New Pandemic Treaty Could Contain a Mix of Binding and Non-Binding Measures, Says Senior US Official
Loyce Pace speaking Wednesday 20 July with a small group of journalists at the US Mission in Geneva

The United States is open to drafting a pandemic accord that contains both legally binding and voluntary elements, according to Loyce Pace, assistant secretary for global affairs at the US Department of Health & Human Services.

Pace also told a small group of journalists Wednesday at the US Mission to the UN in Geneva that “the discussions are going quite well” on a broad scope of issues related to the prospective accord. Her comments coincided with a week-long meeting of the WHO’s Intergovernmental Negotiating Body (INB) in Geneva.

“I think we’re open as a US government to a mix of binding and non binding options as part of any final product. And really, in the end, we want to be a part of the solution,” Pace said.

The meeting came as delegates from WHO’s member nations met behind closed doors to decide whether a new pandemic agreement should take shape as a convention, agreement or regulation under the terms of two different articles of WHO’s Constitution.

If the accord is shaped under Article 19 of the Constitution, it would be a legally binding convention or agreement. It were done under Article  21, it would be a regulation – but that is the leastly likely choice since the International Health Regulations already exist and are being amended in a parallel process.

In either case, the new instrument could contain a mix of legally binding commitments and recommendations, according to a background paper prepared by WHO’s legal team, which is advising the INB negotiators.

The paper says the World Health Assembly could adopt a legally binding accord under Article 19 or 21 that contain both “legally binding and non-legally binding provisions, with the non-binding provisions being, for example, recitals, principles, recommendations or aspirations. This practice is, in fact, standard both in WHO and with other international instruments.”

Sharing pathogens genomic sequences in exchange for benefits 

Pace did not answer directly when asked to comment on details of the US position regarding developing country demands that the treaty include provisions that they should receive “benefits” for sharing of pathogens’ genomic data with drug development researchers.

At Tuesday’s public INB session, however, her colleague Colin McIff, deputy director of global affairs at the US Department of Health and Human Services, said access to pathogen sequences should not be linked to the promise of benefits from medicines produced in a “transactional way.”

“The sharing of benefits can be seen as a means to achieving equitable pandemic preparedness and response,” said McIff. “But our concern is that … if we continue to link access and benefits in a transactional way, that’s not really conducive to meeting public health needs, and improving pandemic preparedness.” 

Pharmaceutical companies were able to rapidly map out vaccines for the SARS-CoV2 virus because the virus sequence was shared early on by researchers via open platforms.

But that kind of free sharing could be curbed by the Convention on Biodiversity when it meets in December in Montreal.  The CBD is considering proposals to  explicitly incorporate reference to the sharing of pathogens genetic data or “information”  into the existing Nagoya Protocol on Access to Genetic Resources.

That would mean countries sharing the genetic sequence of a new or emerging pathogen could then demand they be compensated by pharma researchers that use the information to make new drugs or vaccines.

Tracking international agreements

Loyce Pace

“One of the things that we’re tracking is how other international agreements or dialogues are being brought into this process,” said Pace. “I think it’s important for the INB to acknowledge those various discussions, whether it is Nagoya, the WTO, or others. We have to be careful to keep those discussions in those places.”

The United States wants to focus the conversation in Geneva on the “core objectives around pandemic preparedness and response and ensure that it’s scoped appropriately to address the problem at hand,” Pace added, “not only around sharing of samples and information, but also about equitable access to innovations and other key priorities like one health and other issues that I know you’ve heard over the past couple of days.”

Additionally, the US is leading the charge on targeted revisions to the 2005 IHR rulebook that governs countries’ present-day responses to health emergencies. Those rules were widely criticized during the pandemic as slow and ineffective, prompting the World Health Assembly to agree in May to update them. 

“The US is still focused on how we amend the existing International Health Regulations, which is a conversation happening outside of the intergovernmental negotiating body, but obviously involving many of the same players,” said Pace.

“The United States stands ready to be a part of solving the problem of pandemic preparedness and response problem. We weren’t quite there when it came to COVID-19. And we want to correct that collectively with other WHO member states.”

Civil society and private sector should have a seat at the INB table 

Another topic being discussed behind closed doors this week by the INB negotiators is a proposed expansion of the range of private sector and civil society groups that may observe and comment on the negotiations over the pandemic accords. 

Nearly 300 groups are already endorsed as “stakeholders” – including some civil society groups in “official relations” with WHO, as well as an additional layer of multilateral organizations including the African Union, International Monetary Fund, International Maritime Organization and International Civil Aviation Organization.

Pace, however, declined to elaborate on what criteria the US might endorse for choosing who else can join the table.

“The US has been pretty full throated about this, not just in the context of the INB, but just broadly with WHO,” she said. “We have to create space, not only for member states…including for small delegations, but also for civil society and the private sector, or other external stakeholders who need to be a part of this process.”

Asked whether those invited at the table would include a broader spectrum of civil society, e.g. environmental health groups, or more voices from big pharma and agri-business, Pace said only: “What remains to be seen is what the criteria will be or what the parameters or borders are.”

Commits to continuing US work on sexual and reproductive health rights 

Separately, Pace criticized the recent US Supreme Court ruling on abortion as one “which essentially struck down the constitutional right to abortion, safe and legal abortion for women in our country.”

But she said her department remains committed to promoting sexual and reproductive health rights for women worldwide, through its engagements with WHO, UNAIDS, UN Women and the UN Population Fund.

“Those partnerships remain strong. And that work still continues when it comes to sexual and reproductive health and rights,” she said, “alongside many other health priorities that lead us to accomplishing this end goal of universal health coverage.”

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