TWN Info Service on Health Issues (Oct24/02)
4 October 2024
Third World Network

WHO: “Non-paper” on pandemic prevention and surveillance lacks vision; contributes to fragmentation

3 October, Kochi, India (Nithin Ramakrishnan) – A non-paper on pandemic prevention and surveillance circulated at 11th meeting the WHO Intergovernmental Negotiating Body (INB) on the pandemic instrument lacks vision and contributes to fragmentation of the global health emergency architecture.

[A non-paper is a discussion paper in intergovernmental negotiations which is not part of the formal negotiating document. The Party proposing a non-paper may, after initial discussions, insert textual proposals into the formal negotiating document on the basis of the non-paper.]

During the 11th INB meeting in September, a group of countries, primarily consisting of developed countries, led by the United Kingdom prepared this document titled “A non-paper on a further instrument on pandemic prevention and surveillance, taking into account a One Health approach to pandemic PPR and the amended IHR (2005)”.

The non-paper provides justifications for a proposed additional pandemic prevention instrument distinct from the WHO pandemic instrument to comprehensively deal with prevention, preparedness and response.

The document contains four sections: (1) background, (2) purpose and justification, (3) indicative scope, (4) nature of the instrument and the process to agree on an instrument.

In the background section, the document explains the context and its preparation.

Under the purpose and justification section, it outlines the reasons for considering a new instrument on pandemic prevention and surveillance, and refers to potential for advancing negotiations on the pandemic instrument, without elaborating on pandemic prevention.

Further, the section on the scope identifies broadly three areas of interest, measures at the human-animal-environment interface, person-to-person transmission and a coordinated multi-sectoral surveillance.

Finally, the nature of the instrument has been explained as containing both legal binding and non-binding elements, essentially meaning the new instrument would be in the nature of international treaty.

The non-paper was produced in response to developing country delegations who asked the proponents of One Health Approach to Pandemic Prevention to explain practical measures that Member States would like to propose for pandemic prevention, under the WHO pandemic instrument. According to sources, the United Kingdom volunteered to prepare this document in response to the demand from these delegations and requested other delegations to support them in the preparation of the document.

Developing countries want to assess whether these measures would require an additional instrument, or whether they can be addressed in the WHO pandemic instrument itself, which is currently being negotiated by the INB.

The document, to the contrary, takes the need for further instrument as a given, and then seeks to justify why a new instrument is the way to go forward, rather than explaining what practical measures the new instrument would entail.

In the background section, the document explains thus: “During INB 11 negotiations some Member States requested further clarification on what a further instrument could entail, and it was suggested a non-paper would be helpful. This non-paper responds to this request… It should be interpreted as indicative of what a further instrument could entail, and not prejudice future negotiations on scope, function, form and content of an instrument that Member States may undertake through, for example, an intergovernmental working group, if further work is agreed by the INB.”

It is learnt that several developing countries have expressed concerns about the non-paper for its lack of clarity and practical ideas during the drafting group meetings. A couple of developed countries speaking to Third World Network (TWN), have also raised doubts about the proposals contained in the non-paper and the need for a new and additional instrument.

Reading through the non-paper, a few developing countries who spoke to TWN said they do not see “anything indicative” about the non-paper. All said that “It is more of a justification, rather than description” adding that “The paper is overtly repetitive in all the four sections of this justification”.

“Possible practical measures and safeguards are not visible in the non-paper,” one of them observed. Some other delegations both from developing and developed countries were also concerned about the fragmentation of global health emergency architecture that such a proposal for a new instrument might lead to.

Indicative scope of the proposed new prevention and surveillance instrument:

The document says that the new instrument will “focus on evidence and risk-based actions  which directly relate to public health and the prevention of PHEICS (public health emergencies of international concern) and pandemic emergencies, including actions at the human-animal-environment interface (such as the reduction or mitigation of spillover and spillback risks for the emergence and transmission of infectious diseases of pandemic potential between animals and people) and person-to-person transmission, as well as coordinated, multisectoral surveillance.”

However, the document neither describes what those actions are nor gives an indicative list of those actions. For instance, in the above quote “reduction or mitigation of spillover and spillback risks” is mentioned as an action. Nevertheless, it is difficult to understand the phrase as an action. It reads more like an objective, not a practical measure.

The section on indicative scope gives a bulleted list of nine paragraphs about what the new instrument would include. In summary it is claimed that the new instrument would:

1.      Enhance and sustain global and national political commitment and multisectoral coordination;

2.      Enhance global capacity in the areas of prevention, public health surveillance, and coordinated, multisectoral surveillance as well as the national capacities;

3.      Articulate further capacity building and implementation actions and support to enable Parties, and particularly, developing country Parties, to effectively implement the provisions of the instrument;

4.      Include details that would set out what countries need to do for the implementation of Article 4, including through a One Health approach to pandemic PPR (prevention, preparedness and response) (i.e. more detail/specific actions than outlined in the Pandemic Agreement);

5.      Elaborate the relationship/potential for synergies with other international instruments and standards, in particular the amended IHR (2005), including those that address the drivers of emergence, with the aim of enhancing pandemic prevention;

6.      Elaborate actions to support multi-sectoral coordination at the community, national, regional, and global levels;

7.      Further clarify factors that could contribute to the emergence or spread of PHEICs with pandemic potential, pandemic emergencies, and those originating from zoonotic spillover/spillback, depending on national contexts;

8.      Advance understanding of drivers of zoonotic pathogen spillover/spillback at the human-animal-environment interface and promote primary prevention efforts intended to reduce emergence for high-risk areas;

9.      Elaborate priority evidence and risk-based actions that require a One Health approach to pandemic PPR.

Almost all the above claims are articulated superficially and are nothing different from what can be already understood from the text of Articles 4 and 5 of the WHO pandemic instrument.

The whole point of calling for this exercise on a non-paper was to make the developed country proponents explain clearly certain practical measures that they are envisaging to be part of Articles 4 and 5 and their implementation. This purpose is not served by the nine bulleted paragraphs as contained in the non-paper. 

For instance, the fourth and ninth bulleted paragraphs say that the new instrument would include detailed/specific actions, and evidence- and risk-based actions, respectively.  But the question asked to the proponents was to list at least a few of those actions. The non-paper does not do this.

Similarly with bulleted paragraphs 3 and 6, there are no details as to what actions would provide increased implementation support to developing countries or improve multi-sectoral coordination. There is no explanation as to why the same cannot be articulated in Articles 19 and 16 of the WHO pandemic instrument respectively.

[Article 19 is about implementation support and Article 16 is about Whole of Society and Whole of Government approaches].

It is also not clear what new capacities other than those already annexed to IHR 2005 are being envisaged under Articles 4 and 5 of the WHO pandemic instrument and why such capacities could not be listed under the WHO instrument.

Further, it is not clear why there should be a legal instrument for enhancing political commitment (first bullet), understanding drivers (8th bullet) and clarifying factors (7th bullet). These objectives could be easily achieved by a WHO resolution.

Purpose and justification for the proposed new prevention and surveillance instrument:

According to the non-paper, “Pandemic Prevention” is one of the core objectives of the WHO pandemic instrument and Article 4 in the proposed instrument lies at the core of this objective. The proposed new prevention and surveillance instrument seeks to “further elaborate the high-level provisions [as currently] set out in Article 4 on pandemic prevention and surveillance, taking into consideration a One Health approach to pandemic PPR and the amended IHR (2005) to enhance the implementation and effectiveness of the Pandemic Agreement”.

It also states that the new instrument is not the only option. According to the background section, “This non paper should also not be interpreted as taking other options off the table, such as returning to elaborating further detail in Articles 4 and 5 of the Pandemic Agreement as that is also for the INB to decide.”

According to a developing country negotiator, it is a relief that proponents of the non-paper acknowledge that an additional instrument is not the only way.  There are other ways of addressing the gaps one might perceive in pandemic prevention.

However, the negotiator also expressed concern that “the WHO Director-General, the Secretariat and a handful of Member States want to conclude the INB’s work by December 2024, and thus the INB Bureau and few other Member States are ruling out these other options, such as addressing pragmatic and equitable pandemic prevention measures under the WHO pandemic instrument.”

According to another developing country negotiator, certain developed countries are trying to avoid experienced and skilful negotiators from developing countries who are currently participating in INB. “They are planning to delay negotiations on substantive elements such as pandemic prevention, and pathogen access and benefit sharing, waiting for a change in the composition of delegations in the developing countries. Currently we have largely the team which successfully completed the negotiations on IHR 2005 amendments and now we have the experience in negotiating legally binding health instruments. Certain developed countries are aware of the fact that with our current team they have to yield more,” said the negotiator.

There are four justifications given for a new prevention and surveillance instrument:

“First, it facilitated streamlined Articles 4 and 5 text within the Pandemic Agreement text and could advance negotiations as less time would be spent negotiating detailed text.

Second, a further instrument would elaborate and detail the core capacities, key elements, measures, responsibilities and obligations to operationalise pandemic prevention and surveillance, taking into consideration a One Health approach and the amended IHR (2005).

Third, it would provide an opportunity for input arising from further multisectoral national, regional, expert and stakeholder consultations including with relevant intergovernmental organizations, particularly the Quadripartite, and for further Member State deliberations on the function, form and content of the instrument.

Fourth, it would allow us to clearly articulate the relationship and synergies with other existing instruments, in particular the amended IHR (2005).”

[The Quadripartite consists of four main agencies: the Food and Agriculture Organization, United Nations Environment Programme UNEP, WHO and World Organisation for Animal Health.]

All these justifications are flawed – none of these goals are beyond the scope of the INB.

First, no one has called for streamlining (reducing) text contained in Articles 4 and 5; the demand was always to make the proposals, responsibilities and obligations under Articles 4 and 5, balanced, proportionate, and equitable. Text was reduced on the basis of the streamlining approach pushed by the Bureau in order to adopt the WHO pandemic instrument by May 2024. This deadline has passed; certain delegations have also called for bringing back some of those provisions which were deleted before May 2024 for further consideration.

Secondly, core capacities on pandemic prevention and surveillance have already been listed in Annex 1 of IHR 2005 and these have been recently amended. Additionally, capacities if required can be listed in an Annex to the WHO pandemic instrument, currently being negotiated.

Thirdly, for the past three years WHO has been consulting experts and stakeholders, including the quadripartite through various intergovernmental groups including INB. Some of them have already stated that a new pandemic prevention and surveillance instrument could be counterproductive.

Finally, articulation of relationship and synergies with other international instruments can also be done in WHO pandemic instruments, and in fact it is being done.

A new negotiating body and a preparatory committee of experts

The non-paper regarding the nature of the new instrument and the process to develop it does not prescribe a precise form of the new instrument. Instead, it nudges the INB Member States to undertake a discussion on “work to be undertaken following the adoption of the Pandemic Agreement and of its broader legal architecture”, along the lines of a Bureau’s proposal that raised so many concerns in April and May 2024, in particular during the 77th World Health Assembly (WHA) and the INB negotiations immediately preceding the same.

The document briefly mentions the Bureau’s proposal from April 2024 i.e. to request WHA to task the development of the instrument to an Intergovernmental Working Group, supported by a preparatory committee composed of independent experts, with work on the instrument to be completed within a one-year timeframe.

The document also argues that Quadripartite partners should be consulted and be invited to provide relevant input and support throughout the process.

According to a diplomatic source, it is quite strange the proponents believe there needs to be further consultations with experts and stakeholders in constructing further legal obligations on pandemic prevention, after almost around 3 years of negotiations in the WHO. The proponents also think this as a justification for the new process – as if this is not something which the INB is already doing currently.

“Firstly, we had the Working Group on Strengthening WHO Preparedness and Response to Health Emergencies (WGPR). It negotiated for around one year. Secondly the WGPR gave rise to two other negotiating bodies, the INB and the Working Group on Amendments to IHR 2005.  All of these bodies met several times formally and informally, over the last 3 years, open to stakeholders and members of the quadripartite. Now, proponents want to continue negotiation for another 1 to 2 years through an additional process. Yet they fail to provide us with an indicative list of measures they want to apply in pandemic prevention and why it should be negotiated in a new process under a new negotiating group,” said the source.

[The three bodies mentioned above in total conducted 33 rounds of formal negotiations open to stakeholders and experts, including quadripartite partners, apart from informal consultations and public hearings. On an average, it would come to more than 1 meeting per month in the last three years.]

According to another delegate, the proponents themselves lack clarity of what they want in the new instrument. “They are just throwing a proxy to push details of PABS out of the WHO Pandemic Agreement. One must take note that they (developed countries) are very keen in calling for equal treatment for PABS and One Health – although they are inherently distinct ideas. The former is a mechanism based on a proven legal concept called ‘access and benefit sharing’, and it ensures equity. The latter is a scientific approach which is not yet defined and tested legally,” the negotiator explained.

Another negotiator said, “Basically they (developed countries) are not prepared, and they want time to prepare. That is understandable, but why should we commit to a new instrument before they explain what it is all about. Also, why should we commit to applying the same treatment to PABS, when we know the details, we are looking forward to in PABS, and when we are prepared. If they want time, let them take it, but let them negotiate it here. We will also negotiate PABS here. It is not acceptable to us to start a new process on PABS. Our region has made it clear that we want to see functional elements of PABS within the WHO Pandemic Agreement”.

Leading to Fragmentation

The non-paper, in its attempt to push for a new instrument on pandemic prevention and surveillance, is overlooking the impact of such an instrument might cause on global health emergency architecture. In the INB, interestingly, pandemic prevention and surveillance is not the only subject matter where an additional instrument is advocated. There is also an attempt to park the Pathogen Access and Benefit Sharing (PABS) system into a second additional instrument.

Several developing countries, including the Africa Group, are trying to push back against the idea of a new instrument for PABS and instead operationalize the same within the WHO pandemic instrument. Nevertheless, some developed countries, along with the Bureau, are pushing hard to streamline the text relating to pandemic prevention, surveillance, and pathogen access and benefit sharing within the pandemic instrument and then negotiate these two additionally proposed instruments.

Not all developed countries hold the same view; similarly, a couple of developing countries are also inclined toward the Bureau’s approach. However, several negotiators who spoke to TWN confirmed concerns about the fragmentation this approach could lead to. When there are multiple instruments, particularly when they need separate ratifications, it is almost certain there will be a different set of parties to each of the instruments.

It must be noted that the newly proposed additional instruments for future negotiations, along with the pandemic instrument currently being negotiated under the INB, are in addition to an existing instrument dealing with pandemic emergencies, the International Health Regulations (IHR) 2005. While the IHR 2005 does not require ratification and has universal participation of WHO Member States, the newly proposed instruments are generally advocated as instruments requiring ratification under the Constitution of WHO. This increases the potential for fragmentation.

“The impact of having an additional instrument on health emergency prevention, preparedness and response is itself concerning, and now we are talking about three additional instruments instead of one. The concerns on fragmentation are real and true, personally I am aware of them. But we don’t want to go against our traditional allies, we would like to give them a chance to justify themselves on the need for multiple instruments. We hope in the end common sense prevails,” a developed country negotiator told TWN on condition of anonymity.

[The WHO pandemic instrument currently under negotiation proposes a PABS instrument. It also proposes a pandemic prevention and surveillance instrument. Both are in addition to the existing International Health Regulations 2005, which deals with health emergency prevention, preparedness, and response, including pandemic emergencies.]

There will be an informal discussion on Article 4 on 4th October, i.e. today, at the WHO. The developed country Parties might try to call for a discussion on the non-paper.