Draft Resolution on Pandemic Agreement concluded

WHO logo. Wikimedia Commons.

Geneva, 18 May – Last week WHO Member States concluded the negotiations on the draft text for the resolution to adopt the WHO Pandemic Agreement (PA) by the World Health Assembly that will meet from 19 to 25 May.

However, certain procedural questions emerge regarding the timeline available for Member States to communicate their actions relating to accepting the Agreement through their respective national processes, as the WHO Secretariat upload a new information document (A78/INF./9).

The information document is titled “WHO Pandemic Agreement: procedural matters” and these questions are expected to be addressed during the 78th Session of World Health Assembly (WHA78) that begins on 19 May in Geneva. The WHA78 will be considering the adoption of both Draft Resolution as well as WHO PA as a matter of priority.

Procedural questions arose as the information document discusses the implication of Article 20 of the WHO Constitution on the adoption of the PA in contrast to what has been agreed in the agreement itself and the Draft Resolution.

According to Article 20, within 18 months of the adoption of a new international convention or agreement under Article 19 of the Constitution, WHO Member States shall take actions relative to acceptance of such instrument. However, according to the PA and the Draft Resolution, the PA will be open to signature and other actions such as ratification and acceptance, only after the development of the annex on the pathogen access and benefit sharing system and the incorporation of the same into the text of the PA.

With such development of the annex anticipated to take the next 12 months, Member States are confused as to what action they could possibly take to “communicate acceptance or rejection” within next 18 months. For most of them it is not possible to decide whether to be a Party to the PA or not, without knowing the outcomes of obligations and rights under the PABS annex.

Paragraph 10 of the information document states:

“As the WHO Pandemic Agreement will not open for signature until certain conditions are satisfied (as further discussed in paragraph 11 below), there may be different views among Member States regarding the date on which the above-mentioned “action” is required, and what such action may be. The view could be taken that Article 20 is not a constraint, it merely states an undertaking that some sort of “action” will be taken within a time frame; it is up to each Member state to determine what that “action” could be.”

According to a few delegations, the timeline of 18 months in Article 20 will only be triggered after the adoption of the PABS annex. The current adoption of the PA is to send a positive message that Member States are committed to multilateralism and to the process of concluding the PA.

“We just completed low hanging fruits and, with this adoption now, we aim to ensure they remain secured. It also allows us time to focus on the most crucial transactions governed under the pandemic agreement, i.e. sharing of pathogens and sequences as well as required health products to prevent pandemics”, according to a source.

Member States are currently weighing their options on whether they should reopen the negotiations for the draft resolution or just simply state their understanding about the application of Article 20 of the WHO Constitution with respect to the PA.

The PA and Draft Resolution will be considered under Agenda Item 16.2 of Pillar 2: “One billion more people better protected from health emergencies” in the upcoming WHA78. This agenda item will not only be addressed in Committee A of WHA, but also in Plenary Session as well. The agenda item is scheduled for the first two days of WHA78.

Meanwhile the WHO Secretariat has also circulated a white paper explaining the process of considering agenda item 16.2. According to the white paper, the contents have been produced on request of the delegations and has the backing of the Presidential Nominee for WHA78.

The Draft Resolution

The preamble of the Draft Resolution has 5 paragraphs with 15 operative paragraphs.

The preambular paragraphs reaffirm the need for a legally binding international instrument on pandemic prevention, preparedness and response, in line with decisions SSA2(5) and WHA77(20) as well as coherence and complementarity with implementation of the International Health Regulations 2005 as amended last year.

The preamble recognizes the continuing threat of pathogens with pandemic potential which calls for enhancing pandemic prevention, preparedness and response and for refraining from taking measures that adversely affect such prevention, preparedness and response.

The key elements of the draft resolution’s operative paragraphs (OP) are as follows:

OP1 – Adoption of WHO PA under Article 19 of the Constitution of WHO

OP2 – Recognizes sovereign rights of Parties to consider the WHO PA in accordance with their national constitutional process

OP3 – Opening up of WHO PA for signatures

OP4 – Calls upon states and regional economic integration of organisations to sign and ratify

OP5 – Urges to take measures to further WHO PA’s objective and eventual implementation, guided by equity and the principle of solidarity pending entry into force of WHO PA

OP6 – Urges to act provisionally in case of pandemic emergency pending entry into force of the agreement, and provides that such action will not be prejudicial to their position towards WHO PA

OP7 – Support for preparatory activities

OP8 – Calls upon the UN and other relevant international organisations to provide support

OP9 – Decides to establish an open-ended Intergovernmental Working Group (IGWG).

OP10- Organizational meeting and election of Bureau for IGWG

OP11 – Call for text proposals by Member States towards the development of the PABS Annex

OP12 – Affirmation of Member State led nature of the IGWG process, along with a decision to request expertise

OP13 – Recognition of the quadripartite (FAO, World Organisation for Animal Health, WHO, and UNEP) as relevant organisations for One Health Approach

OP14 – Recognition of sovereign rights over biological resources including for developing national access and benefit sharing laws

OP15 – Various request to WHO Director General

Committee A and WHA Plenary to adopt PA under Article 19 of WHO Constitution

Article 19 of the WHO Constitution means the PA would only become binding on Parties if States have considered the Agreement through their national constitutional process and communicated their acceptance to be bound by the Agreement.

Unlike the International Health Regulations 2005, there will be no automatic application of the PA on the WHO Member States, until they communicate acceptance under Article 20. While this already raises certain challenges for the ratification of the PA and its eventual entry into force, the rushed Intergovernmental Negotiating Body (INB) process has placed additional constraints on the entry into force of the Agreement. This is because according to operative paragraph 3 of the Draft Resolution and Article 31 of the PA, signature can be made to the Agreement only after adoption of the PABS Annex.

The adoption of the PA will go through a two-step process, whereby the Draft Resolution and PA text will be considered both in Committee A and the WHA Plenary, including through a high-level event.

According to the white paper, the consideration of agenda item 16.2 in Committee A is proposed to commence on Monday 19 May, immediately after the opening of the Committee. Member States and Associate Members will be given 2-3 minutes to make statements (2 minutes for individual States; 3 minutes for regional/group statements), while observers will be given 1 minute; UN and IGOs (1 minute); and NSAs in Official Relations (1 minute).

After all the interventions, the Chair intends to invite the Committee to note the report contained in document A78/10 (which in contains the draft PA); and to approve the Draft Resolution contained in document A78/10/Add.1. While Member States are expected to adopt the resolution by consensus, and thereby the draft PA, they may also make declarations or dissociations to a matter at issue “while not objecting to the resolution being recorded as taken by consensus.”

According to one delegate, “While it is very important to adopt the WHO PA by consensus, Member States have sovereign rights and are not prohibited from objecting to the adoption of the resolution.” The delegate added, “I respect the intention behind the white paper, and enthusiasm to build consensus, but the information provided is not fully correct.”

Following the approval of the draft resolution, Member States will also have the opportunity to make a 1-minute statement explaining any of their positions. Further, Committee A will submit the resolution and text of the WHO PA so approved to the Plenary for final adoption. The process is expected to seamlessly proceed without any major disruptions as Member States working through the INB and information consultations have agreed upon the draft text of both the PA and resolution to adopt the PA.

On 20 May morning at 9.00 am, the WHA will be invited to consider the report of Committee A concerning agenda item 16.2, the draft resolution and the text of the PA, as approved by Committee A, while at 9.30 am, a High-Level welcome will be held by the Director-General, which will include interventions from invited Heads of State and Government and other invited dignitaries. There is also a planned brief photo opportunity, to mark the occasion of the adoption of the PA in conjunction with this high-level welcome.

In the Plenary Session delegations will be able to provide explanations of positions, if any.

IGWG Process post-WHA78

According to the Draft Resolution, the IGWG should “draft and negotiate” the Annex to the PA described in Article 12 of the Agreement and submit the outcome to the Seventy-ninth World Health Assembly in 2026 for its consideration, as a matter of priority.

States and other regional economic integration organisations are invited by OP 11 of the Draft Resolution to “submit initial text proposals, in accordance with the provisions of Article 12 of the WHO Pandemic Agreement for the development of the draft Annex to the Pandemic Agreement described in Article 12 thereof before the second meeting of the IGWG or as decided by the IGWG at its organizational (first) meeting”. These proposals will be made public, unless proponents make a contrary request.

The IGWG is also mandated with other preparatory activities, however, such activities are to be facilitated only “subsequently” to submitting the PABS annex to WHA79. The only exception in this regard is the mandate of IGWG to develop a proposal for the terms of reference for the Coordinating Financial Mechanism of the PA, and the modalities for its operationalization and governance. In this regard the IGWG also has to cooperate with the States Parties Committee for the Implementation of the International Health Regulations 2005 (amended). These terms of reference and modalities are for consideration of the Conference of Parties, which will only commence after entry into force of the PA.

As a first step in its work, the IGWG shall hold its organizational meeting no later than 15 July 2025, in order to elect six officers tasked with equal responsibility in facilitating its work, namely two co-Chairpersons and four vice-Chairpersons, one from each of the six WHO regions.

The IGWG shall follow the modalities of engagement for relevant stakeholders of the INB, in conduct of its work. Experts may be requested by the IGWG to provide technical advice and inputs, as and when necessary, in particular with regard to the development of the PABS annex.

In order to provide the technical input and advice as may be requested by the IGWG, when necessary, the Director-General under OP15.4 is also requested “to organize technical work, engaging experts, consistent with WHO Regulations for Expert Advisory Panels and Committees, and in particular the principles set out in Article 4.2, in the areas set out in Article 12 of the WHO Pandemic Agreement, to inform and support the work of the IGWG, for the consideration of the IGWG, and to make that technical input and advice publicly available.”

According to certain delegations, the WHO Director-General needs to act only when requested by the IGWG. However, according to some others, the WHO Director-General can set up a panel of some experts much early on for this purpose, and when the IGWG requests input and advice, the panel can work without much delay. – Third World Network