Tight Timelines & Tough Choices: Developing Countries Push Back on the Risk of Exclusion From Negotiations In Informal Sessions [Pandemic Accord Update From INB6]
Newsletter Edition #33 [Treaty Talks]
Hi,
This week The Guardian reported that it was the hottest week in 120,000 years. Apart from contending with the heat wave, diplomats in Geneva are also doing a temperature check of a different kind. Discussions at WHO are hotting up with two back-to-back meetings this month.
Today we bring you a first update from the on-going meeting of the INB. We will be following up with more stories in the coming days based on these fast-moving deliberations. Also watch out for our interview with the INB co-chairs later this week.
A big shout out to my reporting team: Tessa Jager in Geneva, Shoa Moosavi in D.C., and Nishant Sirohi in Goa. We are burning the midnight oil to bring you information and insights to keep pace with these discussions.
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Priti
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STORY OF THE WEEK
Tight Timelines & Tough Choices: Developing Countries Push Back on the Risk of Exclusion From Negotiations In Informal Sessions
[Pandemic Accord Update From INB6]
By Priti Patnaik with Tessa Jager and Shoa Moosavi
At the on-going sixth meeting of the Intergovernmental Negotiating Body [July 17-21], countries resumed their consideration of the Bureau’s Text, in addition to working during informal sessions in the evenings this week as they continued to circle around the meat of the instrument including research and development, provisions on supply chain, and access and benefit sharing mechanisms.
As before concerns around the process shaping these negotiations and the deeper substantive elements are fused together in a way that will determine the ultimate outcome of these crucial discussions not only for the Pandemic Accord, but also for the amendments to the International Health Regulations. Later this week, countries will tackle the inseparability of these two track negotiations, in a formal joint meeting - an important first one among many more, sources say. (We will come back to you with a separate story on the joint meeting next week.)
For this story we spoke to numerous diplomats on site at WHO, and with other experts and observers tracking these discussions in the run up to these July meetings. What we present to you is based on analysis and synthesis of public statements made by countries, in addition to putting these statements into context and the parse out the meanings they hold in this decisive phase of negotiations. We also share the insights presented by co-facilitators from the intersessional meetings. (Also watch out for our interview with the co-chairs of the INB later this week.)
INB 6 [JULY 17-21]
At a plenary meeting at the beginning of the week, a session that was webcast, the Bureau of the INB invited the countries who are co-facilitators on specific issues in the Pandemic Accord to share their insights on the intersessional proceedings over the last few weeks [Articles 9 (Research and development), 12 (Access and benefit-sharing) and 13 (Supply chain and logistics)]. Member states also presented their views on the informal sessions and their concerns around the process.
While in general many countries seem to suggest that the informal sessions have been useful to get a better picture of countries’ rationale on their positions on certain issues, a number of countries highlighted the risk of exclusion of smaller delegations in what could become fast-moving discussions in such intersessional formats. (See ours: Intersessional Consultations on the Pandemic Accord: Countries Wrestle On Thorny Issues, The Fight is on To Get Text In)
Countries including Armenia, Bangladesh, Fiji, Namibia, Kenya, Paraguay, the Africa Group, Russia, among others, expressed their discomfort with the format of informal sessions. This is even as many other countries saw the benefit of making progress in the discussions in an informal format, including the EU, New Zealand, Canada. (See excerpts from countries’ statements below)
PROCESS QUESTIONS
Concerns around process and the way forward dominated some of the discussions this week – negotiate on the basis of what and how. Some countries also made their preferences clear on what to negotiate – with an emphasis to continue discussing the tougher provisions. (Peru: “These provisions are the beating heart of the instrument”). A few member states including Monaco, the UK, and Brunei wanted a greater participation of experts in these discussions.
The proceedings at the public meeting seemed to suggest that although some countries emphasized the importance of the 200+ page compilation document, it was made clear that such a document containing all member state submissions is going not to be the basis for negotiation. INB Co-Chair Roland Driece made clear during the public session.
INB bureau officials also lamented that countries have been “holding cards too close to their chest”, also indicating insufficient trust at this stage of the discussions. They also said that the informal sessions had become too formal, and the way forward could include empowering co-facilitators of these informal sessions to make progress in the deliberations. (See more on this in the interview that will be published later this week.)
For many countries informal sessions put additional burden on already stretched schedules and multiple discussions. This affected their meaningful participation and ultimately impacts the inclusivity in these negotiations, they said. For example, South Africa said, “the Secretariat should assist to packed scheduling, to give delegations time to prepare for better and better participation, and to enable them to make substantive contribution and language proposals during the discussions.”
In his remarks during the plenary earlier this week, Driece said that the idea behind the informals is to find convergence and it is “not for forcing anybody into discussions they do not like”.
VIEWS ON PROCESS FROM CO-FACILITATORS
One of the co-facilitators of the informals (Norway) suggested the following during Monday’s plenary:
“Some Member States have expressed a preference not to negotiate in informal sessions, something we as co-facilitators agree with. At the same time, we hear from the Bureau of the need to progress informal discussions towards convergence. Within the understanding that the purpose of informal sessions is to help better reflect elements that Member States would like to have included in the Article. If Member States agree, based on their written input, written and oral input, co-facilitators could suggest changes to the text, such as streamlining, inclusion of non-opposed elements, and elimination of duplications. Co-facilitators could also propose options on proposals where we do not have alignment and where positions diverge. The text should then be brought back to the formal drafting group for further review and negotiations. But this would only be possible if Member States agree to the approach and are willing to mandate the co-facilitators accordingly.”
Similarly, co-facilitators Indonesia and Pakistan described the approaches they used to identify ways to structure provisions and to use the informals to make the provision negotiation-ready. (see more on this below)
COUNTRY STATEMENTS
We present below excerpts from countries’ statement reflecting their views on the informal process.
South Africa (on behalf of the 47 Member States of the Africa Region)
“…We also note the important role that the intersessional informal sessions played and provided a platform to further explain the submissions that we have made and other Member States have made, thus creating a platform for understanding the context and positions better.
…However, informal sessions should not be used for negotiation and a platform where delegations are competing for their submissions to the text, as this may put an intersessional process in a disadvantaged position. We note with appreciation that the informal sessions help us to start talking about important but complex articles that operationalize equity, solidarity, and inclusivity, which we hope they will, once we have finalized, assist us to move forward faster, as these are interlinked with other articles. The Africa Group will be comforted if these proposals are taken into consideration and reflected in the first round. We have noted, however, that some of the inputs made by the Africa Group through the 3 articles have not found articulation in the text.”
Nigeria
“….smaller delegations do not have the human resource to man all of this and make effective contribution. And that's the point about inclusive process. There should be a level playing ground for all parties to contribute maximally and, you know, be part of the process.”
Namibia
“...Co-chairs, having gone through this informal process during the intersessional period, it is Namibia's view that the INB later this week should consider how the proposals of Member States that have been omitted from the Bureau’s text, will be incorporated in this text, which is the document with formal status. We need a negotiating text which reflects Member States’ proposals. Once we have a negotiating document that we are all comfortable with, we can then continue discussions in informal or formal formats because once we have the text in the negotiating text, we can start discussions on making adjustments or compromises. As stated by South Africa on behalf of the 47 Member States, we are not comfortable with this process of having to fight to incorporate our proposals through the informal process.”
Fiji
“…While Fiji could not attend all the intersessionals, we appreciated the informal interactions and direct questions and answers within the sessions we did attend, as well as the valuable input of the WHO experts when requested. Mr. Co-chair, we further support the continuation of informal intersessionals going forward….
…We also urge further caution, as has been raised by others on the scheduling of the intersessionals, which may likely result in a lower level of participation by Member States with small delegations, particularly by their capitals, when compared to the drafting groups and INB. So, while the intersessionals may propel us with greater speed towards having the WHO CA+ before the WHA in May 2024, we run the risk of losing necessary representation and meaningful participation in the process. Therefore, the intersessionals should be seen as a useful method to enable better understanding and shifting negotiations forward. But the substantive negotiations must happen within the formal processes of the drafting group and the INB…”
China
“…With the negotiations of the INB entering into the deep-water area, we think we must put our energy on the major articles with major divergences, and we should input our energy and resources to facilitate or to promote the negotiations of these articles, to find feasible solutions, considering the time constraint. We hope that the Secretariat will formulate more effective, more focusing, and more coordinated arrangements on the agendas and the modalities of our meetings with regard to the outcomes of the informals. We think special and sufficient time and room should be allocated to these informals to identify whether or not we want to accept the amendments on the text. We hope that during our discussions the INB will broadly solicit and take up the opinions of Member States. And through our joint efforts, we will further identify the key elements of INB and the IHR, as well as reaching the consensus of our drafting and amendments.”
The UK
“…The UK is supportive of the intersessionals, as they have already helped us to make progress to inform our plenary discussions. There is, of course, much work to do to reach consensus, but it has been helpful to have genuine conversations on objectives, key issues and to understand each other's positions better. We should continue to build on the progress made, and with that in mind, we support continuing the informal discussions during INB6 and beyond. We would also support organizing additional co-facilitated informals on other articles.
On the question of whether we actually negotiate in the informal intersessionals, we agree that those informals are not the place for formal negotiations. But, as we have previously stated, we see huge value in the more flexible and responsive dialogue provided by the informals, and we do believe, in general, we should not impose constraints on what can or cannot be done during informals.
Technical input from the Secretariat and experts has been key. And thank you again to the Secretariat and experts for all that work. We are keen that this is maintained, and we should continue to see how we can bring in other voices into these conversations as appropriate and in the right way.
It is also important we ensure we deliver results from the informals given the timescales of finding an agreement by May 2024 so it would encourage deadlines for output from those discussions.”
Brunei
“As we begin to understand the various positions of other countries, it is also timely to take stock of our own. At this time, Member States may wish to start considering how far we are prepared to move from our original positions. By way of example, one key area we have noted that repeatedly comes up in the various informals is in the use of language.
Here we see two approaches emerge. There are some Member States who are keen to ensure implementability of the text and hence the use of less binding, more aspirational texts which reflects the current realities, but necessarily limiting the scope of the agreement.
On the other hand, a number of other Member States have been more ambitious with the call for clearer binding language that genuinely changes the current status quo.
How we bridge this aspect and how we give and take on this issue is crucial if we are to move forward on to more contentious articles. It could be that the answer may lie somewhere in the middle….”
The U.S.
“…We suggest laying out a process this week for ongoing work by the co-facilitators, further empowering them to convene additional discussions on their respective articles, and if possible, to develop draft texts to bring back to our next formal meetings. In this way, we can take strong collective steps under the guidance of the Bureau, to move from helpful, but still high-level discussions, to more specific line-by-line negotiations, and begin to build the first draft of the negotiating text together. We are supportive of the plan of work for this week, to continue to take forward the core articles discussed in June, while also preserving space for similarly rich discussions on the rest of the Bureau’s text, beginning with Article 15, including on developing frameworks for effective cooperation and partnerships, discussing innovative financing opportunities, tackling mis- and disinformation, and embracing our shared responsibility, while recognizing different capabilities among Member States...”
SUBSTANTIVE DISCUSSIONS: UPDATE FROM CO-FACILITATORS
When the co-facilitators of the informal sessions spoke at the plenary meeting earlier this week, it gave a rare glimpse into the behind-the-scenes processes in these discussions. It also illustrated the wide areas of divergence between member states and efforts to bridge these gaps by way such sessions.
Excerpts of statements made by co-facilitators on Monday, July 17, of three different informal sessions that also continued during this week.
Art. 9 of Bureau’s Text [R&D]: Mexico and Norway
This week’s informals on R&D was expected to address issues including R&D financed by Member States, biosafety and Article 4 on prevention, as an option to further streamline the R&D focus of Article 9, co-facilitators said. They also pushed for discussions with civil society on R&D matters.
Statement by Norway:
“We have presented a revised structure of the Article, without changing the content. And we’ve received written input from the EU, the African Group, Japan, Singapore, Malaysia, US, Norway and the UK and this input has been presented to delegations in a table for you to reference. However, delegations have highlighted that the written proposals need to be read in conjunction with the proposals in the compilation text. There seems to be agreement on the overall objectives of the Article. Mainly to support capacities for R&D, including through clinical trials, scientific collaboration, information sharing and transparency. However, many delegations have expressed a need for a more action-oriented Article, with clear commitments and more direct language.
But more discussions are needed on the balance between legally binding and aspirational language. There is a strong interest in issues related to capacity building, information sharing, transparency, and especially in providing more equitable and public-health oriented outcomes of research and development that is financed by Member States. But there is still a lack of converge on how to reflect this in the text….”
Art. 12 [ABS]: Australia and Ethiopia
The co-facilitators on the informal session on access and benefits sharing suggested ways forward in these discussions including potentially a compiled list of what different delegations have proposed as benefits to be shared; questions on aspects of possible systems or arrangements for access and benefit sharing; use of case-studies, or real-world examples to illustrate and assess how proposals could work in practice. It is also understood that some countries have sought discussions with stakeholders on this topic, including industry, research institutes, and other relevant actors on ABS issues.
Statement by co-facilitators informal discussion on Article 12 (Australia and Ethiopia)
Excerpts of Statement by Australia:
“As requested by the Bureau, the aim of the sessions was to facilitate the sharing of views on Article 12 and exploration using greater detail and depth, and we started by looking at the objective of the Article. There seem to be a good level of common understanding of the importance of equitable and timely access to benefits and of rapid access to pathogen samples and data, both during and between pandemics. We also heard a lot of recognition that these two objectives are mutually reinforcing, and that a multilateral approach has value to effectively achieve both objectives. Many were of the view that proposals reflected in the compilation document warranted further consideration and exploration, and that not all the elements were reflected yet in Article 12 of the Bureau’s text.
… In these initial exchanges, there was a strong appetite to focusing on what benefits could be shared, and how, so we requested specific inputs and comments on that for our third informal session. We had written inputs from five delegations, which were circulated to all, and had some very constructive exchanges between delegations, as well as valuable technical advice from WHO experts. Our sense is that the three informal sessions have improved delegations’ understanding of one another’s proposals and positions on access and benefit sharing, but really just scratch the surface of what needs to be discussed to reach a common understanding in terms of what kind of system or combination of arrangements could provide certainty and predictability on benefit sharing and on access to pathogens and data, and also on the interrelationships between Article 12 and other provisions….”
Also note what the US said on ABS at the plenary this week:
USA
“…We would like to reiterate at this time that our top priorities continue to be a pandemic accord that secures more rapid, transparent and accountable sharing of samples and data worldwide, builds a more equitable pandemic prevention, preparedness and response system, and strengthens Member States’ commitment and accountability on pandemic PPR. Equity and pandemic response first require prompt sharing of information, limiting disease spread, launching research, and creating new products and tools to be shared. This access must be paired with a strong, comprehensive benefit-sharing system, in which benefits will accrue to all parties and all participants in the agreement. We believe this accord must accomplish both.”
Art. 13 [Supply Chain]: Indonesia and Pakistan
The co-facilitators on supply chain and production issues shared their strategy on bringing countries together. The discussions focused on how this provision can be structured address matters of supply chain, production and an allocation mechanism. They indicated that efforts will be to have this article “ready for negotiation”.
Statement by co-facilitators informal discussion on Article 13 (Indonesia and Pakistan)
Indonesia
“As co-facilitators, we used a building-block approach in our process. In the first meeting, we identified the three-core building/core blocks of the Article, and we discussed them in great detail, which includes the title and chapeau, paragraph two with the three options, and the principles. The second meeting, we have heard presentations by four countries who have made written proposals on Article 13. And we had in-depth and constructive comments and discussion on these proposals, followed by a briefing by the Secretariat on the ACT-A and on COVAX processes….
…we have also found that the issue of production has been deemed to be an important element that some Member States have requested to be part of the scope/core of this Article, while others have found that the issue of production is better suited in other articles, such as Article 11, or as a separate, independent Article. We’ve also had listened to a proposal to split the Article into two parts: one on supply chain, and another one on an allocation mechanism. We’ve also heard, as I mentioned earlier, an in-depth discussion on the proposal made on a network of partnerships…
…further, there is also possibility of having a separate dedicated article on production, or whether it needs to be reflected as part of Article 11 or Article 13. Lastly, we’ve enjoyed general support from Member States on the paras related to the issue of general principles, except for the issue of transparency, where we still need further discussion on whether it is to be within this article or within separate articles.”
COUNTRY COALITIONS: A MESSY VENN DIAGRAM?
The on-going meeting also saw states in different configurations make joint statements. This demonstrates the mix of issues that draw support from countries across the board, it also defies any simple deductions about coalitions between blocs of countries at this stage of the negotiations. For example, Indonesia made a statement also on behalf of MIKTA countries: Mexico, Indonesia, South Korea, Turkey, and Australia.
(Note that the Equity group did not make a statement earlier this week)
See others here:
France on One Health
‘’I am very glad to be speaking today on behalf of the group of friends of one health: Australia, Egypt, Brunei Darussalam, Colombia, Denmark, European Union, Fiji, France, Germany, India, Indonesia, Kenya, Mexico, the Netherlands, New Zealand, Peru, the Republic of Korea, South Africa, Spain, Switzerland, the United Kingdom and the United States of America.
…During the last discussions, we focused on two crucial pillars of this agreement: preparedness and response. These two pillars are important in order to be able to face up the future pandemics. However, we must make sure not to disconnect them from the first pillar, which is prevention. Prevention is at the heart of the mandate that was given to us by the WHA during its second extraordinary session in December 2021. The group of friends of One Health would like to reaffirm the importance of preventing pandemics, as the first essential stage of reducing pandemic risk…”’
Brazil (on behalf of Argentina, Chili, Paraguay and Uruguay)
“We would like to highlight the importance of the position of the Ministries of Health of our region on the INB process, that was signed on the 23rd of June on Buenos Aires, Argentina. At the time, the Ministries of Health of the Mercosur region, including Chili, we affirm the strategic relevance of participating in all processes related to INB. They highlighted the importance that the text be better than previous versions, and that it enshrined general principles that are defended by Mercosur countries, such as the right to health, gender equality, and respect for intercultural diversity. The text of the instrument needs to reinforce equity and solidarity, laying out concrete measures, especially with respect to research and local production in developing countries. It was pointed out that the use of specific language that would take into consideration the concerns of our region, especially when it comes to IP and technology transfers, funding, governance, strengthening of national health authorities and identification of binding as well as non-binding clauses, exchanges of information, especially when it comes to biological data and the pursuant sharing of benefits…”
THE JOURNEY TO THE FIRST DRAFT
While the first draft of the Pandemic Accord at this point might look like a mirage, given the circular process that these discussions have so far been, in the coming weeks, the INB bureau is expected to chart a way ahead towards the first draft. In his interventions, Co-Chair Driece emphasized the importance of a good first draft, rather than a quick first draft.
As on today, no country has formally sought additional time to conclude the negotiations. The current timeline of May 2024 still stands, although INB Co-Chair Precious Matsoso reminded countries that there are 11 days of formal meetings in 2023 and another 20 days in 2024. Undoubtedly there will be scores of intersessionals in the coming months.
Countries such as Bangladesh, among other have been forceful interlocutors in putting pressure on the fairness of the negotiating process. In a statement made at the plenary, Bangladesh spoke about the importance of the first draft:
“We call for negotiating binding rules that institutionalize solidarity and equity helping to build more just systems that increase global preparedness and response to pandemics. We need to keep in mind that we have all the major elements in our compilation text. And while we appreciate the Bureau for their hard work to find the best texts in their proposal, certainly we have some observations on what missed out in crafting the text. And certainly, the compilation text should remain the basis and the elements should be included in the first draft.
…We need to actually have a good discussion on how we’re going to find the first draft. We have some kind of ambiguity at this stage, so after the discussion on the informal sessions is over, it would be expedient to have a discussion on that...
… it is important that we see our proposals well reflected in the first draft, because we need to create a background for having good negotiation during the coming months. If we enter into a negotiation prior to see our proposals rightly reflected in the first draft, that is not fair.”
60+ COUNTRIES SUPPORT INCLUSION OF CIVIL SOCIETY
In a significant statement, Chile on behalf of 62 countries called for an inclusive process to facilitate effective participation of civil society organizations including in the closed-door informal discussions. (See a post on this from Knowledge Ecology International).
Some of the countries include:
Group of Friends of the Treaty (Albania, Austria, Belgium, Chile, Costa Rica, Croatia, Cyprus, Denmark, Estonia, EU, Fiji, France, Germany, Greece, Iceland, Indonesia, Ireland, Italy, Kenya, Luxembourg, Malta, Moldova, Montenegro, Netherlands, Norway, Paraguay, Portugal, Republic of Korea, Romania, Rwanda, Senegal, Serbia, Slovakia, Slovenia, South Africa, Spain, Sweden, Thailand, Trinidad and Tobago, Tunisia, Turkey, Ukraine, United Kingdom)
Group of Friends of One Health (Australia, Belgium, Brunei, Canada, Colombia, Denmark, EU, Fiji, France, Germany, India, Indonesia, Kenya, Mexico, Netherlands, New Zealand, Peru, Republic of Korea, South Africa, Spain, Switzerland, UK, and US)
14 countries from LATAM (Bolivia, Brasil, Chile, Colombia, Costa Rica, Ecuador, El Salvador, Guatemala, Honduras, México, Panamá, Paraguay, Perú, Uruguay)
Excerpt:
“…In this regard, we commit to seeking more and better ways to interact with stakeholders to facilitate their contributions to the negotiation process. Including informal discussions between Member States and other stakeholders to allow for open and frank exchange of ideas, and working with the INB Bureau and the WHO Secretariat to consider ways to facilitate interactions and conversations between civil society and MS on WHO premises in the margins of INB meetings.”
WHAT’S NEXT:
In addition, during this week, countries made progress on considering several provisions of the Bureau’s Text including on financing, common but differentiated responsibilities, on prevention [articles 15-19, articles 4-8.] We will be following up with proceedings on these topics in a subsequent story.
Come Friday (July 21), countries will meet in a formal joint session of both the bureaux of the INB and the WG-IHR. This will be followed by the next WG-IHR meeting July 24-28. A list of issues that feature in both these processes has also been drawn up including on equity, CBDR, ABS, surveillance, financing and capacity building among others.
TAILPIECE
The corridor talk at WHO continues to be upbeat reflecting the ostensible political commitment countries have towards these negotiations. But the trust deficit on key issues is lost on no one.
Many are watching closely on the politics of the process. The way the informal sessions will be structured and the way they will be linked to the formal negotiating processes will be crucial.
“There are a dozen or so key negotiators from developing countries who could determine how this fight plays out. And they are not only from the middle powers”, one observer closely tracking these discussions told us this week.
Also see: TWN’s Pandemic instrument meeting started with no clarity on the negotiating text
Assessing the State of Play in the WHO Pandemic Instrument Negotiations
(Note from editor: I apologize for typos and language errors in a previously published story. I have since fixed them on the website. We are getting used to this new pace of publishing, and will make every effort to ensure high quality editorial output for our readers.)
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