Pandemic Agreement Talks “Difficult” Amidst Polarisation, Pressure Builds for a "Lite" Accord by May 2024 sans Contentious Provisions [INB7 Update]
Newsletter Edition #59 [Treaty Talks]
In today’s edition we bring you the state of play in the discussions towards a new Pandemic Agreement, where countries are tackling the toughest issues in global health in the shortest possible time.
The process could take two paths, a shorter, easier one that might lead to the final deadline in May 2024, albeit without much change in status quo. A second, more challenging one, with a longer timeline, but one that might lead to few but potentially significant changes in the governance of health emergencies particularly for response measures. It is beginning to appear that political expediency could very likely push the first approach.
We were told this week that our previously reported story has worsened polarisation in already contentious negotiations. To be sure, countries have been polarised on many intractable issues, alongside distrust sowed by multiple factors from geopolitics, two ongoing wars, vaccine inequity, and other considerations.
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Watch out in the coming days on our report on the IHR deliberations that also took place in Geneva this week.
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I. STORY OF THE WEEK
Pandemic Agreement Talks “Difficult” Amidst Polarisation, Pressure for an ‘Accord-Lite’ by May 2024 sans Contentious Provisions
Nishant Sirohi contributed to this story.
Divergences on key issues continued to make it difficult to bridge the gap in positions among countries at WHO this week at the resumed session of the Intergovernmental Negotiating Body set up to establish a new Pandemic Agreement. Countries consulted among each other on some of these issues this week including on sustainable production, tech transfer, pathogen access and the sharing of benefits, and financing to ensure implementation of potential new obligations, among many other areas.
With effectively five months to spare, and an enormous gulf to close, increasingly many delegates privately questioned the possibility of concluding negotiations by May 2024 unless countries agree towards a narrow aspirations-based accord that more or less keeps the status quo.
The push for a “lowest-common-denominator” of an agreement is ever higher as countries want to show progress and capitalise on a diminishing political moment to conclude treaty-making at the WHO in the aftermath of the COVID-19 pandemic.
Negotiations did not commence this week, but countries continued to consult in subgroups focussed on certain provisions, under the aegis of a formal drafting group of the INB. For the past few weeks, countries have held these discussions with the aid of co-facilitators and vice chairs of the INB.
During much of this week, we spoke with diplomats from about a dozen countries, experts and other stakeholders involved in these discussions – for this story.
THE INB RESUMED SESSION: December 4-6
THE STATUS OF THE NEGOTIATING TEXT
During the previous session of the INB meeting in November, countries decided to add their original proposals to the proposed Negotiating Text presented by the Bureau. So, while the Bureau had communicated that its proposed text will be the default text pending consensus in the deliberations in the subgroups, countries across the board do not find this acceptable. “This is a member state-led process. We will not accept the Bureau’s proposed negotiating text as the basis,” a developing country diplomat said. “Even if our proposals are not on screen in the Bureau’s proposed ‘default’ negotiating text they are in the ether! We will do negotiations based on our proposals,” the diplomat added.
WHAT WAS DISCUSSED
During the meeting, the following provisions were discussed in subgroups Articles 19 and 20, Articles 4, 5 and 6, Articles 10 and 11 and 13. Other articles that were discussed included Article 12, Articles 8, 9 among other provisions. Each of the four subgroups established earlier are being led by vice-chairs and co-facilitators.
The subgroup on Articles 4, 5 and 6 of the proposal for negotiating text, is being chaired by Ambassador Honsei Kozo [Japan] and co-facilitated by India, the UK, Tanzania.
The subgroup on Articles 10, 11 and 13 is chaired by Ambassador Amr Ramadan [Egypt] and co-facilitated by Indonesia, the Philippines and the U.S.
The subgroup on Article 12 is chaired by Viroj Tangcharoensathien of Thailand, and co-facilitated by Australia, Ethiopia and Norway.
The subgroup on Articles 19 and 20 is chaired by Ambassador Tovar da Silva Nunes [Brazil] and co-facilitated by Canada, Malaysia and South Africa.
THE WAY FORWARD
At the close of the meeting the INB decided that countries will continue to meet in informal sessions led by the Bureau Vice Chairs and the subgroup co-facilitators. In a report discussed during the close of the meeting, it was decided: “…with a view to producing text of their respective subgroup’s Article(s) by 15 January 2024 for the consideration of the INB at its eighth meeting, on the continued understanding that nothing is agreed until everything is agreed”. It is also expected that the Bureau will also hold informal interactive briefing session with stakeholders.
On areas outside of those discussed in the subgroups, countries decided that the Bureau would “provide further refined textual proposals, as appropriate, for those articles which the Bureau is of the view that progress will be best made during the period leading up to the eighth meeting of the INB. Such refined textual proposals will take into consideration input received from the drafting group to date, as appropriate.” It is understood that some countries may volunteer to support the Bureau in this process to ensure greater legitimacy from member states on the next iteration of the negotiating text.
A point of contention arose around the participation of stakeholders and experts during the closure of the meeting. Ethiopia's intervention highlighted the need for clarity and consensus on this issue, underscoring the importance of inclusive and transparent negotiation processes.
Nigeria, emphasising the importance of 'official informal' meetings, stated: "It will be useful if the Bureau and the Secretariat set time for further discussions... we are getting a lot of understanding as we interface."
It is difficult to appreciate the real logistical constraints in organizing additional opportunities for informal consultations for one of the toughest, and the most significant treaty negotiations in global health. (Lack of space or rooms, were often cited as reasons even during the TRIPS Waiver negotiations at the WTO.)
The two marathon negotiating sessions are scheduled on the following days next year: at the eighth meeting of the INB during 19 February to 1 March 2024, and the ninth meeting of the INB during 18 – 28 March 2024.
ON THE PROVISIONS:
THE PABS PUZZLE
Pathogen access and benefits sharing has emerged as the central piece in these negotiations, according a range of diplomatic sources across countries.
So, while there is recognition on the importance of PABS, there continues to be divergence on what such a mechanism should look like.
“In principle, developed countries agree on the importance of PABS, but positions differ on what benefits should be, how should governance of such a mechanism be structured among other key questions,” an observer tracking these discussions told us this week.
The EU is working on its proposal for ABS, pending consensus among its member states on the way forward on this provision, it is learned.
It is understood that the U.S. had bilateral discussions with key blocs including with the members of the Africa Group and the Equity Group this week, along the sidelines of the INB meeting. (In their formal response to our queries last week, the U.S. has framed these discussions with a security lens. See here.)
One developed country negotiator urged caution with respect to the ABS mechanism, “We do not want to sign up to a system that we may regret in 2 years’ time. We have to be cautious and ensure that it works for all manufacturers big and small. The system should not disincentivize small firms who played a role during the previous pandemic.” Even if there is a small risk of disincentivizing producers, countries have to tread carefully in framing these provisions, the negotiator added.
But the structural factors for enabling R&D, lie beyond the PABS system, and elsewhere in a proposed Pandemic Agreement, including in the provisions on production, tech transfer and supply chain, others point out.
The ABS mechanism is being seen as a significant step in the “long journey” of addressing issues of access. Some point out to the emergence of the GISRS system as a key turning point. And therefore, the opportunity of defining an ABS system for health is a decisive step for all countries.
We also learned that countries including Brazil are proposing a wider system of ABS. Some countries believe that “there can be no free lunches” and that there should be a clear price to access biological samples. There is always “a cost” to developing countries in providing such information, a PABS expert affiliated with a delegation told us this week.
“It is critical to link the obligation of access to information to the obligation of sharing of benefits in a pandemic agreement. It will be decisive,” a senior diplomat from a developing country said.
Ultimately, the proponents of PABS, want to devise a mechanism attractive enough that manufacturers cannot walk away from. For countries like the U.S. home to the biggest originator companies, commercial considerations could trump security considerations, some observers were of the view.
But any resolution on this is a long way off. Some countries including Japan, are raising fundamental questions whether genetic sequence data can be treated as PABS material as described in the proposed negotiating text.
There are also efforts to suggest that key questions including on the status of genetic sequence data (GSD) and the criteria of assigning PABS as a specialized international instrument – should be dealt with under the Convention of Biological Diversity. (See recent guest essay here: Pathogen Access & Benefit Sharing System: A Key to Operationalize Equity in Pandemic Preparedness & Response)
Linking Surveillance to PABS?
Another emerging issue is potentially how surveillance information shared with countries, can be linked to PABS. Surveillance related measures are discussed in Articles 4,5,6.
“Are we supposed share information on multiple levels, without discussing benefits?” one developing country negotiator raised the question.
So far, the PABS system has been articulated as sharing information pathogen samples, in return for the access to medical products developed using such biological information, to put it simplistically. Blocs such as Africa Group have suggested linking benefits-sharing to One Health obligations.
So, whether countries will be able to “negotiate” benefits out of sharing surveillance information, will also need to be addressed in the coming months.
With every passing week, such trade-offs will become ever more important as countries weigh their interests against the cost of implementing new obligations.
And yet, there is not much clarity on what financing can look like. This week countries continued to discuss potential financing arrangements. Largely developed countries are not in favor of instituting another new mechanism given the Pandemic Fund, where many of them are donors. The ask from some developing countries is a WHO-affiliated financing arrangement with a wider representation from countries, so as to reflect their priorities on the ground, instead of being determined by a small group of donor countries.
Discussions this week indicated the need for a “coordination mechanism” that maps existing financing arrangements, assesses the current gaps in financing and charts a way forward. Countries want to also discuss existing domestic financing on PPR.
“Without a clear understanding on financing, we will not be signing up for additional obligations. Look at the climate discussions, countries asked for $100 billion a year. We need to be specific about this for PPR as well,” a developing country negotiator explained to us this week.
Yet others want all countries to pay up for PPR. “Every country should be paying for PPR, not just the donors”, a developed country health official said.
(These considerations mirror the discussions on sustainable financing for WHO, where countries were reluctant to pay up more for securing finances for WHO, although initial commitments on increasing assessed contributions were approved.)
Apart from these issues that are central to these negotiations, countries continue to grapple with key issues on sustainable production, tech transfer and supply chain matters – all of which were pain points during the COVID-19 pandemic.
As discussions get serious, interests emerge more clearly, sources said. While local manufacturing has become a catch-all phrase, more countries are raising questions on whether every country needs to have capacity to produce. It is understood that large emerging economies including China, are also asking if production should feature in every geographical area. (See our recent essay on challenges in local production here.)
And yet, for many countries preparing for self-reliance during health emergencies is a priority. A greater priority for some over others. For example, tech transfer to enable local production is a strong interest for some of the Latin American countries with existing capacity.
There are also efforts to link support for manufacturers with the principle of Common but Differentiated Responsibilities. (This principle was knocked off by the Bureau in the last iteration of the text, but developing countries are determined to push it back on to the negotiating table)
(See also from Gavi- The Vaccine Alliance this week: More than US$ 1.8 billion in support for African vaccine manufacturing, catching up missed children and pandemic preparedness approved as Gavi Board steps up efforts to tackle backsliding and fight health emergencies)
Member states also discussed text on surveillance measures (Art.4,5,6), including proposals to streamline (Latin America), make bolder (EU, the UK & others), make weaker (many developing countries). While the EU and others, push for integrated surveillance, developing countries are cautious about using a “standardised” approach on One Health related matters given the diverse national contexts.
“We simply do not have the capacity now to link animal related surveillance to the systems on human health. We need to understand this better. Commitments on biodiversity cannot be standardised. These have to be shaped by national contexts,” a developing country negotiator told us.
Surveillance and gathering intelligence on these issues is a priority for developed countries. Already systems have been put in place to receive such information of commercial significance including Germany-based WHO Hub for Pandemic and Epidemic Intelligence , and Switzerland-based WHO BioHub, the International Pathogen Surveillance System among others.
Countries are increasingly nervous about concluding complex negotiations in 22 odd days left till May 2024. To be sure this is a spectacularly complex negotiation straddling multiple disciplines and having interface with a range of UN organizations including the WTO, WIPO, OIE, other UN treaties and with the work of the multilateral development banks.
Many delegates say that it is simply not possible to do so, unless this whole exercise is whittled down to a mere aspirations-based document just a few pages in length, with subsequent protocols to be negotiated in a time-bound manner.
“We cannot have too much detail in an agreement. It cannot be too prescriptive,” a developing country diplomat from Asia told us.
Some developed countries also agree, that not too much can be baked into a new treaty. However, for meaningful commitments, there should be sufficient detail to hold countries accountable to their obligations in a legally binding document, legal experts familiar with multilateral negotiations say.
The key question is also under what legal provision of the WHO Constitution this agreement will be adopted. The choice of Article 19, that will ensure that this will be a binding agreement, has been the stated stance of blocs such as the EU.
The U.S. is reportedly not in favor of adoption under Article 19, ostensibly because its domestic political system makes it harder for it to sign up to international agreements. However, legal experts say that there are ways for making this work, if this agreement is adopted under say Article 21 of the WHO Constitution. (See our previous stories, where we have discussed this at length.)
But what is also emerging is that, the choice of the legal provision, will follow, the decision by member states on how strong and ambitious, or how weak they want a new instrument to be. [Also see Art.30 of the proposed Negotiating Text)
Diplomats caution, that having an agreement with many qualifiers will render a new agreement ineffective without changing status quo. And yet, if more countries must sign up, then such an agreement must fly politically for it to have any traction.
This brings up the question of governance – that has not been discussed adequately over the last three years.
While a Conference of Parties has been suggested by some blocs and stakeholders, not all countries see the usefulness of it. Some suggest a new Committee under the World Health Assembly called Committee E, that could be home to both IHR state parties, and to potential new signatories of a Pandemic Agreement. There is no clarity yet, on how member states will eventually resolve this.
The process itself continues to be difficult. The political commitment in some countries is already beginning to fray. Reportedly, there is some reflection among original treaty-proponents that “the treaty project was a miscalculation and a misconception”, one diplomatic source told us this week.
So many expect that the amendments to the IHR will assume greater significance in the event that the interest in the treaty fades away if intractable challenges are not addressed effectively in a way that reaches consensus.
Yet, for many developing countries, the task is cut out. They see working on different provisions and bringing it together so that it makes sense in the instrument as a whole.
“There are many ways to cut a cake, but the ingredients are the same. While some countries are focused on structure and the logic, others are more focused on the content,” a developed country negotiator told us.
There is some positive momentum built on a streamlined process of consultation, and some countries look forward to the marathon negotiations next year that are being seen as “the real deal”.
Others are less optimistic about bridging the distance. “For some countries failure may be the preferable option, if they do not get what they want,” a senior developing country diplomat told us.
“It is important that countries make the effort to move away from maximalist positions if they want to make progress,” a Latin American negotiator told us.
Sources told Geneva Health Files, that the sudden departure of a key negotiator of the Africa Group that we reported on last week, was widely discussed informally. The allegation that the said diplomat was moved back to the capital under pressure from some developed countries, is understood to have further polarised countries, diplomatic sources told us this week. And yet, there was no formal mention of this incident at the INB. For many countries, this is being seen as “an internal matter of Namibia.”
While many developing country negotiators said that this alleged incident will have no chilling effect on their positions or willingness to negotiate, some are apprehensive, as these discussions reach a critical juncture and the stakes get higher.
“We are keen on diversifying and strategizing with whatever resources we have,” a key developing country negotiator told us this week.
Sources familiar with these dynamics say that the Equity Group is not as well coordinated as the Africa Group. And that greater coordination will be needed among these two blocs of countries, as they often present joint proposals together.
SOLIDARITY, WHAT SOLIDARITY?
Meanwhile, during discussions this week, diplomatic sources told us that the U.S. asserted that there was no legally agreed definition of solidarity, while discussing Article 3 of the proposed negotiating text on principles. It is understood that it had reservation against this language:
“Solidarity – Effective national, international, multilateral, bilateral and multisectoral collaboration, coordination and cooperation to achieve the common interest of a safer, fairer, more equitable and better prepared world to prevent, respond to and recover from pandemics.”
This has echoes here from 2022: Human Rights Council heats up during informal talks on inequality, international solidarity, and intellectual property by KEI.
The week continued with the discussions on amending the IHR. Many countries are determined to make progress on the INB, in conjunction with the negotiations on the amendments to the IHR. Watch this space for more.
Also from us in the past few weeks:
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