The first day of WHO member state talks on a proposed new Pandemic Convention or Treaty opened with broad agreement that the new legal instrument should complement – but not repeat – provisions of the existing International Health Regulations – while respecting national sovereignty in terms of public health responses. 

But the hours of debate over the definitions, principles and scope of an initial “working draft” developed by a “Bureau” of six member states from every WHO region, reflected the enormity of the task they face in reaching beyond high-minded rhetoric about how the new instrument  should align to principles of equity, preparedness and “One Health”, to binding rules and obligations acceptable to all 194 WHO member states. 

Member states are meeting under the auspices of the second meeting of the WHO Intergovernmental Negotiating Body (INB) to try move along the initial framing of the new legal accord – which is expected to take two years or more to actually negotiate.

“The new instrument should seek to address clearly identified gaps that cannot be resolved through IHR amendments…  Otherwise there would be no need for a new instrument,” said Kenya’s delegate at the outset of the meeting – echoing a point that had wide agreement among member states. 

Other points that won wide agreement included the importance of linking the new accord to the fight against antimicrobial resistance as well as better application of “One Health” principles of preserving ecosystem balances that can also limit the spillover of animal pathogens into human communities.   

However fissures on other simmering issues, such as rights over R&D related to pandemic response as well as national rights to genomic sequences of pathogens, soon became apparent.  A range of Asian, African and Latin America  member states, including South Africa, stressed that public health responses to the pandemic, as well as “investments in research and development for countermeasures” should be “treated as public goods and accounted for as such.”

Genomic ‘information’ also sure to be a hot topic

South Africa, as well as other countries, including Malaysia, also stressed that pathogens’ genomic sequence data – or as Malaysia requested “genomic information” – should be shared in exchange for the promise of benefits from those entities, primarily pharma, which make use of such data to develop new vaccines and treatments then sold commercially. 

“It is critical for us to specify from the outset that data, and genomic sequencing sharing and benefits will be shared equitably,” South Africa’s delegate stated at the meeting. 

Those statements cut to the heart of a smoldering controversy over pending revisions in the Nagoya Protocol to the Convention on Biodiversity – to be considered at the Montreal Conference of Parties 5-15 December.  Those revisions could see the genomics information of pathogens included as part of a country’s biodiverse natural resources – entitling national governments to demand benefits if they share that genomics sequences or similar data with researchers for medicines and vaccines development. 

On the other end of the spectrum, a number of developed countries, including the European Union, stressed the importance of strengthening references to “better collaboration, surveillance and early detection”  – as key pillars of any new agreement.   

How legally ‘binding’ will the new instrument really be? 

At this week’s meeting member states have been asked to decide whether the new legal instrument would be formally positioned as a legally-binding convention under Article 19 of WHO’s Constitution, or new, legally binding regulations under Article 21. The implications of those choices are outlined in a WHO background document, made available to member states last week. 

Regardless of which route is chosen, the final document could still include a mix of “both legally binding and non-legally binding provisions, with the non-binding provisions being, for example, recitals, principles, recommendations or aspirations,” stated the background document, drafted by WHO’s legal team, noting that, “This practice is, in fact, standard both in WHO1 and with other international instruments.”

Speaking at the meeting, both Russia and China said that the final stance of member states on many of the articles contained in the working draft, may be based upon the final decision by member states of “how legally binding” the new instrument will indeed be. 

“Whether it’s under Article 19 or 21, should the nature of the instrument be a Framework Convention, containing only guidance in principle or a regulation with detailed and implementable actions?” China asked in Monday morning’s session.  

Added Russia, in the afternoon session.  “We must decide by the first of August what kind of document this will be,” although it added that “we see a general trend or direction that we’re moving in, looking at the structure of the document, which is a reminder of the Framework Convention on Tobacco Control.

“But all the same, we need some clarification.  Will there be another opportunity to comment on the content of the document after we adopt the decision on the fate of this document – of the kind of Article of the WHO Constitution that will be applied here?”

In terms of defining the new agreement’s scope, Beijing also recommended that the “Bureau conduct an in-depth investigation of the deficiencies found in the current pandemic and to past emergencies, and to analyze existing international instruments such as the IHR to clarify the issues to be addressed by the pandemic treaty.. In other words, the scope of work.”

That demand seemed to ignore the fact that no less than three external review bodies, including and IHR review committee, a WHO health emergencies review committee and the Independent Panel, have already conducted such reviews over the past two years. 

Wordsmithing – a massive task 

What remains clear is that the INB “Bureau” together with the WHO legal team face a massive task of redaction – not only of thorny substantive issues – but also of countless ‘editorial’ issues ‘related to definitions, organization and wordsmithing of the draft text – before it is submitted to member states as a “Zero Draft” over which countries would begin formal negotiations.   

Over the course of Monday, delegates from several dozen states went  paragraph by paragraph with proposed textual changes to what has been drafted by the INB “Bureau” as a preliminary, working draft.  

Many delegates requested extensive new framing terminology in the documents’  initial sections – to make stronger reference to equity, human and gender rights, for instance. 

At the same time, others pointed out that the lengthy preliminaries – which include both a Preamble, a Vision statement, followed by an Introduction – with a set of as yet incomplete definitions of terms including what constitutes a ‘Pandemic’ – was unduly bulky.

The document, its WHO drafters acknowledged, incorporated numerous texts and references not only from the WHO documents including the: IHR, FCTC, and Pandemic Influenza Preparedness Framework (the PIP), but also from the Paris Climate Agreement, the UN Framework Convention and Climate Change (UNFCCC) and the Convention on Biological Diversity, and the CBD’s related Nagoya Protocol.  

“It’s nice to have a living document.  It’s not quite a Zero draft,” said US Assistant Secretary for Global Affairs Loyce Pace, who attended the meeting along with Colin McIff, Deputy Director, of the US Health And Human Services Office of Global Affairs.  “The Preamble, vision Parts 1 and 2  overlap and risk being repetitive,” she added.  

“‘There is a saying that ‘less is more’ and we are inclined to think that a shorter and more targeted preamble could work better,” said New Zealand’s delegate, noting that some of the best known UN instruments like the UN Convention on the Law of the Sea include a preamble of less than a dozen paragraphs.