Press Release – Re-inventing The Rules At WHO Pandemic Negotiations

Re-inventing the rules was good enough for the Working Group on Amendments to the International Health Regulations so why not for the Pandemic Agreement? 

At the close of the ninth meeting of the INB for a WHO instrument on pandemic prevention, preparedness and response on 28th March 2024 (to be resumed on 29th April 2024), the INB had failed to reach consensus.

It is perhaps worth noting that the first meeting of the INB took place on 24th February 2022 (after a special session of the World Health Assembly (in December 2021) decided to establish the INB with the mandate to draft the document now known as the “WHO Pandemic Agreement. The decision can be read here: https://apps.who.int/gb/ebwha/pdf_files/WHASSA2/SSA2(5)-en.pdf). Since then, there have been thirteen (13) further INB sessions (with the fourteenth taking place next week). In spite of the extended hours of negotiation, consensus continues to elude the INB – the one hundred and ninety-four (194) member nations have not being able to reach agreement on the terms of the WHO Pandemic Agreement.

The Latest Draft of the WHO Pandemic Agreement

The latest draft of the WHO Pandemic Agreement (which can be read here https://apps.who.int/gb/inb/pdf_files/inb9/A_inb9_3Rev1-en.pdf)  includes numerous terms to be agreed at a later date.

Consequently, in the absence of consensus being reached at next week’s resumed INB9, the INB will be submitting a watered down and incomplete document to the 77th World Health Assembly in May 2024. Essentially, it will be an agreement to agree on some of the most contentious elements of the negotiations.

The impacted Articles are detailed below.

Article 5. One Health

“4. The modalities, terms and conditions and operational dimensions of a One Health approach shall be further defined in an instrument that takes into consideration the provisions of the International Health Regulations (2005) and will be operational by 31 May 2026.”

Article 6. Preparedness, readiness and health systems resilience

“4. With the aim of promoting and supporting learning among Parties, best practices, and accountability and coordination of resources, an inclusive, transparent, effective and efficient pandemic prevention, preparedness and response monitoring and evaluation system shall be developed, implemented and regularly assessed, by WHO in partnership with relevant organizations, building on relevant tools, on a timeline to be agreed by the Conference of the Parties.”

Article 12. Access and Benefit Sharing

“6. The modalities, terms and conditions, and operational dimensions of the PABS System shall be further defined in a legally binding instrument that will be operational no later than 31 May 2026.”

Article 13. Supply chain and logistics

“6. A multilateral system for managing vaccine and therapeutic related compensation and liability during pandemics shall be considered.”

Article 20. Sustainable financing

“4. The Mechanism shall function under the authority and guidance of the Conference of the Parties and be accountable to it. The Conference of the Parties shall adopt terms of reference for the Mechanism and modalities for its operationalization and governance, within 12 months after the entry into force of the WHO Pandemic Agreement.”

Article 21. Conference of the Parties

“6. The Conference of the Parties shall by consensus adopt financial rules for itself as well as governing the funding of any subsidiary bodies it may establish as well as financial provisions governing the functioning of the Secretariat.”

Proposed Pandemic Treaty Resolution 

It is the opinion of UK Citizen that the INB does not have a mandate to negotiate the WHO Pandemic Agreement beyond the 77th World Health Assembly (WHA77) in May 2024. This, along with very limited time to reach consensus to be in a position to submit a completed WHO Pandemic Agreement to the WHA77 for adoption (as required by the current mandate) has resulted in the Secretariat publishing a proposed “Pandemic Treaty Resolution” which can be read here htt,ps://www.keionline.org/wp-content/uploads/INB-WHA-resolution-771-draft-16.04.pdf

The proposed Pandemic Treaty Resolution, with the WHO Pandemic Treaty included at Annex 1, is intended for submission to the WHA77 on 28th May 2024.

It is evident, upon reading the proposed resolution, that the intention is to create a dual-tracked approach to implementation of the proposed WHO Pandemic Treaty. Closer consideration of the text will illustrate this. Thus:

“13. REQUESTS the Director-General, with regard to Article 6.5 (Preparedness, readiness and resilience), Article 7.3 (Health and care workforce), Article 10.6 (Sustainable and geographically diversified production, and technology transfer and know-how), Article 13.1(Supply chain and logistics), Article 13.6 (vaccine and therapeutic related compensation and liability during pandemics), Article 14 (Regulatory strengthening), and Article 20.3(Coordinating Financial Mechanism) of the Agreement, to implement with immediate effect the activities under those aforementioned Articles……..”

In contrast, the proposed resolution envisions three separate Intergovernmental Working Groups (IGWG) to negotiate, arguably, the three most contentious areas of the WHO Pandemic Agreement on a totally different timeframe: (1) Conference of the Parties (COP IGWG); (2) WHO Pathogen Access and Benefit-Sharing System (PABS IGWG); and (3) One Health approach (OH IGWG).

With respect to the Conference of the Parties, the proposed resolution states that the COP IGWG will be held no later than 1st December 2025:

“7. RESOLVES that the first meeting of the COP IGWG shall be held no later than 1 December2025, in order to elect two co-chairs, reflecting a balance of developed and developing countries, and to define and agree on its working methods and timelines, consistent with this resolution and based on the principles of inclusiveness, transparency, efficiency, Member State leadership and consensus;”

With respect to the PABS and One Health, the proposed resolution states that the PABS System and the One Health “instrument/s” shall be operational no later than 31st May 2026:

“(5) in order to provide that WHO Pathogen Access and Benefit-Sharing System is operational no later than 31 May 2026, that the PABS IGWG shall submit its outcome for consideration by the Seventy-eighth World Health Assembly, or to the Conference of the Parties, as appropriate to the legal nature of the proposed international instrument deemed appropriate by the PABS IGWG;”

“(5) in order to provide that the instrument/s is/are operational no later than 31 May 2026, that the OH IGWG shall submit its outcome for consideration by the Seventy-eighth World Health Assembly, or to the Conference of the Parties, as appropriate to the legal nature of the proposed international instrument deemed appropriate by the OH IGWG;”

In addition, the proposed resolution includes language that could be considered as pressurising the member nations to sign an unfinished agreement as soon as possible and preferably at the WHA77:

“3. CALLS UPON all States and regional economic integration organizations entitled to do so, to consider signing, ratifying, accepting, approving, formally confirming or acceding to the Agreement at the earliest opportunity, with a view to bringing the Agreement into force as soon as possible;”

“2. NOTES that, in accordance with Article 33 of the Agreement, the Agreement shall be open for signature at WHO headquarters in Geneva, from [28 May] to [28 June] 2024, and thereafter at United Nations headquarters in New York, from [8 July] 2024 to [7 July] 2025;”

It is worth noting that this ever-increasing bureaucracy has to be funded as evidenced in the text of the proposed resolution:

“14. FURTHER REQUESTS the Director-General:

(2) to allocate the necessary resources for the above-established intergovernmental processes to carry out their mandates;”

Summary

The member nations have not been able to reach agreement.

Equity, common but differentiated responsibilities, technology transfer, IP (intellectual property) and financing were areas of divergence at the outset of the negotiations and they remain so over two years later. Rather than simply acknowledging this and announcing that a consensus cannot be reached, the Secretariat is re-inventing the mandate which will result in further protracted negotiations well beyond the WHA77 and ultimately lead to a separate international instrument for PABS and at least one (perhaps multiple) separate international instrument(s) with respect to One Health.

Re-inventing the rules? Why not? Afterall, if it was good enough for the Working Group on Amendments to the International Health Regulations (2005) then why not for the WHO Pandemic Treaty?

The resumed INB9 commencing on Monday 29 April is supposed to be the final negotiating session to agree a new pandemic instrument. Irrespective of what happens, the WHO Pandemic Treaty should not be signed by the UK government.

Next Steps