Confusion prevails over 1st draft of new pandemic instrument

Covid-19

Geneva, 12 March (Nithin Ramakrishnan and K M Gopakumar) – Confusion prevailed over the development of the first draft of a new pandemic instrument at the end of the fourth meeting of the Intergovernmental Negotiating Body (INB) tasked by the World Health Assembly to draft and negotiate a “WHO convention, agreement or other international instrument on pandemic prevention, preparedness and response” (WHO CA+).

INB4 concluded with taking textual insertions on the Zero Draft of the proposed WHO CA+

The INB is composed of Member States, mandated to draft, and negotiate WHO CA+. The 4th meeting took place at the WHO Headquarters in Geneva from 27 February to 3 March.

The meeting considered the Zero Draft which was released during the first week of February. The INB Bureau with the help of the Secretariat may come up with a first draft of the pandemic instrument, after the textual insertions made during INB4 and INB5 (3 to 6 April), if requested by the Member States to that effect.

Paragraph 12 of the proposed modalities for INB4 and INB5 reads thus: “At the conclusion of INB5, the INB may wish to consider requesting the Bureau, with support from the Secretariat, to prepare the first draft of the WHO CA+, for consideration of and continued negotiation by the INB at the drafting group meeting of 12–16 June 2023.”

Currently there is no clarity in the INB regarding the fate of Member States’ textual suggestions from INB4 and INB5. The Bureau proposed that it will come up with a “first draft” with the support of the Secretariat after INB4 and INB5, for the consideration of the INB drafting group that will convene from 12 to 16 June 2023. There is no decision to this effect yet.  A decision may be made in INB5.

According to one delegate, the suggestion from the Bureau is that the textual suggestions during INB4 and INB5 will be annexed as part of the first draft. This means that Member States’ textual suggestions will not be presented in the form of a compilation of proposals with attribution to the Member States concerned (a common United Nations practice). Instead, a draft will be prepared by the Bureau with the Secretariat’s support, and Member States will be compelled to insert their textual suggestions again where these are left out.

In INB4, after the general discussion in the plenary and the first reading of the Zero Draft, Member States made textual insertions in a drafting group mode.  Drafting groups are not open to non-State actors, except to international entities with observer status.

[Generally, textual insertions are not made to a zero draft, and take place only on a first draft because once negotiations start, the re-drafting of the negotiating document by the Bureau and Secretariat is not considered as an efficient practice, and risks undermining a Member State-led process.]

Process slows down the negotiations stage

From 2 March textual insertions were made from the floor in INB4.  This was a time-consuming effort compared to the submission of textual suggestions in writing. As a result, Member States could only work on four articles by the close of the drafting group on 3 March.

During the discussions on modalities it was agreed that Member States will get one week after the completion of INB5 in April to submit textual suggestions in a written format. However the rider is that “the content and format of any such written comments reflect inputs that are made during the drafting group meetings (that is, proposed deletions, additions and/or alterations to specific sections of the zero draft)”. (Paragraph 9 of proposed modalities.)

The report of INB4 states that the deadline for submission of written textual proposals will be 14 April. It is not clear whether Member States would get an opportunity to submit the text proposals in writing to the first draft prior to the starting of the negotiations, as in the case of the International Health Regulations (2005) amendment proposals, where all Member States were given an opportunity to submit their written amendment proposals.

Since the publication of the Zero Draft the suggested modalities for the negotiations impliedly discourage Member States’ suggestions to improve the text. According to many observers the Zero Draft is not matured enough to start a text-based negotiations. There was also not enough time for the majority of Member States, especially those with a small delegation, to prepare to suggest proposals.

The Zero Draft was released on 1 February during the week of the WHO Executive Board meetings. From 20 February onwards, there were negotiations in the Working Group on Amendments to the International Health Regulations 2005 (WGIHR), which lasted for a week.  INB4 started the following week, and the small delegations were worried about their negotiating load and missing the chance to place their textual suggestions for the new instrument. Many of them did not even have time to consult their capitals before starting the negotiations.

According to a developed country delegate, “this is an irregular process”.  If drafters (the Bureau and Secretariat) of the Zero Draft are going to lead the revision of the draft to develop the first draft that becomes the basis for negotiations, then a Member State-led process of the INB drafting group would be compromised. Though the Member States’ textual proposals will be annexed the revision of the draft, instead of compiling the textual insertions by Member States, creates a mistrust.

A trust deficit among Member States is the main reason for the above inefficient process. The reasons for this trust deficit are two-fold.  First, there is doubt whether the first draft will capture the textual inputs of Member States in their exact form or whether the Bureau and the Secretariat will redraft the Zero Draft based on what they understand or what they think as feasible from the submissions of Member States.

Secondly, there is fear among supporters of a new pandemic treaty that there will be progress made at the WGIHR, rendering the negotiations for a new treaty redundant.  This trust deficit is further fuelled by the actions of developed countries who have not put on the table what they can offer for operationalising equity in health emergency prevention, preparedness, response, and recovery. Most of them have persistently ignored the demand for measures relating to benefit sharing, financing, diversifying production, technology transfer etc.

The INB drafting group began the second day of INB4 with the Bureau’s presentation of Zero Draft, article by article. Member States were allowed to give comments and questions. When the Member States started providing extended comments on the 3rd day the process was adjusted. Member States were then asked to only raise questions, and not to comment anymore on the draft. However, when questions started pouring in on the provisions of the Zero Draft, many of them were left unanswered.

At one point, Member States were told to defend what they like in the draft and to come up with proposals on what they would like to include further in the Zero Draft. To push start the textual proposals and discussions, the INB4 drafting group on the third day extended their discussions up to 9 pm in the night. On the fourth day, discussions on Articles 24 to 35 were completed in the first one hour and the drafting group started taking textual inputs into the Zero Draft. When the drafting group was suspended on the last day of INB4, textual inserts had been made up to Article 4(8) only.

Although there were no textual negotiations, but instead textual insertions, the final report adopted by INB4 states that, “INB agreed on the Zero Draft of WHO CA+ as the basis for “first reading” and commencing negotiations”. It also says 14 April will be deadline for submitting textual proposals. There was a clause placed by the USA and European Union which noted “pending the decision in INB5 on the preparation of the first draft”, which was deleted at the instance of other participants.

Thus, it is not clear whether Member States can submit written text suggestions after the release of first draft. The implication of such deletion read with Paragraph 12 of the proposed modalities will be that the INB may wish to request the INB Bureau for a first draft.  If so requested, the INB Bureau with the support of the Secretariat may prepare a first draft.

Ideally, the first draft should be a compilation of the Member States’ text proposals on the Zero Draft. If the INB Bureau decides to work on the Zero Draft to turn it into a first draft instead, this will further delay the INB process since Member States will have to consult with capitals to prepare further text proposals in order to improve the first draft for negotiations.

South Africa speaking on behalf of the Africa Group, in the plenary on the first day of INB4 had stated that the Bureau should explain the Zero Draft, and the rationale for its text. Bangladesh also requested the same to help understand the text and to come up with better suggestions. Bangladesh also stated that it was not appropriate for the Bureau to come up with another first draft if textual negotiations begin in INB4.

Ghana said that Member States need to consult capitals emphasising the legal implications of the document being discussed in the INB. Countries like Malaysia, Pakistan, Kenya, Ethiopia, Morocco, Bolivia also supported the calls for proper streamlining of negotiations and the need for time to prepare.

The USA also in its plenary statement said that INB4 should be used for substantive discussion instead of textual negotiations. The UK too called for more time to prepare.

China on the other hand was concerned about the release of the first draft and the dates of INB6 – they called for a substantive time gap between first draft and INB6 which will start ‘actual negotiations’ for a new pandemic instrument.

Bogging down developing countries with technical briefings

Interestingly, INB4 has now reserved the discussions on Chapter 3 of the Zero Draft which contains proposals on equity, including setting up a WHO global supply chain network, WHO Access and Benefit Sharing System, mechanisms for improving research and development capacities, and technology transfer for technical discussions. Similarly, a few other provisions such as Articles on One Health, Common but Differentiated Responsibilities and definitions were also placed under intersessional meetings in the month of March with the participation of relevant stakeholders.

Some observers consider this as a move to bog down small developing country delegations by raising doubts on the feasibility of their proposals to secure equity. It is unfortunate that technical expertise and classified information about the business models of the health sector and pharmaceutical research and development are used to delay the negotiations as well as to deny access to live-saving medicines. Already in the WGIHR, a review committee of IHR experts constituted by the WHO Director-General to provide technical recommendations was seen  casting doubts on Member States’ amendment proposals on equity.

Several countries like the USA, Japan, Monaco and Switzerland have expressed concerns about the equity mechanisms, what they mean and how they would operate. Meanwhile developing countries who were not happy with the provisions under Chapter 3 as the Zero Draft uses soft law language or language of future promises, also agreed to more in-depth discussions on these issues. The agreement on the intersessional meetings is now reflected in the draft report Paragraph 4 that reads as follows:

“It was further agreed that the Bureau, with the support from the Secretariat, will organize informal intersessional work between INB4 and INB5, with the participation of the relevant stakeholders, on the matters related to Article 1, Chapter III, Article 18 and Article 4.8 as appropriate of the WHO zero draft CA+. The INB and the WGIHR Bureaus will continue to coordinate, as appropriate.”

Canada wanted to ensure that these intersessional meetings be conducted “for ensuring coherence” with the World Trade Organization (WTO), World Intellectual Property Organization and the Quadripartite (FAO, OIE or World Organization for Animal Health, WHO and UNEP), while developing the text provisions in the new pandemic instrument. It proposed a text addition to Paragraph 4 of the report of INB4 to this effect. However, Brazil, Namibia, Argentina and Thailand intervened and deleted the insertion.

It must be noted that in the INB meetings, WTO and the Quadripartite have also come under scrutiny by the developing countries, the former for its failure to adopt a meaningful TRIPS Waiver for COVID-19 response in a timely manner, and latter for pushing through a joint plan of action on One Health, without active deliberations by Member States of the Quadripartite organizations.

Switzerland tried to record in the INB4 report Paragraph 4 the inclusion of a reference on inviting experts to speak in the intersessional meetings of INB. However, Nigeria and Namibia questioned how these experts will be selected and told the Bureau that the experts should be able to reflect a balance of views. The UK who wanted to oppose the notion of “balance of views” tried to introduce a new phrase “divergent view”.  However, due to lack of time, both these proposals were not included in the report. The Secretariat meanwhile took note that their selection of experts should accommodate a variety of views on the subject matters discussed and these experts cannot be chosen by simply picking people from the mainstream experts.

Although the INB agrees that its intersessional meetings are to be open to relevant stakeholders, however doubts remain over whether the Secretariat would suggest to hold intersessional meetings of WGIHR and INB together in a “drafting group” mode thereby excluding civil society observers from such meetings. Such a non-transparent process could allow privileged access to technical experts to speak to negotiators without public scrutiny.