHO processes among sections of political parties.
“We are under pressure from CSOs to not sign an agreement here. But ultimately, we, as governments, have to take a balanced view,” a developing country negotiator told us. “We understand the pressure on the UK,” referring to UK’s suggestion against committing to sharing a specific percentage of real-time production in the PABS system, the person
TAIL PIECE
With six days to spare, for the conclusion of this set of negotiations that as of now are scheduled till May 10th, there are significant areas of the text that countries need to cover and agree on, including governance and compliance issues.
When this story went to print, countries were discussing intellectual property and tech transfer (Article 11). A bulk of the disagreement on these issues revolve around “Mutually Agreed Terms” and “Voluntary”. (We will follow up with a separate story on this piece).
“If developing countries come back with waivers on intellectual property, this discussion will go nowhere”, a developed country negotiator cautioned last week.
In addition to the agreement itself, countries will also negotiate a resolution on the process that will be considered by the World Health Assembly in three weeks’ time.
“The rate at which we are going, we will be unable to agree on even a resolution. In my view these discussions are in a deep quagmire. What is needed is a change of heart and mind, not text”, a developing country negotiator told us this week.
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