Proposal For Negotiating Text of the WHO Pandemic Agreement

Here is the latest version of what most people inaccurately refer to as the "Pandemic Treaty." PLEASE do not get lost in the details. Be sure to read Chapter III and comprehend the bigger picture.

On October 30, 2023, the Intergovernmental Negotiating Body published the latest “Proposal for Negotiating Text of the Pandemic Agreement.”

https://apps.who.int/gb/inb/pdf_files/inb7/A_INB7_3-en.pdf

Proposal For Negotiating Text Of The Who Pandemic Agreement

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This draft text is to be considered by the seventh meeting of the INB for conversion into a formal negotiating text. The seventh meeting of INB is to be held at the WHO Headquarters, Geneva from 6-10 November.

The Third World Network is not happy with this document:

The draft negotiating text on the pandemic instrument released by the Bureau of the Intergovernmental Negotiating Body (INB) is unbalanced, essentially serving the interest of developed countries without any concrete deliverables on equity.

TWN learned from sources that the draft negotiating text is essentially prepared by the Secretariat in discussion with the Bureau. The finalisation of the draft negotiating text involved negotiations among the members of the Bureau. This in a way reaffirms the concern that the draft negotiating text reflects the individual and collective negotiating strength of Bureau members rather than objectivity based on the discussions in the formal and informal meetings of the INB.

Starting negotiations on this draft negotiating text without amending the same by incorporating text proposals from Member States will be detrimental to an equity-based pandemic PPRR regime.

https://twn.my/title2/health.info/2023/hi231006.htm

Geneva Health Files had this to say…

After more than two years of discussions on what countries would like to see in a Pandemic Accord, the Negotiating Text from the Bureau of the Intergovernmental Negotiating Body set up to broker this new instrument, has sought to strike a balance to in order to first draw countries into negotiations – but is being perceived as unbalanced and one-sided with a focus on prevention relative to obligations on response, diplomats said.

https://genevahealthfiles.substack.com/p/pandemic-agreement-negotiating-text-equity-inb

The Center For International Law at the National University of Singapore:

It is hard to see how the agreement will be able to make any effective change in global preparedness and response without massive support to developing countries in building and enhancing national and regional public health capacities.

https://cil.nus.edu.sg/publication/negotiating-text-of-the-who-pandemic-agreement-commentary-by-ayelet-berman-and-kriti-sharma/

https://cil.nus.edu.sg/wp-content/uploads/2023/10/CIL_Global-Health-Law-Notes_161023_WHO-Negotiating-Draft_FINAL.pdf

Please realize the true objective and scope of this proposal:

Article 2. Objective and scope

2. In furtherance of its objective, the WHO Pandemic Agreement applies at all times.

WE MUST NOT ALLOW THE WORLD HEALTH ORGANIZATION TO CREATE YET ANOTHER “CONFERENCE OF THE PARTIES” THAT IS EMPOWERED TO MAKE DECISIONS ON OUR BEHALF WITHOUT OUR CONSENT.

Chapter III.

Institutional arrangements and final provisions

Article 21. Conference of the Parties

1. A Conference of the Parties is hereby established. The Conference of the Parties shall be comprised of delegates representing the Parties to the WHO Pandemic Agreement. Only delegates representing Parties will participate in any of the decision-making of the Conference of the Parties. The Conference of the Parties shall establish the criteria for the participation of observers at its proceedings.

2. With the aim of promoting the coherence of the Conference of the Parties and the Health Assembly, as well as coherence in respect of relevant instruments and mechanisms within the framework of the World Health Organization, the Conference of the Parties shall operate in coordination with the Health Assembly. In particular, the Conference of the Parties shall hold its regular sessions immediately before or after regular sessions of the Health Assembly, and in the same location and venue as the Health Assembly, where feasible.

3. The first session of the Conference of the Parties shall be convened by the World Health Organization not later than one year after the entry into force of the WHO Pandemic Agreement.

4. Following the first session of the Conference of the Parties:

(a) subsequent regular sessions of the Conference of the Parties shall be held annually; and

(b) extraordinary sessions of the Conference of the Parties shall be held at such other times, without reference to the regular sessions of the Health Assembly, as may be deemed necessary by the Conference of the Parties, or at the written request of any Party, provided that, within six months of the request being communicated to them by the Secretariat, it is supported by at least one third of the Parties.

5. The Conference of the Parties shall adopt by consensus its Rules of Procedure at its first session.

6. The Conference of the Parties shall by consensus adopt financial rules for itself as well as governing the funding of any subsidiary bodies of the Conference of the Parties that are or may be established, as well as financial provisions governing the functioning of the Secretariat. It shall also adopt a biennial budget.

7. The Conference of the Parties shall keep under regular review the implementation of the WHO Pandemic Agreement and take the decisions necessary to promote its effective implementation, and may adopt amendments, annexes and protocols to the WHO Pandemic Agreement, in accordance with Articles 28, 29 and 30 herein. To this end, it shall:

(a) consider reports submitted by the Parties in accordance with Article 23 herein and adopt regular reports on the implementation of the WHO Pandemic Agreement;

(b) oversee any subsidiary bodies, including by establishing their rules of procedure and working modalities;

(c) promote and facilitate the mobilization of financial resources for the implementation of the WHO Pandemic Agreement, in accordance with Article 20 herein;

(d) request, where appropriate, the services and cooperation of, and information provided by, competent and relevant organizations and bodies of the United Nations system and other international and regional intergovernmental organizations and nongovernmental organizations and bodies as a means of strengthening the implementation of the WHO Pandemic Agreement; and

(e) consider other action, as appropriate, for the achievement of the objective of the WHO Pandemic Agreement in the light of experience gained in its implementation.

8. The Conference of the Parties shall keep under regular review, every three years, the implementation and outcome of the WHO Pandemic Agreement and any related legal instruments that the Conference of the Parties may adopt, and shall make the decisions necessary to promote the effective implementation of the WHO Pandemic Agreement.

9. The Conference of the Parties shall establish subsidiary bodies to carry out the work of the Conference of the Parties, as it deems necessary, on terms and modalities to be defined by the Conference of the Parties. Such subsidiary bodies may include, without limitation, an Implementation and Compliance Committee, a panel of experts to provide scientific advice and a WHO PABS System Expert Advisory Group.

Article 22. Right to vote

1. Each Party to the WHO Pandemic Agreement shall have one vote in the Conference of the Parties, except as provided for in paragraph 2 of this Article.

2. Regional economic integration organizations, in matters within their competence, shall exercise their right to vote with a number of votes equal to the number of their Member States that are Parties to the WHO Pandemic Agreement, duly accredited and present during the voting. Such an organization shall not exercise its right to vote if any of its Member States exercises its right, and vice versa.

Article 23. Reports to the Conference of the Parties

1. Each Party shall submit to the Conference of the Parties periodic reports on its implementation of the WHO Pandemic Agreement, which shall include the following:

(a) information on good practices, legislative, executive, administrative or other measures taken to implement the WHO Pandemic Agreement;

(b) information on any constraints or difficulties encountered in the implementation of the WHO Pandemic Agreement and on the measures taken or under consideration to overcome them;

(c) information on implementation support received under the WHO Pandemic Agreement; and

(d) other information as required by specific provisions of the WHO Pandemic Agreement.

2. The frequency, conditions and format of the reports, including periodic reports, submitted by the Parties shall be determined by the Conference of the Parties at its first session, with the aim of facilitating reporting by the Parties and avoiding duplications. These reports shall be drawn up in a clear, transparent and exhaustive manner, without prejudice to respect for applicable rules on confidentiality, privacy and data protection.

3. The Conference of the Parties shall adopt appropriate measures to assist Parties, upon request, in meeting their obligations under this Article, paying particular attention to the needs of developing country Parties.

4. The periodic reports submitted by the Parties shall be made publicly available online by the Secretariat.

Article 24. Secretariat

1. A Secretariat for the WHO Pandemic Agreement is hereby established. Secretariat functions for the WHO Pandemic Agreement shall be provided by the World Health Organization.

2. Secretariat functions shall be to:

(a) provide administrative and logistic support to the Conference of the Parties for the purpose of the implementation of this Agreement, and to make arrangements for the sessions of the Conference of the Parties and any subsidiary bodies and to provide them with services, as required;

(b) transmit reports and other relevant information regarding the implementation of this Agreement received by it pursuant to this Agreement;

(c) provide support to the Parties, upon request, particularly developing country Parties and Parties with economies in transition, in implementing the WHO Pandemic Agreement, including the compilation and communication of information required in accordance with the provisions of the WHO Pandemic Agreement or pursuant to requests of the Conference of the Parties;

(d) prepare reports on its activities under the WHO Pandemic Agreement under the guidance of the Conference of the Parties, and to submit them to the Conference of the Parties;

(e) ensure, under the guidance of the Conference of the Parties, the necessary coordination with competent international and regional intergovernmental organizations and other bodies;

(f) enter, under the guidance of the Conference of the Parties, into such administrative or contractual arrangements as may be required for the effective discharge of its functions;

(g) cooperate and coordinate with other United Nations entities in related areas; and (h) perform other secretariat functions specified by the WHO Pandemic Agreement and such other functions as may be determined by the Conference of the Parties.

Article 25. Relationship with other international agreements and instruments

1. The implementation of the WHO Pandemic Agreement shall be guided by the Charter of the United Nations and the Constitution of the World Health Organization.

2. The Parties recognize that the WHO Pandemic Agreement and other relevant international instruments, including the International Health Regulations, should be interpreted so as to be complementary and compatible. The provisions of the WHO Pandemic Agreement shall not affect the rights and obligations of any Party under other existing international instruments.

3. The provisions of the WHO Pandemic Agreement shall in no way affect the ability of Parties to enter into bilateral or multilateral agreements, including regional or subregional agreements, on issues relevant or additional to the WHO Pandemic Agreement, provided that such agreements are compatible with their obligations under the WHO Pandemic Agreement. The Parties concerned shall communicate such agreements to the Conference of the Parties, through the Secretariat.

Article 26. Reservations

No reservations may be made to the WHO Pandemic Agreement.

Article 27. Withdrawal

1. At any time after two years from the date on which the WHO Pandemic Agreement has entered into force for a Party, that Party may withdraw from the WHO Pandemic Agreement by giving written notification to the Depositary.

2. Any such withdrawal shall take effect upon expiry of one year from the date of receipt by the Depositary of the notification of withdrawal, or on such later date as may be specified in the notification of withdrawal.

3. Any Party that withdraws from the WHO Pandemic Agreement shall not be considered as having also withdrawn from any protocol to which it is a Party, or from any related instrument, unless such a Party formally withdraws from such other instruments and does so in accordance with the relevant terms, if any, thereof.

Article 28. Amendments

1. Any Party may propose amendments to the WHO Pandemic Agreement. Such amendments shall be considered by the Conference of the Parties.

2. Amendments to the WHO Pandemic Agreement shall be adopted by the Conference of the Parties. The text of any proposed amendment to the WHO Pandemic Agreement shall be communicated to the Parties by the Secretariat at least six months before the session at which it is proposed for adoption. The Secretariat shall also communicate proposed amendments to the signatories of the WHO Pandemic Agreement and, for information, to the Depositary.

3. The Parties shall make every effort to adopt any proposed amendment to the WHO Pandemic Agreement by consensus. If all efforts at consensus have been exhausted and no agreement has been reached, the amendment shall as a last resort be adopted by a three-quarters majority vote of the Parties present and voting at the session. For the purposes of this Article, Parties present and voting means Parties present and casting an affirmative or negative vote. Any adopted amendment shall be communicated by the Secretariat to the Depositary, who shall circulate it to all Parties for acceptance.

4. Instruments of acceptance in respect of an amendment shall be deposited with the Depositary. An amendment adopted in accordance with paragraph 3 of this Article shall enter into force, for those Parties having accepted it, on the ninetieth day after the date of receipt by the Depositary of an instrument of acceptance by at least two thirds of the Parties to the WHO Pandemic Agreement.

5. The amendment shall enter into force for any other Party on the ninetieth day after the date on which that Party deposits with the Depositary its instrument of acceptance of the said amendment.

Article 29. Annexes

1. Annexes to the WHO Pandemic Agreement and amendments thereto shall be proposed, adopted and shall enter into force in accordance with the procedure set forth in Article 28 herein.

2. Annexes to the WHO Pandemic Agreement shall form an integral part thereof and, unless otherwise expressly provided, a reference to the WHO Pandemic Agreement constitutes at the same time a reference to any annexes thereto.

3. Annexes shall be restricted to lists, forms and any other descriptive material relating to procedural, scientific, technical or administrative matters, and shall not be substantive in nature.

Article 30. Protocols

1. Any Party may propose protocols to the WHO Pandemic Agreement. Such proposals will be considered by the Conference of the Parties.

2. The Conference of the Parties may adopt protocols to the WHO Pandemic Agreement. In adopting these protocols, every effort shall be made to reach consensus. If all efforts at consensus have been exhausted and no agreement has been reached, the protocol shall as a last resort be adopted by a three-quarters majority vote of the Parties present and voting at the session. For the purposes of this Article, Parties present and voting means Parties present and casting an affirmative or negative vote. In the event that a protocol is proposed for adoption under Article 21 of the Constitution of the World Health Organization, it shall further be considered for adoption by the Health Assembly.

3. The text of any proposed protocol shall be communicated to the Parties by the Secretariat at least six months before the session at which it is proposed for adoption.

4. States that are not Parties to the WHO Pandemic Agreement may be parties to a protocol thereof, provided the protocol so provides.

5. Any protocol to the WHO Pandemic Agreement shall be binding only on the parties to the protocol in question. Only parties to a protocol may take decisions on matters exclusively relating to the protocol in question.

6. The requirements for entry into force of any protocol shall be established by that instrument.

Article 31. Signature

The WHO Pandemic Agreement shall be open for signature by all Members of the World Health Organization, by States that are not Members of the World Health Organization but are member or non-member observer states of the United Nations, and by regional economic integration organizations. The WHO Pandemic Agreement shall be open for signature at the World Health Organization headquarters in Geneva, immediately following its adoption by the World Health Assembly at the Seventy-seventh World Health Assembly, from XX [May] 2024 to XX [June] 2024, and thereafter at United Nations Headquarters in New York, from XX [June] 2024 to XX [June] 2025.

Article 32. Ratification, acceptance, approval, formal confirmation or accession

1. The WHO Pandemic Agreement shall be subject to ratification, acceptance, approval or accession by States and to formal confirmation or accession by regional economic integration organizations. The WHO Pandemic Agreement shall be open for accession from the day after the date on which the WHO Pandemic Agreement is closed for signature. Instruments of ratification, acceptance, approval, formal confirmation or accession shall be deposited with the Depositary.

2. Any regional economic integration organization that becomes a Party to the WHO Pandemic Agreement without any of its Member States being a Party shall be bound by all the obligations under the WHO Pandemic Agreement. In the case of those regional economic integration organizations for which one or more of its Member States is a Party to the WHO Pandemic Agreement, the regional economic integration organization and its Member States shall decide on their respective responsibilities for the performance of their obligations under the WHO Pandemic Agreement. In such cases, the regional economic integration organization and its Member States shall not be entitled to exercise rights under the WHO Pandemic Agreement concurrently.

3. Regional economic integration organizations shall, in their instruments relating to formal confirmation or in their instruments of accession, declare the extent of their competence with respect to the matters governed by the WHO Pandemic Agreement. These organizations shall also inform the Depositary, who shall in turn inform the Parties, of any substantial modification in the extent of their competence.

Article 33. Entry into force

1. The WHO Pandemic Agreement shall enter into force on the thirtieth day following the date of deposit of the fortieth instrument of ratification, acceptance, approval, formal confirmation or accession with the Depositary.

2. For each State that ratifies, accepts or approves the WHO Pandemic Agreement or accedes thereto after the conditions set forth in paragraph 1 of this Article for entry into force have been fulfilled, the WHO Pandemic Agreement shall enter into force on the thirtieth day following the date of deposit of its instrument of ratification, acceptance, approval or accession.

3. For each regional economic integration organization depositing an instrument of formal confirmation or an instrument of accession after the conditions set forth in paragraph 1 of this Article for entry into force have been fulfilled, the WHO Pandemic Agreement shall enter into force on the thirtieth day following the date of deposit of its instrument of formal confirmation or of accession.

4. For the purposes of this Article, any instrument deposited by a regional economic integration organization shall not be counted as additional to those deposited by Member States of that regional economic integration organization.

Article 34. Settlement of disputes

1. In the event of a dispute between two or more Parties concerning the interpretation or application of the WHO Pandemic Agreement, the Parties concerned shall seek through diplomatic channels a settlement of the dispute through negotiation or any other peaceful means of their own choice, including good offices, mediation or conciliation. Failure to reach a solution by good offices, mediation or conciliation shall not absolve the parties to the dispute from the responsibility of continuing to seek to resolve it.

2. When ratifying, accepting, approving, formally confirming or acceding to the WHO Pandemic Agreement, or at any time thereafter, a Party which is not a regional economic integration organization may declare in writing to the Depositary that, for a dispute not resolved in accordance with paragraph 1 of this Article, it accepts, as compulsory ipso facto and without special agreement, in relation to any Party accepting the same obligation:

(a) submission of the dispute to the International Court of Justice; and/or

(b) ad hoc arbitration in accordance with procedures to be adopted by consensus by the Conference of the Parties. A Party which is a regional economic integration organization may make a declaration with like effect in relation to arbitration in accordance with the procedures referred to in paragraph 2(b) of this Article.

3. The provisions of this Article shall apply with respect to any protocol as between the parties to the protocol, unless otherwise provided therein.

Article 35. Depositary

The Secretary-General of the United Nations shall be the Depositary of this Agreement and amendments thereto and of any protocols and annexes adopted in accordance with the terms of this Agreement.

Article 36. Authentic texts

The original of this Agreement, of which the Arabic, Chinese, English, French, Russian and Spanish texts are equally authentic, shall be deposited with the Secretary-General of the United Nations.

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James Roguski

The old system is crumbling, and we must build its replacement quickly.

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