High time to end the compilation mode

At  the “second resumed session” of their first meeting, on 6-8 June 2022, the members and the bureau of the “Intergovernmental Negotiating Body to draft and negotiate a WHO convention, agreement or other international instrument on pandemic prevention, preparedness and response” (INB) accomplished an important preliminary step in the drafting and negotiating of a “pandemic treaty”: the compilation of potential fields to be addressed in this new international instrument.

At the end of the session, a draft “White Paper: draft annotated outline of a WHO convention, agreement or other international instrument on pandemic prevention, preparedness and response” was informally shared by the INB Bureau with the participating member state delegates, and a follow-up session was scheduled for 17-18 June to discuss it (see the draft report of the 6-8 June session here).

Note TS, 14 June: the “White Paper” is now published as “Draft annotated outline” with a new design, but still the same content: INB documentation, document A/INB/1/12

The core of the “Draft annotated outline” contains, on ten pages, a long list of potential “substantive elements” of the new instrument already published before (see document A/INB/1/8 and online dashboard) and based on proposals by member states and “other stakeholders”. The paper rearranges these proposals in the following way:

Access 3* 6 9 5
Transfer of technology and know-how 3 4 4 1
Governance and leadership
Coordination, collaboration, cooperation 7 9 8 6
Multi-sectoral actions 9 9 6 4
Systems and tools
Capacities and systems strengthening 11 13 8 4
3 4 4 4

*Number of substantive elements listed in the respective sections of the “Draft annotated outline” (table by TS)

The document also proposes a set of “general obligations” (for member states), and it containts a remarkable and remarkably short set of specific sections on the following:

  • (Part VII) Comprehensive approach to One Health;
  • (Part VIII.) Pandemic-related access and benefit sharing (ABS);
  • (Part IX.) Scientific and technical cooperation and communication;
  • (Part X.) Measures to foster health and science literacy, including addressing mis-information, dis-information and false or misleading information.

Sitting here in limbo…

Let us admit that many important elements are covered by this compilation. So why was the overwhelming mood of the members of the INB, during the past session, rather one of hesitation, disorientation and search for guidance by the Bureau?

The answer is simple, and the missing centre piece of the “Draft annotated outline” is evident: The INB has not yet decided which direction its further work shall take. The debates of last year’s World Health Assembly Special Session on a “pandemic treaty” concluded in the non-decision to “draft and negotiate a WHO convention, agreement or other international instrument on pandemic prevention, preparedness and response, with a view to adoption under Article 19, or under other provisions of the WHO Constitution as may be deemed appropriate by the INB”.

Since then, the main options are known, and they have been outlined again in a document provided by the WHO Secretariat for last week’s session (Document A/INB/1/INF./1, “Secretariat information paper on the provisions of the WHO Constitution under which the instrument could be adopted”):

  • The Health Assembly may adopt conventions or agreements, per Article 19
  • The Health Assembly may adopt regulations, per Article 21
  • The Health Assembly may make recommendations, per Article 23

The elephant…

In other words: The INB has still to deal with the elephant in the room and to decide if it goes for compiling a compendium of non-binding recommendations that member states might consider (this is what is to be expected from a WHA resolution based on Article 23 of the WHO Constitution), or for a new international legal instrument (convention or agreement based on Article 19 ) that, if it is approved by the World Health Assembly, shall be signed and ratified by national governments and eventually taken up in national legislation, to define governments’ binding obligations related to pandemic prevention, preparedness and response in their own country and internationally. The review of the International Health Regulations (an instrument based on Article 21 of the WHO Constitution) will be undertaken in a parallel process, by a new WHO “Working Group on IHR amendments” (WGIHR), as decided by the recent 75th World Health Assembly (document A75/17).

If the INB decides to limit its mandate to framing a set of non-binding recommendations, by drafting a World Health Assembly resolution, the compilation already achieved and presented in the “Draft annotated outline” can be easily kept as it is and even further expanded, and we might end with some hundred individual recommendations in all the fields already outlined. We have seen such compendium resolutions times and again.

However, going in this direction would kill the entire dynamic and all the expectations created when WHO members agreed in December to set up an Intergovernmental Negotiating Body (some of them still dare to call the expected outcome a “pandemic treaty”, as we do).

The parties of the Convention shall…

All explicit or informal “friends of a pandemic treaty” count on the INB to forge such a new international convention or agreement. And this needs the step from compilation to negotiation, from the technical to the political, from compiling to fully and carefully assessing the current list of potential “substantive elements” (while still keeping it open for new proposals) from the perspective of negotiating a legal instrument.

If the INB dares to start negotiating a convention or agreement, the question for the negotiators will be a simple one: Which specific matters and related member states’ obligations in the field of pandemic prevention, preparedness, response and recovery in their own country and internationally shall be ruled/regulated by this new international legal instrument, in addition and complementary to already existing national legislation and international instruments?  Difficult decisions will still to be taken, and the outcome of the negotiations is open, for many reasons. More about this soon, when we (hopefully, finally) know the direction.

Go for it

The good news is that a decision on the “Identification of the provision of the WHO Constitution under which the instrument should be adopted” is on the agenda of the second INB session scheduled for mid-July (document A/INB/1/6 Rev.1, Timeline and deliverables). This will hopefully be the end of hesitation and the moment of taking a decision.

This decision is indeed highly needed to overcome the current vacuum and lack of direction. And its needs to be taken now: Will the INB dare to become a proper “Negotiating Body”, or will it turn into a drafting group for another long paper nobody will care about?

Our recommendation to the INB: Go for it. Dare to start proper negotiations. And, doing so, continue and expand the spirit of transparency and inclusiveness that was expressed by many delegates and the Bureau at last week’s session, and allow civil society to watch your deliberations and to contribute to them.

Thomas Schwarz, Executive Secretary
Medicus Mundi International – Network Health for All

See also:

Feedback is welcome, either via the mailing lists through which this blog was initially shared (“G2H2 members” and Google groop “Pandemic Treaty Advocacy”) or by e-mail to schwarz@medicusmundi.org. Thank you! And watch out for the “stakeholders consultation” by the INB on Wednesday 15 June.

Photo of the elephant: Thanks to Kaffeebart/Unsplash

Negotiating a pandemic treaty: Of cultivation and sovereignty
(part II of this blog), 19 July