TWN Info Service on Trade and Health
29 November 2021
Third World Network
www.twn.my

WHO: WHASS negotiations stuck on nature of new instrument on pandemics
Published in SUNS #9469 dated 29 November 2021

Geneva, 26 Nov (Nithin Ramakrishnan and K M Gopakumar) – Negotiations on the outcome of the World Health Assembly Special Session (WHASS) are stuck due to the difference of opinion regarding the nature of the new instrument to be developed on pandemic preparedness and response.

The insistence of a group of Member States, especially the European Union, that the outcome document needs to mention that the new instrument should be under Article 19 of the WHO Constitution (i.e. a treaty), is the reason for the logjam in the negotiations.

Several other Member States assert that the consensus of the Working Group on Strengthening WHO Preparedness and Response (WGPR) to “establish an intergovernmental negotiating body in charge of developing a WHO convention, agreement or other international instrument on pandemic preparedness and response” is without any specific reference to the type of instrument under Article 19 of the WHO Constitution.

[The World Health Assembly can adopt a variety of instruments according to the WHO Constitution including a treaty (Article 19), regulatory instrument (Article 21), and recommendation (Article 23).]

The WHASS will be held from 29 November to 1 December at the WHO Headquarters in Geneva in hybrid mode.

Meanwhile, a drafting group on the WHASS decision has been conducting negotiations.

According to the WHA Decision 74(16) Operative Paragraph 2, the WHASS negotiations shall be based on the report of the WGPR and it shall consider the benefits of developing a WHO convention, agreement or other international instrument on pandemic preparedness and response with a view towards establishment of an inter-governmental process to draft and negotiate such a new instrument.

The report of the WGPR, adopted on 15 November, did not specify the nature of the instrument to be adopted. It leaves open all the options to the Member States as it simply proposes to establish “an intergovernmental negotiating body (INB) in charge of developing a WHO convention, agreement or other international instrument on pandemic preparedness and response.”

However, the draft decision circulated by Chile stated: “The World Health Assembly at its Second Special Session, decides to establish an Intergovernmental Negotiating Body (INB) open to all Member States and Associate Members to draft and negotiate a WHO legally binding instrument on pandemic preparedness and response for consideration by the World Health Assembly under Article 19 of the WHO Constitution”.

This text has received formidable opposition from various Member States as it directly contravenes the consensus of Member States at the WGPR.

The United States has also circulated another draft decision in this context.

It proposes establishing an INB open to all Member States, but takes the phraseology from the WGPR report, i.e. to draft and negotiate “a WHO convention, agreement, or other international instrument on pandemic preparedness and response”.

It must be noted that the proposal to establish an INB for the purpose of drafting and negotiating an Article 19 instrument was defeated in the WGPR meetings due to incomprehensive and incomplete examination of the required legal reforms.

The consensus of the Member States on 15 November, was that the nature of the instrument can only be decided after looking at the elements of the necessary legal reforms and its nuanced essentialities, as appropriate.

Various findings and recommendations on the improvement of the functioning of WHO and its Member States have been submitted to the WHO by many experts, both acting under the aegis of WHO and independently.

A crucial examination of these recommendations is almost unavoidable for identifying the elements of the new instrument, if any is necessary.

The WGPR report, therefore, in addition to the establishment of the INB, has also proposed to the WHASS to outline a Member State-led, transparent and inclusive process to identify and develop the substantive elements and a zero draft of a new instrument.

This is clearly without prejudice to or pre-empting the nature or type of such an instrument (whether a treaty, regulatory instrument or recommendation).

The report also proposes to WHASS to support the WGPR in continuing “its work under resolution WHA 74.7, including to identify the tools to implement the recommendations that fall under the technical work of WHO and to further develop proposals to strengthen the IHR (2005), including potential targeted IHR (2005) amendments, and elements that may most effectively be addressed in other venues.”

[The International Health Regulations (IHR) of 2005 provide the existing legal framework for responding to global health emergencies.]

It was suggested that the INB shall work with all options open, taking into consideration the need for coherence in finding elements of the required legal reforms and categorizing them for choosing the instrument that can effectively bring out the reforms.

Reportedly, for better coherence between the WGPR and INB, the US has proposed that the INB shall meet after the 75th Session of the WHA (WHA 75), while the WGPR will complete its work ahead of WHA 75 scheduled for May 2022.

The US also has reportedly sought to get the mandate for the WGPR to develop the elements for the new instrument, arguing that this could enable more coherence between the work of the WGPR and INB.

Another contentious issue relates to the timeline.

While the EU insists that the first draft of the new instrument has to be prepared by June 2022 and negotiations concluded by the 76th WHA in 2023, many other Member States insist on a more reasonable timeline to conclude the negotiations by the 77th WHA in 2024.

According to a developing country delegate, the US proposal to mandate the WGPR to develop elements for the new instrument as preparatory support for the INB’s work now stands rejected.

However, Member States have agreed to establish an INB and to have the first meeting on substantive issues only in August 2022.

A revised draft decision is apparently in circulation which marks the conclusion of the discussion on almost all other aspects except on the question of the nature of the instrument and timeline of negotiations.

The consensus of the WGPR, therefore, remains threatened, to be challenged by a group of Member States.

The drafting group on the WHASS decision is continuing its discussion to reach a consensus on the reference to the nature of the instrument and the timeline.