Renewed Push for A December Deadline To Conclude The Pandemic Agreement

Newsletter Edition #109 [Treaty Talks]

Hi,

As an agnostic, I have always been amused by the proverb: “Man Proposes, God Disposes”. Somehow it seems fitting while writing about global health negotiations.

At least theoretically, Gods in global health are member states, at whose table the buck stops. But Man will make efforts to propose, as is his wont.

In our News Flash today, we bring you an update on the goings-on at WHO on the Pandemic Agreement.

There is now a renewed push to see whether countries can conclude the Pandemic Treaty Talks in under eight weeks from now.

In this edition, we bring you the various factors at play that are weighing down, and shaping these discussions. So while many countries, and other stakeholders are sceptical about an unrealistic December deadline, nevertheless efforts are now on to see if this will be possible at all.

We report what we see, and we hold judgement on the final outcome of these efforts. International negotiations are notoriously difficult to predict, particularly one with such strong political motivations.

Thank you for reading.  

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Until later!

Priti

Feel free to write to us: patnaik.reporting@gmail.com, Follow us on X: @filesgeneva

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Illustration Credit: Amy Clarke, Chembe Collaborative

I. NEWS FLASH

Renewed Push for A December Deadline To Conclude The Pandemic Agreement

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Key actors in the negotiations on a new Pandemic Agreement are making vigorous and renewed efforts to see if countries can reach consensus and conclude these discussions in December 2024. Some of these actors reportedly include the Bureau of the Intergovernmental Negotiating Body set up in 2021 to establish this agreement, the World Health Organization led by Director General Tedros Adhanom Ghebreyesus, diplomatic sources in Geneva say. In addition, WHO member states including the Africa Group, among others, have been keen on concluding these negotiations this year. The Africa Group is reportedly discussing options this week at a retreat in Johannesburg, South Africa.

Sources indicated that contingency plans are being made to prepare for a special session of the World Health Assembly for a two-day meeting potentially during December 18^th-20^th in order to adopt the Pandemic Agreement if consensus is reached. (These dates will first need to be determined by the Executive Board of the WHO.)  

Recall that when member states were unable to meet the deadline of May 2024, the World Health Assembly then decided to grant additional time for the process. (See OP1: (1) to extend the mandate of the INB to finish its work as soon as possible, and submit its outcome for consideration by the Seventy-eighth World Health Assembly in 2025, or earlier by a special session of the World Health Assembly, if possible, in 2024 with only one agenda item dedicated to this outcome;)

So, in effect, countries do have time until May 2025.

But the push to conclude the discussions by December is being triggered not only by political motivations to clinch a deal on these negotiations at the earliest, but also by the American Presidential elections scheduled for November 5, 2024, sources told Geneva Health Files.

The INB is scheduled to meet at its next formal meeting during November 4^th-15^th. And as per procedures, countries will need to decide by November 12^th whether a special session needs to be called.  

THE TRIGGERS: AMERICAN ELECTIONS, DISINFORMATION AND GEOPOLITICS

The consequences for WHO in relation to the American elections can be decisive. The reason American elections can have implications for WHO, is not just monetary, but can have an impact on other areas of its programmatic work. (During his stint in office at the height of the COVID-19 pandemic in 2020, Donald Trump, the Republican candidate now within striking distance of being elected again, had announced that the U.S. would withdraw from the WHO.)

Some member states are already discounting American ratification of a potential Pandemic Agreement irrespective of who gets elected. And yet, there is an expectation that securing a deal on these negotiations in the final weeks of the Biden administration during 2024 could prove to be decisive. “We still have November and December to get a deal, before the new American President, whoever it may be, takes office in January 2025,” a Geneva-based negotiator said. In the event of a win for Kamala Harris, the new administration would secure the commitments on these negotiations further, sources believe.

In addition, some also fear that a Trump win in the U.S., would dissipate political momentum for the Pandemic Agreement, and could empower other right-wing governments in Europe and elsewhere, to weaken the drive to reach consensus towards such an instrument. These negotiations have suffered attacks from anti-treaty and anti-science campaigners often with deep political connections among right-wing groups.

Finally, worsening geopolitical climate could also impact the commitment to these negotiations, others fear.

(We argued recently that given tremendous commercial interest in the Pandemic Agreement, a loss of political momentum could be an unwarranted assumption.)

Despite these and other pressures, the fundamental question will be if countries will indeed to be able to converge on their positions on key provisions in a matter of days. After all, these discussions have gone on for three years now.

One approach, sources say, is to make as much progress as possible in the coming weeks, and leave only the most contentious elements in brackets, for the ministers to negotiate and settle. An additional meeting of the INB is envisaged in December just ahead of a potential special session sources said. (But many delegations do not trust their ministers, some of whom may not have been involved in these negotiations as much as the technical teams have been.)

Some hope for a conclusion in December and then to immediately begin negotiations on pending elements including on PABS, in an Intergovernmental Working Group (IGWG) process starting January 2025.

WHAT’S PENDING? [Quite a lot]

Experts have identified more than 100 paragraphs in the current text that need to be decided.

Some of the key disagreements include, a new prevention instrument (Art.4), conditions for transfer of technology (Art.11), fundamental elements of the Pathogen Access and Benefits Sharing Mechanism (Art.12), language on compensation and liability (Art. 13), language on harmonization in the context of regulatory capacities (Art.14), financing (Art. 20), among others. (See our detailed update on these from INB12)

Countries will also need to agree on the legal provision underpinning the instrument as under Article 19 of the WHO Constitution, and on the legal status for the future streams of work including on PABS. (See our previous story weighing on Art 21 vs Art 19)  

Sources told us that agreement on a prevention instrument could prove to be decisive for the path towards consensus. But the biggest and the smallest developing countries have been against additional, and wider obligations on prevention elements that they view as going beyond health-related measures.

During the informal sessions these past few days in October 2024, some countries believe that delegations were inching closer to bridging differences on the PABS mechanism.

Key areas of divergences have included agreement for legally binding contracts linking information and benefits; on traceability of users of information; commitments to percentages of real-time production; linking PABS measures to Public Health Emergency of International Concerns going beyond pandemics; legal nature of the mechanism as being administered by WHO, among others. For developed countries setting conditions on the access to information is not acceptable. As hosts to the biggest pharmaceutical companies, these countries worry that conditional access will have a chilling effect on innovation.

There are a plethora of other issues including the nature of information (digital sequence information), legal status of the PABS mechanism in relation to prevailing national laws that govern Access and Benefits Sharing, among other matters.

While one of the most contentious elements remain around IP issues in particular over technology transfer, sources suggested some of the impasse could be addressed using text and footnotes. But whether this would amount to compromise, or would worsen the status quo, as some stakeholders fear, will remain to be seen.

(See our previous story: The Contested Space of Intellectual Property Rules in a Pandemic Agreement: Terms of Technology Transfer & the Unease with the Peace Clause)

Finally, countries will have to iron out the processes and linkages to the amended International Health Regulations within this time frame. This will include agreeing on provisions on governance and financing.

ON DISTRUST

One of the biggest impediments on the way to consensus remains the distrust between countries. The next few weeks will show whether delegations can overcome their positions and strike compromises.   

A developing country negotiator told us that countries are in touch with capitals for a potential session in December. “We want to make sure we are ready, in case there is consensus,” one diplomat told us this week.

In two weeks time, it will become clear whether countries are able to, and if they are keen on conclude these negotiations in 2024. The race towards the lowest common denominator in a bid to wrap up these crucial negotiations has never been greater.

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