TWN Info Service on Health Issues (Jun23/06)
22 June 2023
Third World Network

WHO: No consensus to initiate textual negotiations on pandemic instrument

21 June 2023 Geneva (Nithin Ramakrishnan) – The resumed session of the 5th meeting of the Intergovernmental Negotiating Body concluded without a consensus to initiate textual negotiations on the Bureau’s text for a WHO Convention, Agreement or Other International Instrument on Pandemic Prevention, Preparedness and Response (pandemic instrument).

The resumed session concluded at the WHO Headquarters in Geneva on 16 June 2023, after a weeklong deliberation. Paragraph 3 of the meeting report, adopted at the conclusion of meeting states: “The INB considered the Bureau’s text as a basis for further work on the understanding that the INB may continue to refer to the compilation text.”

Thus, Member States politely refused to accept the Bureau text as the negotiating text but considered it only as a basis for further work. It is learned that the reference to the compilation text was at the insistence of developing countries.

According to a developing country delegate, “as a basis for further work” in paragraph 3 of the report does not necessarily mean “the Bureau’s text is the negotiating text”. Later, the same delegate also pointed out the fact that even the Bureau’s co-chairs have said that the Bureau’s text is not the first draft or the negotiating draft during the informational briefing session held on 5 June, before the resumed meeting. The closing statement of countries identifying themselves as a Group for Equity explicitly stated that no textual negotiations took place during the resumed session.

The consideration of the Bureau’s text was one of the main agenda items for the resumed session of the INB5. The programme of work suggested that during the plenary meeting the INB will be invited to provide “general comments on the Bureau’s text” and in the drafting group, the “INB will be invited to discuss and consider the Bureau’s text as a basis for negotiation”. However, as reported earlier the consideration of the Bureau’s text did not mean textual negotiations.

The Bureau’s proposed programme of work circulated in advance to Member States stated: “Through these discussions, Member States are invited to ensure that relevant ideas and concepts are addressed in the Bureau’s text, rather than suggesting detailed revisions of wording. With that in mind, to facilitate collective understanding and consensus, members of the drafting group may wish to consider providing textual inputs which accommodate various views”.

The resumed session met in the drafting group mode immediately after the plenary meeting. However, Member States started to highlight the ideas and concepts that were missing in the Bureau’s text. In that process, the INB reviewed some of key textual proposals made by Member States to the Zero Draft of the pandemic instrument. As reported earlier, many Member States in their opening remarks during the plenary stressed the need to strengthen the equity provisions in the Bureau’s text to start the negotiations.

The Zero Draft of the pandemic instrument was developed by the Bureau and circulated in February 2023, which remained as the basis for discussions during INB4 and INB5. Member States have proposed numerous additions and changes to this draft through both oral interventions and written submissions. The collection of these proposals is referred to as the “compilation document”. After the first session INB5, the Bureau then developed another text which was circulated during the 76th session of the World Health Assembly and this is referred to as “the Bureau’s text” for the pandemic instrument. As reported last week the Bureau’s text ignores several proposals from developing countries that are crucial for delivering equity.

Additionally, a pilot testing of an informal intersessional meeting was also conducted during the resumed INB5. Here as well the INB did not enter into textual negotiations. Instead, they largely focussed on the proposals made by Member States to the Zero Draft, especially the ones which did not find place in the Bureau’s text.

It was learnt that discussions focussed on ideas, and concepts contained in the textual proposals to the Zero Draft from Member States which were not included in the Bureau’s text and attempts were made to explain why and how these must be incorporated into the Bureau’s text before negotiations can begin.

There were detailed presentations on Access and Benefit Sharing (ABS) proposals from the Africa Group, the U.S. and the E.U. which are currently not part of the Bureau’s text, but available in the compilation text. The Africa Group reportedly requested to have their text proposal considered as the basis for future negotiations on Article 12 of the pandemic instrument which deals with ABS, especially in the upcoming informal intersessional meetings. 

The report of the resumed INB5 was not deliberated openly. It was learnt that the report was also negotiated during the drafting group itself unlike the past, wherein Member States adopt and if needed, negotiate, the report in the closing plenary session which is open to observers.

The report states that there will be intersessional meetings on three subject matters: (i) Article 9 (Research and development, (ii) Article 12 (Access and benefit-sharing), and (iii) Article 13 (Supply chain and logistics), before the 6th meeting of the INB. These informal meetings will continue to focus on the Member States’ textual proposals, ideas and concepts contained therein, hoping to generate more consensus on the issues dealt with under the three Articles. The next INB meeting is scheduled for 17 July.

Another schedule of informal meetings has since been circulated to Member States as follows:

·         Article 9 on Research and Development will be discussed on 30 June (4 pm to 7 pm)

·         Article 12 on Access and Benefit sharing will be discussed on 26 June (5 pm to 8 pm), 3 July (3 pm to 6 pm), 6 July (1 pm to 4 pm)

·         Article 13 on Supply Chain and Logistics will be discussed on 22 June (10.00 am to 1 pm), 5 July (2.00 pm to 5.00 pm)

Need for an improved text for negotiations

It was very clear from these most discussions in Geneva that there is no clarity on what text will be chosen as the negotiating text, even when it is said that the Bureau's text is going to be the basis of future work. The INB Co-chairs have said that the Bureau's text is neither a first draft nor negotiating text, and the compilation document will remain on the negotiating table. Discussions generally picked up proposals from the compilation text, and both developing and developed countries expect some of these proposals to be reflected in the Bureau’s text.

Earlier in the opening plenary, the Africa Group, the Group of Latin American Countries and the Group for Equity had indicated the need for concrete legal provisions delivering equity in pandemic prevention, preparedness, response and recovery. However, the concluding report of the resumed INB5 does not offer any clear way forward to address the concerns of developing countries, i.e. strengthening the Bureaus’ text.

In reiterating its position in its closing statement, the Africa Group emphasised its expectations for “an improved version of the Bureau text during coming INB’s”. The Group said that it is with this expectation that they have agreed to intersessional meetings on selected issues of concern.

The Group stated: “The African Region welcomes the proposition of intersessional and informal meetings as a way to move forward and enhance mutual understanding. Emphasizing the principle that "nothing is agreed until everything is agreed," we make it categorically clear that the compilation text [document] remains on the table and we reserve our right to bring back any text from this document.”

The Group further stated that “During the course of the week we have articulated our concerns and areas that require improvement. It is crucial that we work towards strengthening the Bureau text to reflect concrete obligations on equity in pandemic prevention, preparedness, response, and recovery. This includes strengthening the provisions on research and development, access and benefit sharing, technology transfer and know-how, and access to health products. In particular, we emphasise the need to address the disproportionate burden faced by developing countries, especially in Africa, in accessing critical health technologies and ensuring fair and equitable distribution of life saving supplies and medical countermeasures.”

The Group for Equity which reiterated the need for concrete legal provisions on delivering equity, also emphasised the importance of the compilation text in the opening plenary.

Resistance to reflect suggestions from developing countries

Contrary to the needs expressed by developing countries for a strengthened Bureau’s text, there was significant reluctance to reflect their suggestions in the Bureau’s text or the reorganized text for Article 9 which was developed during the pilot informal meeting.

Interestingly, during the drafting group meetings, the INB conducted a pilot informal meeting, co-facilitated by Norway and Mexico, on the subject matter of research and development (Article 9 of current Bureau’s text).  Several developing countries said that the result of the discussion was not very tangible. The outcome was only a reorganisation of the current text of Article 9 of the Bureau's text, even though several developing country proposals to the Zero Draft which are missing in Article 9 were pointed out during the informal meeting.

However, developed countries showed very little acceptance or convergence with the suggestions from developing countries. This confirms the fear that the Bureau’s text is increasing the work load of developing countries, because they have to first struggle hard to get their textual proposals or suggestions reflected in the negotiating text. This is going to be a negotiation before the actual negotiations.

According to a developing country delegate, “We don't find any difference in the form of discussions held during plenary, drafting groups and informals of the resumed INB meeting. None of these discussions are getting reflected in the text, especially the ideas and concepts that are sought by developing countries. At the same time, we are put in a situation where we cannot agree to alter text during the informals because many small sized delegations cannot ensure their participation. It seems like some people want us to get tired and frustrated by discussing the same thing over and again until we yield to pressures from the North. We simply do not know when our proposals will get reflected in the negotiating text. In fact, there is no clarity on which text is going to be our negotiating text or how the negotiating text will reflect our textual proposals”.

Another developing country delegate also said that “the process is getting significantly delayed because of reluctance to include the textual proposals from Member States”.

The Group for Equity in its closing statement said, “Smaller delegations are hard-pressed with simultaneous issues and are not always able to attend the informal sessions or discussions. Therefore, our formal meetings should continue to be the platform to improve the text while informal sessions can be considered for minimizing gaps and building consensus.”

Efforts to subdue developing country voices?

It was initially proposed to hold the informal meetings in a manner that 3 representatives from each region will speak to each other to arrive at a consensus text. However, countries rejected this proposal and said that informal meetings should be open ended. Also, it was proposed not to open the text during informal.

Similarly, there was a move to request small delegations who make critical contributions to the proposed text of the pandemic instrument to co-facilitate the intersessional meetings. This would shift them from pressing for their proposals to facilitating discussions on the floor. When these delegations become co-facilitators then there will be little expertise left in their delegation sitting on the other side of the table to pursue their proposals. Some of these delegations rely extensively on their lead negotiator and with him or her sitting in the co-facilitator’s seat this would subdue their voices in defending their own proposals.

These moves were to an extent guarded against as it is a common understanding that informal intersessional meetings would not alter the text. Nevertheless, the resistance of certain Member States to reflect the proposals in the Bureau text remains a legitimate concern for developing countries given the fact that several of their proposals are not adequately reflected in the current Bureau's text.+