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TWN Info Service on Health Issues
19 July 2023
Third World Network
www.twn.my
WHO: Pandemic instrument meeting started with no clarity on the negotiating text
Geneva, 19 July (Nithin Ramakrishnan) – The 6th meeting of the World Health Organization’s Intergovernmental Negotiating Body (INB6) on the pandemic instrument continues to discuss the Bureau’s text, without any clarity on the development of the negotiating text.
INB6 is meeting from 17 to 21 July at the WHO headquarters in Geneva in a hybrid mode.
The provisional agenda of INB6 lists the following three important programs of work:
- briefing by the co-facilitators of the intersessional informal meetings of the Drafting Group held after INB5 (item 2).
- discussion on the INB Bureau’s text for the pandemic instrument (item 3).
- the next steps (item 5).
INB6 will conclude at noon on 21 July and the rest of the day will be used for the joint session with the Working Group on Amendments to International Health Regulations 2005 (WGIHR). This joint session will continue at noon on 24 July noon prior to the 4th meeting of the WGIHR.
The draft programme of work provides further details on the provisions of the Bureau’s text which will be considered this week. Articles 15 to 19 will be discussed first:
Article 15: International collaboration and cooperation
Article 16: Whole-of-government and whole-of-society approaches at the national level Article 17: Implementation, acknowledging differences in levels of development
Article 18: Communication and public awareness
Article 19: Financing.
Following this, if time permits INB6 will then also take up the following provisions for consideration, as well as other remaining provisions:
Article 4. Pandemic prevention and public health surveillance
Article 5. Strengthening pandemic prevention and preparedness through a One Health approach
Article 6. Preparedness, readiness and resilience
Article 7. Health and care workforce
Article 8. Preparedness monitoring and functional reviews.
[The Bureau’s text was released in May 2023, during the annual World Health Assembly, after the first session of INB5. The resumed INB5 was held in June 2023, which discussed in general the Bureau’s text during its open plenary session, during which developing countries’ discontent regarding the scope and effect of the equity provisions became very apparent.
In the closed drafting group sessions that followed, lengthy discussions took place on Articles 9 (research and development), 10 (liability risk management), 11 (co-development and technology transfer and know-how), 12 (access and benefit sharing) and 13 (supply chain and logistics) were discussed at length. Articles 9, 12, and 13 were later further discussed in several informal intersessional meetings held after INB5.
There are significant developing country text proposals for all these Articles that are critical to the delivery of equity but not included in the Bureau’s text].
Further a new document called “procedure for meeting” is in circulation that seeks to continue informal drafting group discussions on Articles 9, 12 and 13 along the sidelines of INB6 meetings, although these are absent from the provisional agenda and programme of work. The schedule is as follows:
“Monday 17 July at 16:00 – 18:00 hours CEST – Article 9 (Research and Development), co-facilitated by Mexico and Norway
Tuesday 18 and Thursday 20 July at 16:00 – 18:00 hours CEST – Article 12 (Access and Benefit Sharing), co-facilitated by Australia and Ethiopia
Wednesday 19 July at 16:00 – 18:00 hours CEST – Article 13 (Supply Chain and Logistics, co-facilitated by Indonesia and Pakistan”.
However, it must be noted that no textual changes can be made as a result of the informal meetings, because the understanding of INB5 is such that the informal meetings are better aimed at understanding each other’s positions, technicalities and trust building. Small states and those states that do not maintain large delegations in Geneva cannot fully participate in such meetings. This continuing practice of informal discussions without incorporating text proposals from Member States into the Bureau’s text is not generating a result. It has become increasingly clear that negotiations cannot start without textual insertion of Member States’ proposals.
For instance, during agenda item 2 discussions, Kenya made it clear that Member States should be given the opportunity to insert language, particularly on equity-related provisions, before commencement of negotiations on the first draft. While welcoming the continued informal sessions, Kenya stated:
“In as much as we see merit in these discussions, it is important for the Bureau to clarify at this point when Member States will have the opportunity to input text into the Bureau’s text. In our view, this should be the preserve of the formal meetings of the INB and as such, we propose that informal sessions maintain focus on clarity seeking and consensus building as their main mandate.
Such an approach will ensure that the INB remains true to its founding mandate and fidelity to the principles of inclusivity and transparency. This will also ensure that smaller delegations are not placed at a considerable disadvantage if they are unable to keep up with the scheduling and timing of the informal sessions.”
Article 15 includes diversification of production, but excludes safeguards on investment disputes and debt defaults
Article 15 is largely an umbrella clause providing for a general obligation to cooperate and collaborate on specific areas of interest such as establishing appropriate governance arrangements, mechanisms for policy decision making, policies for protection of vulnerable people, promotion of equitable representation in decision making and implementation, information sharing, universal and equitable access to pandemic-related products, WHO’s access to outbreak sites, capacity building, and ensuring cease fires during pandemic.
The paragraphs provided by the Bureau’s text in Article 15 are largely a reproduction of the Zero Draft, however with some significant changes. The most significant has been the incorporation of a new sub-paragraph in Article 15 paragraph 1, mentioning equitable access to pandemic-related products through diversification of production as one of the explicit areas of cooperation and collaboration.
The new paragraph 1(e) reads:
“The Parties shall coordinate, collaborate and cooperate with competent international and regional intergovernmental organizations and other bodies, as well as among themselves, in the formulation of cost-effective measures, procedures and guidelines for pandemic prevention, preparedness, response and recovery of health systems, and to this end shall:… (e) ensure solidarity by providing universal and equitable access to pandemic-related products, technologies and know-how, including through diversification of production to developing countries, technology transfer.”
While this incorporation is based on the proposal by a number of developing countries such as Bangladesh, Brazil, Haiti, Pakistan, Indonesia, Egypt, Malaysia, Iran and Namibia, their original proposal wanted to ensure “unobstructed supply” as a standard. This has not found a place in the Bureau’s text. Using the “unobstructed supply” standard in the provision is important to avoid having countries use political reasons to hinder supply of health products and other essential supplies during a pandemic.
There are a few other important proposals made by developing countries to Article 15 that are not included in the Bureau’s text. Two of them relate to foreign investors taking dispute action against governments and to developing countries in debt distress. The proposals are as follows:
“Parties agree to exclude any measure taken in pursuance of WHO CA+ or IHR 2005 from the scope of the dispute settlement provisions of under investment protection agreements.”
“Parties agree not to sue other Parties or take retaliatory measures against a Party failing to debt service during a pandemic nor shall they charge defaults with further interests.”
These proposals have the backing of at least five developing countries: Bangladesh, Brazil, Brazil, Haiti, Pakistan and Egypt.
Article 16 on “whole of society” approaches at the national level
Article 16 obligates States to establish, implement and adequately finance an effective national coordinating multisectoral mechanism with meaningful representation, engagement, and participation of key actors or communities, as appropriate. However, in the name of “whole of government” and “whole of society” approaches to pandemic prevention, preparedness, response and recovery, Article 16 not only seeks to promote community engagement, but also seeks to include private sector entities.
The text obligates States to promote meaningful participation of communities in decision making and implementation, but fails to take into account the developing country proposals to refer to the Alma-Ata Declaration (1978) and its comprehensive principles requiring international and national actions. Article 16 thus largely targets the national level, however local needs for strengthening community engagement is not taken into account and there is less clarity on how community engagement at the national level could be made inclusive and participatory, especially considering the resources required for communities to engage effectively at national level.
On the other hand, the provision will enable easy access by private sector entities with their ample resources, to the national governments, especially where policies are made. It must be noted that there is no safeguard to avoid conflict of interests mandated under Article 16. In fact, there were developing country proposals in this regard but ignored in the Bureau’s text.
Article 17 recognizes developmental divide instead of the proposed Chapter on CBDR
Article 17 is on “implementation, acknowledging the differences in the level of development” and provides 3 options. Option A is a minimalistic approach to provide implementation support taking into account the special needs and requirements of developing countries. Option B is a bit more elaborate on specialized treatment of developing countries, whereas Option C provides for exclusion of the very same Article 17 from the pandemic instrument.
It must be noted that the Bureau’s text for a new Article 17 is in lieu of incorporating the developing country proposal for a new Chapter VI on Common but Differentiated Responsibilities (CBDR). Nevertheless, the Bureau has attempted to capture some elements of this proposal under the new Article 17 paragraph 3 (option B) of its text that reads as follows:
“3. Financial assistance, technology transfer, technical assistance, and support for capacity building shall be provided by developed country Parties to help developing country Parties to implement the provisions of the WHO CA+. The extent and the timing of implementation of the provisions of the WHO CA+ shall be related to the implementation capacities of developing country Parties, recognizing that enhanced support for developing country Parties will allow for higher ambition in their actions. Other Parties are encouraged to provide or continue to provide such support voluntarily.”
The developing countries’ proposal for the CBDR chapter had three distinct provisions dealing with (i) common obligations of all States regardless of their developmental levels; (ii) obligations of the developed countries; and (iii) specialised treatment to the developing county implementation of obligations under the pandemic instrument. It is only the paragraphs of Article 19 C of the proposal, on the specialised treatment of developing countries’ implementation, that gets reflected in the Bureau’s text for Article 17.
Although the new Article 17 is a step forward in the Bureau’s text, it will be less effective, without the corresponding obligations proposed in common for all States and those distinctively for developed countries.
Article 19 on financing continues to be silent on its link with IHR 2005
Article 19 provides for financing both at the national and international levels. Paragraph 1 recognizes the primary responsibility of national governments in this regard and then requires parties to undertake certain obligations, with each party to undertake financial responsibilities for several functions including for implementation of the pandemic instruments, strengthening of health systems and other capacities, implementation of national plans and for providing support to developing countries. Paragraphs 2 and 3 respectively call for ensuring finance for pandemic prevention, preparedness, response and recovery, and to establish financial mechanisms avoiding duplicity and ensuring complementarity with existing mechanisms.
There is no reference to the International Health Regulations (IHR) 2005 in the proposed text of Article 19 for a new financial mechanism. This is problematic when coupled with the unwillingness of the developed countries to establish a financial mechanism under IHR 2005 as proposed by the Africa Group in that parallel process. It must be noted that IHR 2005 has a very clear understanding on basic capacities that are required by national health systems in order to be resilient to public health emergencies of international concern. Establishing a financial mechanism within IHR 2005 therefore will provide further impetus and operational effectiveness for capacity building, especially with regard to health emergency preparedness and response.
On the other hand, developed countries are not generally appreciative of having a financial mechanism under the WHO, and they point towards the World Bank’s Pandemic Emergency Financing Facility to purportedly avoid duplication. This is despite the proposal by the E.U. agreeing to establish a financial mechanism under the new aegis of the new pandemic instrument, but only after the entry into force of the instrument and working through its governing body.
During the first session of INB5, the European Union had proposed: “… For this purpose the Conference of the Parties shall, at its first session, define a financial mechanism functioning under its guidance. It shall select the existing entities providing multilateral, regional and bilateral financial and technical assistance to be entrusted with the operation of the mechanism and set out the necessary arrangements for cooperation with these entities in order to enable its effective and equitable operation.” (Paragraph O.1.5.)
Bangladesh in its proposal to the Zero Draft attempted to link Article 19 to the Africa Group proposal to establish a financial mechanism under the IHR 2005. Several such proposals linking the governance mechanisms and other institutional mechanisms are not adequately reflected in the Bureau’s text. On 21 and 24 July the INB will meet with the Working Group on Amendments to IHR 2005 (WGIHR) for a joint plenary session where some of these issues could be addressed further.
Joint plenary meeting with WGIHR
It was a long-standing proposal in both the INB and WGIHR that at some point of time both intergovernmental bodies would meet each other and discuss certain issues of common interests and the need for complementarity. It has been decided that on 21 July, INB6 will conclude by merging with WGIHR4, in a joint plenary session. This joint plenary session will continue on 24 July.
The published provisional agenda of the joint meeting has the following substantive items:
“2. Relationship between the processes and instruments of the Intergovernmental Negotiating Body and those associated with the International Health Regulations (2005)
• Member States are invited to exchange views, including in relation to the following:
– The objective and scope of the instruments, and the relationship between them
– Definitional considerations, including in relation to a public health emergency of international concern and pandemic
3. Topics of common interest to the Intergovernmental Negotiating Body and the Working Group on Amendments to the International Health Regulations (2005)
• Member States are invited to discuss this matter and provide views on how to move further towards coherence and complementarity between the two instruments”.
There is also a list of topics of common interest that have been identified: (i) equity, (ii) CBDR, (iii) surveillance, (iv) review and reporting, (v) access to health products, (vi) access and benefit sharing, (vii) financing, (viii) capacity building/collaboration and cooperation, and (ix) preparedness and health systems resilience.
The document comes with a caveat that it is a non-exhaustive list of issues/topics that are being addressed both in the INB and WGIHR processes. Further it states that it does not purport to propose the allocation of issues or topics to either process.
Discussion on declaration of a pandemic and the governing mechanisms of the two instruments is not explicitly included in the provisional agenda nor in the list of topics of common interests. It is very important to avoid governance fragmentation and wastage of resources for administrative purposes, which would be the case if both instruments maintain separate secretariat and governing bodies. In this regard, there are proposals also from countries like Namibia to convert the proposed implementation committee, comprising all States Parties, under IHR 2005 to be the governing body of the new pandemic instrument.
In practical terms this means the same committee will allocate sessions as the implementation committee to IHR 2005 and as the governing body for the new instrument, where the representatives of the State Parties to the corresponding instrument will be voting members and the others will participate as observers without voting rights. Several international instruments work in this format, for example, the Conference of Parties to the Convention on Biological Diversity sits as the Meeting of Parties to the Nagoya Protocol on Access and Benefit Sharing as well as Meeting of Parties to the Cartagena Protocol on Biosafety.
Effective compliance and governance are very critical for the actual delivery of equity in health emergency preparedness and response. Without addressing the governance of the two instruments, it is doubtful how the respective bodies can discuss the relationship and complementarity between the two instruments.+
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