Draft Pandemic Agreement Text Does Not Bite the Bullet, Suggests Subsequent Protocols To Defer Commitments on Key Issues
Draft Pandemic Agreement Text Does Not Bite the Bullet, Suggests Subsequent Protocols To Defer Commitments on Key Issues
Newsletter Edition #48 [Treaty Talks]
Hi,
The negotiating text of the Pandemic Accord comes at a sombre moment, in the backdrop of fractured geopolitics with a festering wound of the Middle East at its heart.
It is not clear whether the aggressive, Western-sanctioned retaliation by Israel on Palestine, following attacks by terror group Hamas on Israel, will bleed into global health negotiations in Geneva. It is certainly far from the conducive environment that countries would have hoped to have in order to shepherd these crucial negotiations that have now entered a sensitive phase.
(Remains to be seen whether the Israel-Palestine conflict will divide WHO member states the way the Russian-Ukrainian war drew the line last year. In an unequivocal statement from DG Tedros, WHO has “implored”, “pleaded” Israel to reverse the forced eviction of hundreds of thousands of civilians from Gaza and incessant attacks on health care facilities.)
Health negotiators in Geneva, have their own battles to pick and tide over the rough and muddied waters of international politics. To be sure, it is incredibly hard to arrive at legal certainty towards a new Pandemic Agreement on the basis of assumptions, while predicting positions of how member states would weigh their interests.
In this edition, we get you a first look at the latest draft of the Pandemic Agreement. We will be following up with deeper analysis of the key provisions and the subsequent informal consultations in the Geneva in the coming weeks.
Write to us with your thoughts.
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We regret the delay in sending this to you. I filed this in the midst of travels. Thank you for understanding.
Best,
Priti
Feel free to write to us: patnaik.reporting@gmail.com or genevahealthfiles@protonmail.com; Follow us on Twitter: @filesgeneva
I. STORY OF THE WEEK
Draft Pandemic Agreement Text Does Not Bite the Bullet, Suggests Subsequent Protocols To Defer Commitments on Key Issues
Industry pans it, developing countries say draft “unbalanced” with a one-sided focus on prevention, falling short on obligations on response.
After more than two years of discussions on what countries would like to see in a Pandemic Accord, the Negotiating Text from the Bureau of the Intergovernmental Negotiating Body set up to broker this new instrument, has sought to strike a balance to in order to first draw countries into negotiations – but is being perceived as unbalanced and one-sided with a focus on prevention relative to obligations on response, diplomats said.
From suggesting provisions on pathogens access and the sharing of benefits, to language on One Health, from a new financing mechanism, to sustainable production, the draft might be able to get countries to begin text-based negotiations. Some developing countries hope to add text to strengthen the draft so that they can begin negotiations, diplomatic sources told Geneva Health Files.
With the current deadline of May 2024 to conclude these discussions, many stakeholders are of the view that it is critical that countries accept this version of the text as the basis for negotiations. The next meeting of the INB is scheduled for early November.
“This is an improvement on the Bureau’s text. But whether it is good enough to be a negotiating text we have to see,” a developing country negotiator told Geneva Health Files.
For this analysis, we also spoke with numerous negotiators to capture their preliminary impressions of the draft. When this story went to print, the negotiating text had not yet been published online by the INB, but Geneva Health Files has examined the text. In this story we focus on a few key, contentious provisions.
THE NEGOTIATING TEXT
The new Negotiating Text is whittled down to 29 pages with 36 Articles compared to the earlier version - the Bureau’s text.
The new draft text begins with 13 preambular paragraphs. The introduction defines 13 terms that have been referred in the draft including on genetic sequences, genomics, infodemics, one health approach, pandemic, pandemic-related products, pathogens with pandemic potential, and specifics around the WHO Pathogen Access and Benefits Sharing System (PABS) on recipients and coordination laboratory network.
The first chapter of the draft also refers to the objective and scope suggesting that the agreement will only address pandemics. As many as 12 different principles have been drawn up including on human rights, sovereignty, equity, responsibility, solidarity, transparency, accountability, proportionality among others.
Common but Differentiated Responsibilities has been replaced with “recognition of different levels of capacity.” It reads thus: “Countries have varying levels of pandemic prevention, preparedness and response capacities which presents a common danger, such that support to countries with capacity needs is required, within means and resources available.”
Most developing countries had been pushing for the incorporation of CBDR as a principle in order to shape provisions on financing and implementation capacities.
KEY PROVISIONS
The second chapter of the draft contains 17 substantive articles with provisions on pandemic prevention and public health surveillance; one health; health and care workforce, monitoring reviews; R&D, sustainable production; transfer of technology and know-how; access and benefits sharing; supply chain; regulatory strengthening; compensation and liability management; implementation capacities; financing among others.
Prevention related measures
There are detailed commitments on prevention related measures on Pandemic prevention and public health surveillance, and on one health [Art.4&5]. These have been clear priorities for many developed countries. Note that although WHO member states are yet to negotiate a definition on one health, the draft frames obligations on the same. (This is even as One Health is already a priority for the World Bank’s Pandemic Fund.)
Developing countries were in favor of more time to implement these obligations on one health, some of which require coordination and consultation beyond the ministries of health, negotiators told us.
“We do not have systems in place to implement one health. It is going to be expensive for us,” a developing country diplomat told us. (The language on One Health does have requirements on benefit-sharing [Art.5.(2)])
THE BIG FIVE: R&D, TECH TRANSFER, SUSTAINABLE PRODUCTION, PABS & SUPPLY CHAIN
Initial responses from developing countries on the text suggest disappointment with some of the central issues in the pandemic accord including on R&D, tech transfer, diversifying manufacturing, PABS & supply chain.
“These are key provisions for developing countries, but there are very few binding obligations in the draft. The text will fail to operationalize equity – a key mandate of the INB,” a developing country negotiator told us this week.
One of the proposals from co-facilitators, assigned to lead on informal consultations on this topic had suggested ways to link issues of R&D, sustainable production, and supply chain. Sources say that these have not been taken on board.
In this section we focus on key articles:
Article 9. Research and Development
Countries have had several informal consultations on this article over the last few months.
The provision seeks to focuses on building diverse capacities and institutions for R&D, particularly in developing countries. It includes suggested measures on calling for sustained investment on R&D for pandemic related products; technology co-creation; on clinical trial capacities. On conditions for public-funded R&D, the draft is less ambitious.
The latest draft suggests the following: [excerpts]
“4. Each Party shall, in accordance with its national laws and considering the extent of public funding provided, publish the terms of government-funded research and development agreements for pandemic[1]related products, including information on: (a) research inputs, processes and outputs, including scientific publications and data repositories with data shared and stored securely in alignment with Findability, Accessibility, Interoperability, and Reusability principles; (b) pricing of end-products, or pricing policies for end-products; (c) licensing to enable development, manufacturing and distribution, especially in developing countries; and (d) terms regarding affordable, equitable and timely access to pandemic-related products during a pandemic.”
Rachael Crockett, Senior Policy Advocacy Manager at the Drugs for Neglected Diseases initiative told us:
“The WHO CA+ is without a doubt a critical opportunity for international agreement surrounding measures for a more equitable biomedical R&D system - in particular, measures that embed the principles of access, affordability, and equity into the R&D process itself. This includes by articulating specific globally agreed norms that acknowledge the critical role that governments can play in ensuring their public investments in R&D are designed to deliver equitable access.
It is extremely disappointing to see the exclusion of a provision to attach conditions to public R&D funding, which was present in the zero draft, and supported by many countries, including but not limited to the global south. An obligation to publish contract terms, which we support as a separate obligation, does not ensure that public R&D funders use their leverage to attach pro-access conditions to their funding in the first place, nor ensure that recipients of funding enact pro-access activities. Both are needed - transparency and conditions - to not only ensure the fast and efficient development of health tools, but also to ensure equitable access.”
Also, DNDi is of the view that the negotiating text also focuses very heavily on downstream R&D issues – like clinical trials. “Despite member state proposals to widen the focus to include early-stage collaboration and open science approaches pre-clinical, there are no provisions relating to early-stage R&D activities, including discovery research, where investments and collaboration are needed to ensure an end-to-end approach, in addition to clinical trials,” Crockett added.
Article 10. Sustainable Production
In a new formulation, the article on sustainable production has provisions to identify and maintain production facilities, and to work with shortlisted manufacturers.
The article also contains provisions on royalty free licenses; to waive and manage for a limited duration royalties for the use of technology related to pandemic products. (This has seemed to upset the industry very much.)
Excerpts:
“(d) encourage entities, including manufacturers within their respective jurisdictions, in particular those that receive significant public financing, to grant, subject to any existing licensing restrictions, on mutually agreed terms, non-exclusive, royalty-free licenses to any manufacturers, particularly from developing countries, to use their intellectual property and other protected substances, products, technology, know-how, information and knowledge used in the process of pandemic-related product development and production, in particular for pre-pandemic and pandemic diagnostics, vaccines and therapeutics for use in agreed developing countries;
(e) actively support, participate in and/or implement, as appropriate, relevant WHO technology, skills and know-how transfer programmes and initiatives aimed at enabling developing countries to produce pandemic-related products, in order to facilitate strategically and geographically distributed production of pandemic-related products; and (f) support public and private sector investments aimed at creating or expanding manufacturing facilities of pandemic-related products, especially facilities with a regional scope of operations that are based in developing countries….
…..3. Each Party, in addition to the undertakings in paragraph 2 above, shall: (a) encourage research and development institutes and manufacturers, in particular those receiving significant public financing, to waive or manage, for a limited duration, royalties on the use of their technology for the production of pandemic-related products; (b) promote the publication, by private rights holders, of the terms of licensing agreements or technology transfer agreements for pandemic-related products; and (c) promote the voluntary licensing and transfer of technology and related know-how for pandemic-related products by private rights holders with established regional or global technology transfer hubs or other multilateral mechanisms or networks.”
Article 11. Transfer of technology and know-how
During the informal consultations, the discussions on technology transfer have been one of the toughest with very little appetite for compulsory obligations on sharing technology on the part of developed countries. (Even at the recent UNHLM discussion on PPR, similar reservations have prevailed.)
“There was no movement or suggestions from developed countries on ways to operationalize non-voluntary transfer of technology. They played defence, not aiding in the discussions,” a developing country diplomat told us.
This article however, contains language on non-exclusive licensing of government-owned technologies and has text on time-bound waivers of IP rights in the context of pandemics. These issues have raised the heckles of the industry (see statement below).
For some stakeholders, having obligations on voluntary, non-exclusive licensing that involves pooling of patents, is a middle path compared to waiving of IP rights.
It also has weak language on accessing undisclosed information. (Recall that the fight to reference trade secrets was lost by developing countries at the WTO’s TRIPS ministerial decision in June 2022.) [ It reads thus [Art 11.3.c]: “(c) encourage manufacturers within its jurisdiction to share undisclosed information, as defined in Article 39.2 of the TRIPS Agreement, with qualified third-party manufacturers where such information prevents or hinders urgent manufacture by such qualified third parties of a pharmaceutical product that is necessary to respond to the pandemic.”
The provisions also call for protecting TRIPS flexibilities in the context of bilateral or regional trade or investment negotiations.
See excerpts:
“1. The Parties, within a set time frame, working through the Conference of the Parties, shall strengthen existing, and develop innovative, multilateral mechanisms, including through the pooling of knowledge, intellectual property and data, that promote the relevant transfer of technology and know-how for the production of pandemic-related products, on mutually agreed terms as appropriate, to manufacturers, particularly in developing countries.
2. The Parties shall: 15 (a) coordinate with, collaborate with, facilitate and incentivize the manufacturers of pandemic-related products to transfer the relevant technology and know-how to manufacturer(s) on mutually agreed terms as appropriate, including through technology transfer hubs and product development partnerships, and to address the need to develop new pandemic-related products in a short time frame;
(b) make available non-exclusive licensing of government-owned technologies on mutually agreed terms as appropriate, for the development and manufacturing of pandemic-related products, and publish the terms of these licenses;….
…3. During pandemics, each Party shall, in addition to the undertakings in paragraph 2 of this Article: (a) commit to agree upon, within the framework of relevant institutions, time-bound waivers of intellectual property rights to accelerate or scale up the manufacturing of pandemic-related products during a pandemic, to the extent necessary to increase the availability and adequacy of affordable pandemic-related products; (b) encourage all holders of patents related to the production of pandemic-related products to waive or manage, as appropriate, for a limited duration, the payment of royalties by developing country manufacturers on the use, during the pandemic, of their technology for the production of pandemic-related products, and shall require, as appropriate, those that have received public financing for the development of pandemic-related products to do so;….”
The provision also reiterates provisions in the TRIPS Agreement ensuring flexibilities: “(c) make use of the flexibilities provided in the Agreement on Trade-Related Aspects of Intellectual Property Rights (TRIPS Agreement), including those recognized in the Doha Declaration on the TRIPS Agreement and Public Health of 2001 and in Articles 27, 30 (including the research exception and the “Bolar” provision), 31 and 31bis of the TRIPS Agreement, and fully respect the use thereof by others…”
While some negotiators from developing countries feel that while these provisions are in the right direction to protect existing legal rules sanctioned by the TRIPS Agreement, they are also mindful that the real fight on these issues are at the WTO. And some feel, that the inclusion of this language has got to do more with the optics. “It seems they wanted to show that they have taken on board some of our suggestions, but we have to see whether it will continue to feature in the final agreement,” one developing country negotiator told us this week.
Some countries want tech transfer mechanisms that can be applicable within a bloc of countries.
“The EU, is for example, considering a pan-European compulsory licensing proposal. We could have something similar coded in the Pandemic Treaty,” a developing country diplomat suggested.
The dissonance between the EU’s proposal at the regional level, and its positions internationally in Geneva, is striking. However, it has been pointed out that proposals at the regional level are backed by political will from EU member states. “There is less political appetite to sign up to obligations imposed at an international level,” a person familiar with these discussions said.
Article 12. Access and benefit-sharing
The provisions on PABS put together the basics for such a multilateral mechanism, with the suggestion that “The Parties shall ensure that all components of the WHO PABS System are operational no later than 31 May 2025.”
Many developing countries had cautioned against such an approach, that they think amounts to a loss of leverage if a subsequent protocol will frame obligations on accessing information and sharing benefits. Experts told us this week; it may be possible to bind countries to working on such a protocol as soon as the Pandemic Agreement is adopted.
Some countries are disappointed that Standard Material Transfer Agreements (SMTA) to operationalize such a system, do not feature along with the negotiating text. Developing country negotiators argue that it is possible to come up with model SMTAs by May 2024 ensuring legal clarity of the mechanism.
The draft text suggests that countries should develop an allocation mechanism to ensure the fair and equitable allocation of pandemic’ related products. This is something many developing countries have called for, to make such a condition binding in a Pandemic Agreement.
The language calls for complementarity with the PIP framework. The text also emphasizes that the PABS should be “consistent with, supportive of, and does not run counter to, the objectives of the Convention on Biological Diversity and the Nagoya Protocol thereto. The WHO PABS System will provide certainty and legal clarity to the providers and users of WHO PABS Materials. The WHO PABS System shall be recognized as a specialized international access and benefit sharing instrument within the meaning of Article 4(4) of the Nagoya Protocol.”
Underlying Mechanism for PABS
The binding nature of a PABS mechanism is linked to the decision that countries will eventually make on the underlying legal provisions in the WHO Constitution [whether for example If PABS will be adopted as regulations as understood under Article 21 of the Constitution, similar to the IHR]
See Article 30 of the new draft: “Any Party may propose protocols to the WHO Pandemic Agreement. Such proposals will be considered by the Conference of the Parties. 2. The Conference of the Parties may adopt protocols to the WHO Pandemic Agreement. In adopting these protocols, every effort shall be made to reach consensus. If all efforts at consensus have been exhausted and no agreement has been reached, the protocol shall as a last resort be adopted by a three-quarters majority vote of the Parties present and voting at the session. For the purposes of this Article, Parties present and voting means Parties present and casting an affirmative or negative vote. In the event a protocol is proposed to be adopted under Article 21 of the WHO Constitution, it shall further be considered for adoption by the World Health Assembly”. (bold ours)
One developed country negotiator told us recently that “you can perform any legal innovation you want, but ultimately, if it is not politically feasible, it will not be supported.”
On PABS, the draft says [excerpts]:
“….2. The WHO PABS System shall ensure rapid, systematic, and timely sharing of WHO PABS Material, as well as, on an equal footing, timely, effective, predictable and equitable access to pandemic[1]related products, and other benefits, both monetary and non-monetary, based on public health risks and needs, to strengthen pandemic prevention, preparedness and response.
The features of the WHO PABS system are described as follows:
(a) WHO PABS Materials sharing:
i. Each Party, through its relevant public health authorities and authorized laboratories, shall, in a rapid, systematic and timely manner: (1) provide WHO PABS Material to a laboratory recognized or designated as part of an established WHO coordinated laboratory network; and (2) upload the genetic sequence of such WHO PABS Material to one or more publicly accessible database(s) of its choice, provided that the database has put in place an appropriate arrangement with respect to WHO PABS material.
ii. The WHO PABS System shall be consistent with international legal frameworks, notably those for the collection of patient specimens, material and data, and will promote findable, accessible, interoperable and reusable data available to all Parties.
iii. The Parties shall develop and use a standard material transfer agreement (a PABS SMTA), which may be concluded through electronic means, and which shall include relevant biosafety and biosecurity rules, to be used with the transfer of WHO PABS Material from a laboratory recognized or designated as part of an established WHO coordinated laboratory network to any Recipient. iv. Recipients of WHO PABS Material shall not seek to obtain any intellectual rights on WHO PABS Material.
(b) PABS multilateral benefit-sharing:
i. Benefits, both monetary and non-monetary, arising from access to WHO PABS Materials, shall be shared fairly and equitably, pursuant to a PABS SMTA, which may be concluded through electronic means.
ii. The PABS SMTAs shall include, but not be limited to, the following monetary and non-monetary benefit-sharing obligations:
1. in the event of a pandemic, real-time ac m,./cess by WHO to a minimum of 20% (10% as a donation and 10% at affordable prices to WHO) of the production of safe, efficacious and effective pandemic-related products for distribution based on public health risk and need, with the understanding that each Party which has manufacturing facilities that produce pandemic-related products in its jurisdiction shall take all necessary steps to facilitate the export of such pandemic-related products, in accordance with timetables to be agreed between WHO and manufacturers; and
2. on an annual basis, contributions from Recipients, based on their nature and capacity, to the capacity development fund of the sustainable funding mechanism established in Article 20.
(c) The Parties shall also consider additional benefit-sharing options, including:
i. encouragement of manufacturers from developed countries to collaborate with manufacturers from developing countries through WHO initiatives to transfer technology and know-how and strengthen capacities for the timely scale-up of production of pandemic-related products;
ii. tiered-pricing or other cost-related arrangements such as no loss/no profit arrangements, for purchase of pandemic-related products, that consider the income level of countries; and
iii. encouragement of laboratories in the WHO coordinated laboratory network to actively seek the participation of scientists from developing countries in scientific projects associated with research on WHO PABS Materials.
5. In the event that pandemic-related products are produced by a manufacturer that does not have a PABS SMTA under the WHO PABS System, it shall be understood that the production of pandemic-related products requiring the use of WHO PABS Materials, implies the use of the WHO PABS System.
Accordingly, each Party, with respect to such a manufacturer operating within its jurisdiction, shall take all appropriate steps, in accordance with its relevant laws and circumstances, to require such a manufacturer to provide benefits in accordance with paragraph 4(b)(ii) of this Article.”
Article 13. Global Supply Chain and Logistics
According to the draft, the Conference of Parties will work the modalities of a supply chain network. The text suggests a deadline of 31 May 2025.
The article on WHO Global Supply Chain and Logistics Network (the WHO SCL Network) is tasked with:
“(a) estimating, or where possible determining, the most likely types and size/volume of products needed for robust pandemic prevention, preparedness and response, including the costs and logistics for establishing and maintaining strategic stockpiles of such products; (b) assessing the anticipated demand for, mapping the sources of, and maintaining a dashboard of manufacturers and suppliers, including surge capacities and relevant necessary raw materials for, the sustainable production of pandemic-related products; (c) identifying the most efficient multilateral and regional purchasing mechanisms, including pooled mechanisms; (d) working with national authorities to establish and maintain national and/or regional stockpiles of various pandemic response-related products, as well as maintaining the relevant logistical capacities and assessing them at regular intervals, and specifying the criteria to ensure that stockpiling is used only to address public health needs; (e) facilitating the negotiation and agreement of advance purchase commitments and procurement contracts for pandemic-related products; (f) promoting transparency in cost, pricing and all other relevant contractual terms along the supply chain; (g) coordinating to avoid competition for resources among procuring entities, including regional organizations and/or mechanisms; (h) mapping existing, and identifying needed, delivery and distribution options; (i) establishing or operationalizing, as appropriate, international or regional stockpiles, consolidation hubs and staging areas; (j) assisting buying countries in meeting the logistical requirements for the utilization of specific pandemic-related products; and (k) facilitating or, as necessary, organizing the efficient delivery and appropriate utilization of pandemic-related products in beneficiary countries or in humanitarian settings.”
There are also provisions to reduce wastage, secure donations and on transparency of the terms of government-funded purchase agreements for pandemic-related products. However, the text does not make it mandatory to exclude confidentiality provisions that were used against governments both rich and poor during COVID-19.
There is also language on trade measures that they be targeted, proportionate, transparent and temporary, without creating unnecessary barriers to trade or unnecessary disruptions in supply chains.
Article 15. Compensation and liability management
An article on compensation and liability suggests developing national strategies for managing liability risks in its territory regarding the manufacture, distribution, administration and use of the novel vaccines developed for response to pandemics. It foresees developing model contract provisions, vaccine injury compensation mechanisms, insurance mechanisms, policy frameworks and principles for the negotiation of procurement agreements among other strategies. It wants the Conference of the Parties “to establish, within two years of the entry into force of the WHO Pandemic Agreement, using existing relevant models as a reference, no-fault vaccine injury compensation mechanism(s), with the aim of promoting access to financial remedy for individuals experiencing serious adverse events resulting from pandemic vaccine, as well as more generally promoting pandemic vaccine acceptance.”
On indemnity issues, that put many governments on the backfoot during COVID-19, the draft says, “Each Party shall endeavour to ensure that in contracts for the supply or purchase of novel pandemic vaccines, buyer/recipient indemnity clauses, if any, are exceptionally provided, and are time-bound.”
Article 20. Financing
The article on financing envisages commitments on sustainable financing for strengthening pandemic prevention, preparedness and response. The draft calls for a sustainable funding mechanism to be established by the Conference of the Parties, no later than 31 December 2026.
The mechanism as described includes a capacity development fund to be resourced from annual monetary contributions by Parties to the WHO Pandemic Agreement, voluntary contributions; monetary contributions from companies in the PABS system under Article 12.
An endowment fund is also envisioned sourced from “voluntary monetary contributions from all relevant sectors that benefit from international work to strengthen pandemic prevention, preparedness and response; and ii. donations from philanthropic organizations, foundations and other voluntary monetary contributions.”
“(c) The funding mechanism will provide resources to assist Parties, in particular developing countries, in meeting their obligations under the WHO Pandemic Agreement and related activities for pandemic prevention, preparedness and response.”
One developed country negotiator told us that having adequate financing mechanisms will be one way to get developing countries on board to agree to wider trade-offs in these negotiations.
Governance
The final chapter describes institutional arrangements including provisions on setting up a Conference of Parties, protocols, ratification and settlement of disputes. Countries will decide on what parts of the agreement will be under Article 19 (opt-in arrangements) and what provisions can be under Article 21 (opt-out) provisions under the WHO Constitution.
RESPONSE FROM INDUSTRY
The industry has criticised the draft and sees it as a threat to innovation. In a statement the industry said:
“As the body representing the global innovative pharmaceutical industry in official relations with the United Nations, IFPMA has issued the following statement in response. It warns that the current proposed text does not preserve what went well for this pandemic and will slow down efforts to improve equity by having a chilling effect on the innovation pipeline for medical countermeasures. As it stands now, the world would be better served with no agreement on the current, damaging treaty text. In short, no treaty is better than a bad treaty….
The current proposals are likely to delay access to the pathogens that scientists need to rapidly carry out research at the outbreak of a future pandemic. This delay will have a chilling effect on our ability to ensure vaccines and treatments can be rapidly available. The proposed treaty text would also lead to a weaker pipeline of vaccines and treatments for diseases with pandemic potential, as there will be a clear lack of incentives for pharmaceutical companies that were so vital to the development of new vaccines and treatments in response to COVID-19 at record speed and record scales, to invest in the research and development we will need….”
THE PROCESS
Some developing countries questioned why the draft had not reflected some of the proposals from countries as articulated by co-facilitators. “These proposals had broad support, and yet this did not feature in the draft. It seems to us there is an exclusive drafting group within the INB Bureau,” one developing country negotiator told us.
A number of diplomats alluded to pressure from different stakeholders including the industry, on the Bureau. We were unable to confirm this. In response to our query, Roland Driece, one of the co-chairs of the Bureau denied any pressure from the industry.
“There has been no industry pressure on the bureau. At the same time, we have heard the voice of industry through the inputs of member states, which we have taken into account. But that counts for all issues,” he told Geneva Health Files.
He added that while many would feel that their, or the co-facilitators’ inputs have not adequately been reflected, we feel this version finds a pretty fair balance between all inputs provided - inputs which often contradicted each other….Let the negotiations commence.”
WHAT’S NEXT
Countries are getting into a huddle this week. What will be critical is how they strategize the way forward. Countries hope that they will be able to add text (drawing from the compilation text) to strengthen the new draft, in order to make it negotiations-ready, some diplomats said.
First whether they will accept this draft as the basis for negotiations. Several diplomats indicated that all eyes are now on the Africa Group to lead how developing countries will respond to the new draft. The Africa Group has been one of the most active negotiating blocs on key equity matters, alongside big countries such as Brazil and China. The equity group of 19 countries is meeting later this week. Next week on October 26, the Bureau will be presenting the draft to member states and non-state actors.
There is pressure to accept this draft as the basis for negotiations, given the ticking clock and the looming deadline of May 2024. “No one wants to bell the cat, we have to see if countries will decide against accepting this draft as the basis for negotiations.”
One of the key reasons for urgency is the world has to be better prepared, that political attention is shifting and yet for some of the most challenging and urgent issues, including, PABS, an allocation mechanism for products, for supply chain issues, financing, compensation and liability issues, the Conference of Parties will carry forward some of these critical areas over the next couple of years, according to the draft. So where is the stated urgency currently driving these discussions, diplomats questioned.
It is clearly politically expedient both for countries and for WHO leadership to be seen as meeting the May 2024 deadline. But without strong binding provisions, status quo on these tricky issues will remain and cripple response to health emergencies.
As things stand now, you could envision potentially having two instruments (IHR and the new Agreement) both focused on prevention, and not enough on response. Also recall, that in the IHR discussions, some countries resisted discussing equity provisions since these are being addressed in the INB. (See our recent update on IHR: Push to Prioritize Prevention Over Response in the Negotiations to Amend the IHR, Developing Countries Dig Their Heels To Preserve Equity Proposals)
Developing countries could likely loose on both fronts despite pushing for binding equity proposals in both these tracks. “We do not seem to have a lot of leverage now”, a developing country diplomat said.
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