W.H.O. Attorney Admits ILLEGALITIES Possible? Says "Determinations of whether something is illegal is definitely in the hands of member states” Pandemic Treaty Legality Hotly Debated
The WHO INB (Pandemic Treaty body) met this week. Civil society told WHO that they are illogical rushing and it's ALL VOID due to lack of participation by all stakeholders. IT'S ILLEGAL. We AGREE!!!
Do you want to know what happened this week in the WHO Pandemic Treaty negotiations? Of course you do!
Get the scoop on what happened in the WHO INB 11 meeting this week below…
The whole concept of the pandemic treaty sucks. Stop the pandemic treaty!
Problem is they won’t stop!
On September 3, 4, 2024: WHO Hosted Informal Meetings For Treaty & INB 11
The World Health Organization (WHO) INTERGOVERNMENTAL NEGOTIATING BODY (INB) met September 3 & 4th for Pandemic Treaty informal meetings with experts.
This past weeks meeting also begin the long awaited “Legal Scrubbing”, a term meaning for the Member States to bring in their own legal experts to oversee the WHO Attorneys and if their interpretations of law on the pandemic treaty being legal under WHO constitution Article 19 or 21 hold any water.
Ask in all, we think the WHO’s Attorney Steven Soloman has a whacked interpretation of law and grossly overestimates the limits of WHO’s authority under WHO Constitution.
At least the WHO Attorney admitted he can’t decide if its legal or illegal because its 100% up to Member States to determine if it’s illegal. It is illegal isn’t it? Yes. It’s all illegal. IOJ is sticking with this as our official stance.
The current draft of the treaty/agreement/accord was created without all stakeholders having meaningful participation and as if that were not bad enough, its based in fear porn, pandemic product peddling and profiteering far more than science or a real need for the treaty.
Summary of the September 4, INB 11 meeting for the WHO Pandemic Treaty:
The interactive dialogue discusses the legal architecture for the proposal for the WHO pandemic agreement. The main question is how to preserve the package with time issues and ensure maximum participation.
The resource persons discuss the options of adopting the instrument under Article 19 or Article 21 of the WHO Constitution. They also explore the pros and cons of annexes and protocols, with some suggesting that annexes may be more cohesive and inclusive.
The importance of interpreting the treaty in good faith and considering the context of the WHO Constitution is highlighted. The conversation discussed the different legal mechanisms for the adoption and implementation of the pandemic treaty. The main options considered were Article 19 (conventions and agreements), Article 21 (regulations), and a combination of both.
The scope of Article 21 was debated, with some arguing that it is more limited than Article 19, while others believed that it can be interpreted broadly to include prevention, response, and preparedness measures. The potential inclusion of protocols and annexes was also discussed, with the suggestion that they could be adopted under Article 21. We are not convinced.
The importance of stakeholder involvement and the need for an independent mechanism to monitor implementation were highlighted. Overall, there was no clear consensus on the best legal approach, and member states were encouraged to be bold and creative in their decision-making, while WHO Legal Attorney said it was up to Member States to decide if illegal or not.
Takeaways
The main question is how to preserve the package with time issues and ensure maximum participation
There is a huge multi faceted debate between adopting the instrument under Article 19 or Article 21 of the WHO Constitution
Annexes may be more cohesive and inclusive compared to protocols
Interpreting the treaty in good faith and considering the context of the WHO Constitution is important The scope of Article 21 can be interpreted broadly to include prevention, response, and preparedness measures.
Protocols and annexes could be adopted under Article 21.
There is a question if 50 States adopted the treaty while 180 adopt PABS, it would result in a treaty vs regulation and how would it work?
Stakeholder involvement is important and can be facilitated through decision-making processes.
There is a need for an independent mechanism to monitor implementation of the treaty.
Member states should be bold and creative in their decision-making.
WHO Attorney admits the treaty may be declared illegal by Member States:
Quote from INB 11 Sept 4, 2024:
Delegate: That's why I need Steve's help to see if we run the risk of, you know, going into the road of illegal or unnecessarily undesirable legal options.
WHO Attorney Steve:
“Thanks very much. Happy to offer views on this to assist.
But determinations of whether something is illegal is definitely in the hands of member states.”
Watch WHO Attorney admit “determinations of whether something is illegal is definitely in the hands of member states” below:
Well isn’t this interesting that the WHO attorney says that it is only the member states which have the authority to decide whether the WHO treaty (or anything WHO does is legal or illegal?
Interest of Justice thinks the pandemic treaty is unlawful and illegal, just like all of WHO’s pandemic declarations and measures…
THEY ARE BARRELING FORWARD FAST, SO IS THERE ANY REAL HOPE?
Interestingly, the WHO internal Oversight (IO) has recently referred IOJ’s 3 year unanswered legal disputes to the national authorities to determine if the PCR test and the Experimental WHO EUL COVID-19 non-vaccines may violate international law, including Nuremberg Code and constitute crimes against humanity. Even the IHR amendments case is referred to national authorities! We are getting closer to justice!
We Stopped The WHO Pandemic Treaty in Costa Rica, & you can do the same!
(It wasn’t easy, but if you want to do the same hard work - we will help you save your country!)
This week WHO & Member State countries were very busy discussing the need for adjustment of the Pandemic Treaty in light of the IHR.
Quotes from INB 11 Sept 4:
"The instrument bears the danger of fragmentation"
"The concept of complementarity and coherence has come up a couple of times"
"There are pros, there are cons. I think we are overstating the universality aspect"
"Annexes are adopted by the conference of the parties and enter into force like a WHO regulation."
"Non-binding instruments can be adopted together with the treaty to indicate the political agreement of the parties."
"Once the treaty enters into force, it becomes a living instrument in the hands of its parties."
IOJ is drafting a new demand to protest the Pandemic Treaties legalities under Article 19 and 21. Keep your eyes peeled - we plan at least one more protest of the pandemic treaty based on the revelations made in the meeting! We expect to post it on our Sue the WHO Initiative Substack tomorrow. We can’t & won’t let them win. It’s too important!
Subscribe to Sue the WHO Initiative here - Big bold moves are coming asap:
We presume you are in agreement that the WHO should be overseen and checked up and down for legality… Especially on PCR to diagnose a non existent disease and mRNA “vaccines” which are not vaccines. Please support our mission if you are able!
If your country hasn’t dropped the treaty yet like Costa Rica, and you are part of a group or are forming a group of concerned citizens, please contact us contact@interestofjustice.org and we can collaborate on how we can best help you!
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For those crazy die hards like us to actually want to read the entire script from the WHO INB September 3-4, 2024, it’s posted below for you!
Full video of the in depth pandemic treaty legal discussion for the diehards:
Chapters
00:00Introduction and Opening Remarks
15:25Resource Persons' Perspectives on Legal Architecture
36:37Discussion on Annexes and Protocols
53:02Interpreting the Treaty and Considering the Context
58:17Annexes and their Adoption
01:00:09Non-binding Instruments
01:01:37Living Instrument in the Hands of Parties
01:05:07Protocol under Article 21
01:07:29Navigating Complexity and Effectiveness
01:09:24Flexibility in Entry into Force
Full Transcript INB 11 Sept 4, 2024 -legal analysis of the Pandemic Treaty:
IOJ Media (00:00.066)
Good morning. Good morning, participants online and elsewhere. Not only good morning, but greetings for those that are already in the afternoon or even evening. It's our intention to start. We have the co -chair, Ambassador Anclair, online. And I wait for her to formally initiate this discussion.
We are benefiting today for the second time of this interactive dialogue in order to discuss the legal architecture for the proposal for the WHO pandemic agreement. Very important issue. Unfortunately, we only have two hours, so every minute counts. So please take your seat. Those online, be ready. We're very grateful to the resource people that were able to be with us today.
and we tend to benefit from their perspectives and views in order to allow us to be more comfortable in the options that we have ahead of us for the legal architecture.
I have on my left co -chair, precious Matsoso, who is going to lead the discussion together with Ambassador Ramadan at 11 on yet another important issue and related to this issue, which is the need for adjustment in light of the IHR.
Anclare, are you with us? Yes. Yes, I am. Good morning. Good morning to everybody. Can you hear me? We can. We unfortunately do not. I do not have all these screens so I cannot see you on screen. OK, I can see you. OK, good. No, I think we're still waiting for some help for the screens to be. But I think we can proceed.
Maybe you could indicate because we are looking forward also to a brief presentation from the Secretariat. So back to you, Anne -Claire. OK, thank you. Thank you very much, Good morning, everybody. And welcome to the second day of the Interactive Dialogue. As it was mentioned by Ambassador Thauvin, yesterday we had a very interesting session on the PAPS on Article 12. And today we will have
different sessions. The first one is dedicated to the legal architecture. Just to introduce the point, and before that, I would like to warmly welcome the resource persons who have responded positively and who are in the room and online. Thank you very much.
Just to introduce the topic, the last version of the draft agreement and especially the one we had in May at this stage contains two instruments which will be discussed later, one on the Article Form 5 and the other one for Article 12. So we will have the pandemic agreement.
and two further instruments. So there is a list of questions. In order to maintain a coherent whole, it's important to have another whole vision of what the agreement on the pandemic could be and the link with its instruments. Of course, we would like to have
as many countries as possible to be party to the pandemic agreement and both instruments. It's also important to be clear about the possible timetable for the adoption of these instruments. What are the possible timetables if the instruments for Article 4 and 5 and for Article
12 are, for example, protocols or annexes. And how can we ensure that member states are sufficiently encouraged to become parties to both instruments? So the main question is how to preserve the package with time issues. As discussed at the IND 10,
In July, the Secretariat prepared an information paper on the legal architecture of the proposal for the WHO pandemic agreement. And I would like to thank the Secretariat, which took time out of its summer break to prepare these dialogues and especially this paper. Thank you. Thank you very much. Like yesterday, as it was mentioned by Tovar,
This session is to provide balance on diverse expertise, viewpoints and perspectives and to allow an exchange with resource persons. For this topic, 27 resource persons have been invited, 11 have responded positively, and today I think that 11 resource persons are joining us for the discussion. So I would like to assign them again.
and from the Secretariat, Steve Solomon and Kinesh Pursi will be with us and I would like to thank them. Like yesterday, this session is publicly webcasted and there is no translation because of the Shaper meeting which is taking place this week at the same time. So we will open the discussion.
we will start with a short presentation of the information paper prepared by the Secretariat. think that Steve Solomon will do the presentation. And then we will open the discussion with the resource persons. For the resource person, actually, the main question we would like you to provide answer is regarding the paper
sent by the Secretariat presenting the current status of the pandemic agreement. What are the options for member states? We really need to have your viewpoint, your suggestion to have member states think about the different options which will be possible.
So before we begin, I'd to hand over to Ambassador Thauva who will chair the meeting with me this morning. Over to you, Thauva. Thank you. Thank you very much, Anne -Claire. Good morning to all of you. Greetings to all those online. Yes, I think I would like to first start with the Secretariat presenting, Joe Wood and Steve, so that we can start benefiting from
the resource people and if you allow me and Claire, I want to name those that have agreed to be with us because you're 11, I think we can afford that. We have Professor Gianluca Burci from the Graduate Institute, K Gopal Kumar from the Third World Network, Rujin Habibi from the University of Ottawa, Musala Kanyanga from the ZNPHI, Valeri Ekawangu.
from the also ZNPH, Nidhi Kazarvani, Director of IH, Ebere Okereke, from, who is a global health expert in Chatham House, Unichi Suzuki, from the Faculty of Law of Tokyo University, Alan Taylor, Professor at University of Washington School of Law, Alan Hoenn, Director of Medicines, Law and
Policy and Pedro Villarreal, Senior Research Fellow at the Max Planck Institute. And Dame Barbara Stocking, who is here with us, thank you very much for joining us. Without any further ado, please, Secretary, present the background paper. Thank you. Thank you, Ambassador, Ambassadors. And thanks to the INB for this mandate to
bear this paper before presenting, getting into the presentation, let me also thank the entire team because this was a team effort led by Dr. Jawad Majoor, but particular thanks to Claudia Nanini and Kenneth Piercy for the work on this. So this paper was requested by the previous INB. Next slide, please. I will, in this presentation, very briefly give a snapshot.
of what is the paper which is presented as a question and answer paper. Next slide please. And next slide please. So we'll run through this very quickly with very, as I say, very much a snapshot approach to the paper, trying to put that 10 pages into essentially headlines for you. Next slide please. So the first question.
Very good. The first question is, what is the legal basis for the pandemic agreement? Of course, the INB is working on the basis of Article 19 of the WHO Constitution. Next slide, please.
What is the relationship between the pandemic agreement and the IHR? From a legal perspective, both instruments and the PAA is, of course, draft at this point.
but this is green text, focuses on that they should be compatible. Next slide, please.
Question three, what are the options for additional instruments provided for in the CA plus? And there are, of course, first annexes, which will be a subject of discussion, then protocols, and of course, another possibility as always, amendment. Next slide, please.
Question four, what would be the options for further instruments with respect to articles four and five on the one hand and article 12 [IOJ note - this is sketchy PABS - pathogen access benefit sharing] on the other? So these would be either annexes or protocols as reflected in the other side and the various considerations with respect to each of those forms of instrument. Next slide, please.
Question five, if there are three instruments, how should they interact with each other? Here, the paper focuses on the importance of the principles of complementarity and consistency and ensuring that there is synergistic synergies among all three instruments towards the objectives of the pandemic agreement itself. Next slide, please.
Sixth question deals with an issue explored in some depth yesterday, which is the considerations regarding specialized international instrument status and whether a form of annex or a form of protocol would affect such considerations. And it's the view of the WHO secretary that either form could be understood as
constituting a specialized international instrument. Next slide, please. Final question is the architecture for entry into force. What mechanisms exist for providing for sequential or simultaneous, for example, entry into force of the instruments? And indeed, the paper addresses the issue of the mechanisms available.
through examples provided by the UN legal office. And there is, in brief, a great deal of flexibility available to member states in engineering, entry into force for these instruments. And that concludes the presentation. Thank you very much, Ambassador Tovar.
Thank you. And Claire, think under your chairmanship, we would like to start hearing from the resource people. But as I see it in the paper, and Steve correct me if I'm wrong, member states have options. So it really depends on the political will to go in the direction of an annex, depending on the issue or a protocol with all of the implications for ratification and following the main or the main body which is the pandemic agreement, or even doing something outside the agreement, following other articles of the constitution, again, another 19 or 21 and 23, as we have briefly discussed yesterday. So actually, it is in the hands of the member states to decide what is the best way to give more details to the, let's say the beginning of a normalization process for PPPR, and I think that is clear from the paper and the implications provided that they're not incompatible, provided that they maintain certain synergy and did not run against the purposes of the various instruments. I'll now hand back to you so you can help me extract from the resource people some more details, some more discussion for the benefit of stakeholders and member states present and participating. Back to you. Thank you. Thank you, Thauvin. And thank you, Steve, for the presentation, which was very, very useful. And thank you, Thauvin, for insisting on the point you mentioned.
And there is a last question presented by Steve, which is quite important, and especially the considerations about the entry into force, sequentially or simultaneously. It's an important point. And of course, that will depend on the political wish. But depending on what members they will want, the question will be how, from the legally perspective, can we write it in the pandemic agreement. That will be also the question. Of course, that will be very helpful to have the viewpoint of resource persons. So I don't see online any raised hand, but maybe in the room there are some people or some resource person who would like to take the floor. So over to you, to resource person to have your
perspective and expertise on the questions presented by Steve and the two co -chairs. Just one second. Claire, are you able to see those that are either raising their hands or here in the room? Because we have Professor Gianluca Burci asking for the floor. But we can
No, can't see in the room, I can see only online. So, Tova, over to you and no problem with that. Professor Bucci, have the floor.
Many thanks. I thought I would break the ice. Many thanks for inviting us to this interactive dialogue. I listened to the pub's dialogue yesterday. It was very interesting. Maybe bit confusing for some delegates, but I think it reflected the differences of opinion and also the different approaches. So today, obviously, I see it as a bit of a different dynamic because we don't have background questions like yesterday and like this afternoon for one health.
And so as I was trying to prepare, I was finding it a difficult to focus on secretariat papers that touch on so many points. But I think the co -chairs have explained quite clearly that there are options, that what they want, delegates want to know, is options that preserve the integrity of the agreement, that make it attractive to a large number of states, and how these options can be formulated. So in that sense,
And I don't want to speak too long. I saw that we are supposed to make short statements. But it seems to me, reading the secretary of paper, that it talks about the issues that are typical of what we call international regulatory agreement. So not just contractual agreement, but agreements like environment is the typical example where states address together what we call the collective action problem. They do it domestically because they need to pass legislation and so on.
but they do it together. In particular, through the institutions, like the conference of the parties, where they meet and they develop together their instrument. So there are three aspects there that I think are reflected in the paper and they talk about options. The first is the level of detail or generality. What are the main ingredients that should be in the pandemic agreement so that it can be seen as a proper package?
The second is what kind of machinery, what kind of institution of machinery would you need? And the third, what comes after? What are the considerations? You mentioned protocols and annexes. There is a whole section on the relationship and possible conflicts with other treaties and the question of entry into force. If I can start from the entry into force as the co -chair suggested, there seems to be an interest, if I understand correctly, to have a pandemic agreement with possible instruments, like only protocol for the sake of argument, on PABS and One Health, coming into force together as much as possible. So you preserve this balance package, not something sequential where protocols will enter into force in 10 years. And so the question is, is that possible? Because if you look at the text of the draft agreement, protocols are adopted by the conference of the parties.
So that implies that the treaty is in force. And that can be a few years down the line. However, if you look at treaty practice, there are other possibilities. And I mentioned two in particular, where the General Assembly of the UN adopted a treaty together with protocols, adopted the whole package. And I can think off the top of my head of two precedents. The first.
It's an optional protocol to the covenant on civil and political rights. A protocol that allows individuals to bring cases to the human rights committee. It was adopted the same day or the day after the covenant. The second is an old arms control convention, which I think is mentioned in the secretariat paper called the CCW, the Convention on Certain Conventional Weapons, where the General Assembly adopted a treaty which is kind of empty and five protocols at the same time.
So nothing prevents, for example, for the sake of argument, the health assembly from working, if that is possible, on a number of steps. For example, first adopting the treaty, but mandating additional negotiations to try to agree in a hopefully short period of time on one protocol for PABS, and if so wishes, one protocol for one health. At that point, you have them linked
chronologically, they are very close to each other, and you can tie the entry into force together. And that can be done in many ways. I understand there was a paper circulated by New Zealand, which I haven't seen, that seems to touch on this point. For example, requiring a critical mass of countries to ratify either or both of the protocol for the main agreement to come into force, or to choose criteria. For example, countries that
share the most genetic sequences, for example, objective criteria that have to be fulfilled before either the agreement and all the protocol come into force. So you are sure that the key actors are there by the time the initial agreement come into force. So there are many options that I'm not sure are fully reflected in the Secretariat paper because obviously the short time that it took. But again,
the possibility for the health assembly to decide to adopt a broader package than just one agreement. And then it's easier to tie them together. So I will stop at that, but there are many more considerations that I hope will come out later. Thank you.
Thank you very much. And Claire, we have another request here from the room. Dame Barbara is talking, please. You have the floor. Yes, first of all, I should say I was very sorry to have to miss the PAPS meeting yesterday. I'd be desperate to catch up with where everybody's got to. But I've wanted to make two comments on this legal status. And I think one, Berkha's point about time is very important. The second one is who can join? The time question.
is really important because I think my panel well my panel is very much of the view that we don't want to try to push too much discussion of the real technical details and Mike Ryan has said that very much strongly himself into trying to get the pandemic agreement through and we need to get that the agreement through but with all the the comments that have been made about you know firm you know statements about what has to be done by when etc but we do think that it would be so much better if we could actually
get through that by taking those principles, those commitments, and so on, and giving some time for work to go on. Not necessarily several years. Maybe it could be done in a shorter time, but not to put the pressure off on about trying to take everything, every word, all of the tech transfer issues and so on, but do other things alongside moving forward as we go. So there is an issue about how you can help make this pandemic agreement get into play or even get started in its ratification very quickly. And protocols, particularly for the two, been mentioned, seem really important and a good way forward for us.
The second thing I think that is really interesting, and I don't think necessarily from my conversation with member states that it may be understood now, but it certainly wasn't in earlier days, was that of course everybody is concerned about who is actually going to ratify the pandemic agreement and how many people will you get - even if you get enough to ratify - and get it in to get the treaty going but the point about having a protocol the great advantage is it can be opened up to everybody if the conference of parties actually agree that that's they want to put that in play and I think Juan Luca you were describing one I mean the one that came to me very early on in the discussions about the pandemic agreement was the IAEA
Now, I always thought that actually, you you had to be signed up into that treaty to be part of it only to find that actually quite a lot of countries were for good reason signed up to the standards of the IAEA, although they were not in the treaty group. And that seems to be a really important thing to, particularly with the, well, with either protocol that we're talking about, it gives the chance for more people to be in it than we expect can ratify the formal pandemic agreement. And that seems to be really, that's a really important point.
We can get more in without actually, you know, really trying to, well, to be quite so concerned as long as we can get ratification enough to get the agreement in play, then we can actually broaden it out to make it possible for other people to join in with a PABs or you know, a One Health protocol in that.
And I think it's really important to have that thought, you know, just thought through as a way through the situation. But those are the two comments I wanted to make, you coming from my panel as we're looking at that legal set of issues.
Thank you very much. I hand it back to you. have two resource people online, Dr. Ellen Taylor and Pedro Villarreal. Yes, yes, thank you. Yes, three resource person online would like to take the floor. I would like to start by thanking for your explanation on the time and how
how to make more countries to join and the different examples you mentioned at the beginning. That's very, very useful to look at all the international agreement to have an idea of what is possible, what has already been done. That's always very, very useful. So I will give the floor to Dr. Alain Taylor, followed by Pedro Villareal, followed by
Mr. Gopakumar. Thank you. I appreciate this opportunity to join this meeting. First of all, I would align myself with the comments of Jean -Luc Gobertje. I think as a legal matter, he's absolutely correct. I do want to go back to the point made by the vice chair, though, about how to achieve expeditious adoption and implementation of separate legal instruments.
And indeed, the elaboration of these instruments raises important questions of form and substance.
So the Secretariat paper specifically envisions that the PABs instrument would either be an annex or a protocol.
And I would harken back to what the vice chair suggested that we consider alternative forms and in particular, the idea of adopting, for example, the PABs instrument as an Article 21 regulation.
And also as a protocol to the pandemic agreement, actually Steve Solomon has previously suggested, you the use of the Article 121 procedure for adoption ensures that the protocol will enter into force as quickly as possible. Essentially, as you all recall, pursuant to Article 21, regulations automatically come into force from member states, except for those states that specifically opt out.
So you don't have to go through this separate process of entry into force. And in addition to being the most efficient approach, the quickest approach to ensure entry into force and potential protocols, it's also desirable Article 21 because it is also the most inclusive approach since Article 21 regulations are open to all member states of WHO. I would be remiss, I think I'm going be remiss though, specifically with this reference to the PABs, proposed PABs instrument. We didn't also talk a little bit about substance as well as form. During INB 9, the proposal to defer the details of the PAB system to a potential protocol or annex, was put forth as a mechanism to advance consensus where none seem to exist.
But I think careful reflection illustrates that there is, it can be really problematic to try to separate PABs, for example, from other key elements of the agreement, specifically the global supply chain and logistics network under Article 13. mean, how does PABs fulfill its potential of equitable sharing of benefits if this network is not part of it?
And indeed article 12 .4 specifically envisions contributions through the GCSL network. PABs is also closely intertwined with strengthened regulatory systems under article 14. So collectively systems and procedures need to be put into place to effectively distribute the vaccine under the PAB system and negotiating parties need to consider if and how these mechanisms can be separated.
from the underlying pandemic agreement itself. Thank you. And Claire, if you allow me just one comment, and I would like to thank Dr. Lynn Taylor for the yet another option. Instead of only looking at protocol or NX within the framework of chapter three of the agreement, we can also simply apply article 21. Thing is, the compatibility of anything that is done under article 21
It's the same issue that we have now, the necessary compatibility of IHR, which is a regulation and the future pandemic agreement. So it's not different. If we have any of these further instruments under Article 21, we would still need to see how they relate to the main agreement. With that, I hand back to you, Thank you. Thank you, Travail. I think it's an important point, yes.
And the last point mentioned by Dr. Alain Taylor is also very important. And that's why at the beginning, I talk about the package and the risk you mentioned about the separation between the PAPs and all the substantive elements in all the articles in the pandemic agreement. And we really need to keep it in mind.
We get the floor to Pedro Villareal and followed by Mr. Gopakumar.
Yes, hello everyone. hope you can hear me. Good morning, good evening, wherever you are. And I would like to thank the Secretariat, the IMB, and all of the ambassadors for the privilege to share my views with you today, Your Excellencies. I will now bring back the discussion to the options that are on the table. Of course, I fully share the opinions of Professors Borchi and Taylor and but I will then offer my opinion on the basis that there is still an open discussion on whether parts of the agreement, be it the PAPS or One Health, would be adopted as an annex or as a protocol. And I will focus on the choice of an annex because, and I'm aware that there will be political will at stake and this is dependent upon the delegates' preferences, but in the interest of offering options and particularly of what Professor Taylor just mentioned, that it's quite difficult to separate key components of the pandemic agreement and move them to an instrument, a separate instrument that may or may not be ratified by the same parties to the pandemic agreement. I will focus on the option of annexes. And we have position ourselves alongside other colleagues like Mark Ecclestone Turner, Sam Foster, Halabi, Michelle Work have positioned ourselves on this matter. And in the case of annexes, which would be considered an integral part of the agreement or not, and I will come back to this, these would offer also different options. And I would mention the example of the World Trade Organization and its own agreements, which are also international treaties adopted under the Vienna Convention on the Law of Treaties. And here what we see is that both options or annexes are on our table regarding whether they are an integral part of the agreement or whether they are optional annexes. So if we look at the Marrakesh Agreement, which is what created the World Trade Organization, we find that it is actually quite a fit agreement and that the core components, really the substantive issues are curiously found in so -called annexes, right? The General Agreement on Tariff and Trade, the General Agreement on Trading Services, and the Agreement on Trade -Related Aspects of Intellectual Property Rights are actually an annex to this American agreement. And this brings me to the point of scope. There is a...
considering the Secretariat's paper, there is no limits to the type of scope an annex could have on the one hand. And on the other hand, these annexes are part of what's known as single undertaking, meaning member states of the WTO must accept these annexes if they want to be a member state of the WTO. They may not, can choose. However, there are, is another annex which has other agreements at the same time that do indeed offer
the option to opt out of these annexes and that is for instance the agreement on public procurement. So as we can see if the option of annexes is pursued there is also a range of options available for delegates and I'm happy to provide further details because it's really not an either or matter when it comes to these annexes. Thank you very much. Thank you. Thank you for
This slide on annex, which is very useful. I will give the floor to Mr. Gopak Kumar from Third World Network. And I think that Dr. Alain Taylor online would like to come back and to take the floor again. And over to you, Tova, if there are other resource persons in the room. And there are also questions raised in the chat and that will be useful to try to answer these questions. So, Mr. Gopakumar, you are on floor. So, thank you, Ambassador, and thank you for this opportunity to share our views on some of this legal architecture related to the upcoming pandemic instrument.
So before getting into this question of annexes and protocols, I would like to state some of the issues and from there, you know, it makes me easy to explain our views on protocols and annexes. I think from a, one of the important elements of our objective of the instrument should be to ensure maximum participation.
Then only that also very important from a public health perspective also to ensure maximum number of WHO members are complaining to the provisions of the instrument that brings whether it related to PAPS or whether it related other information that gives the effectiveness of the instrument. So what we need to keep in mind is that a mechanism wherein which the instrument is a legally binding instrument, but at the same time, it can facilitate the maximum participation or maximum membership to the instrument. that's So from that perspective, if you look at it, now this agreement for this instrument, let me call it as an instrument, is drafted keeping in view of an Article 19 instrument when the secretary
background paper also clearly shows that. at the same time, the decision is that it is not ruling out to adopt this instrument even under Article 21 or other related provisions of the WHO Constitution. So the Article 19, all of us know that it requires ratification to be come into effect. So of course, if you ask the legal scholars, even though five ratification an instrument can come into force. No problem with that. But it is not the number matters.
It is how many members are going to participate. WHO has IHR, has 195 members of IHR. So if a new instrument, which will be ratified and which will have only 50 member states are party to that, then that creates a fragmentation of legal norms. So this is a highly a problematic approach because this will eventually lead to the failure of the instrument or in a lighter way the secretary has to then mobilize resources to convince countries to join in the instrument. it is better we look at other articles in which the instrument can be anchored, like Article 21.
This is very important because Article 21 from day one is applicable to all member states. And then we like to those who would like to opt out has the option. But here in Article 19, is opting in. So the countries do not want accountability from that accountability perspective. They can simply keep silent.
keep it from undertaking any obligations. under Article 21, is an explicit action is required. So three years or four years of negotiation resulting in the conclusion and adoption of the instrument by the World Health Assembly. Article 21 demands a kind of explicit action to abdicate the obligation. So therefore, Article 21 has the merit of inclusion and from a public health perspective as well as legal perspective it is better to go for an Article 21 instrument. Otherwise this instrument bears the danger of fragmentation.
Let me explain two more points and then I'll conclude. One of the important objections raised by, I would say the only legal objection or legal doubt due to special session of the assembly or in the 2021 session of the INB where this decision to go for it predominantly under article 19 without rolling out the possibilities of other articles was taken that time. The point was that equity provisions cannot be accommodated under article 21 instrument because it's a regulation. Equity cannot be accommodated. But I think down the line in 2024, you look at it, know, IHR amendment clearly put that legal doubts, that clear, clear that legal doubts, you know, beyond any further doubts, I would say. Because it has clearly accommodated equitable access. So therefore, there is no room for any kind of legal doubt about the scope of of Article 21 as of now. So therefore, I think it's important to go for it.
And from there, I take my last point on protocols and annexes. If you go for the protocol route and annexes route, I think it in a way reflects the earlier assertion of the framework convention. So protocol, especially if it's under an Article 21 instrument, a 19 instrument, then again, it will fragment countries may not opt in. So as a result, you will end up in an international legal international emergency regime where 195 countries are party to IHR, maybe 50 or 80 countries are party to the instrument and then in the protocol the number may go down. We do have the experience of tobacco framework convention and its protocols. I think we learned from that. think we might have on a kind of a moment might have said, we need a framework convention. But I think it's we also need to take into account the realities and the public health perspective as well as the effectiveness of the legal instrument and need to reconsider the idea of angering this instrument under Article 19. Thanks.
Thank you very much. Thank you. Thank you very much. You asked us to see the chat and the first question is a request for the informal paper from New Zealand on entering into force to be circulated. The thing we have a difficulty with that maybe we have to approach New Zealand for that member state to be in a position to circulate. This was not circulated as a member state document. We have New Zealand in the room. Please, you have the floor. Thank you very much. And we appreciate the interest shown in the non -paper that was very much floated as an ideas paper to member states, to some member states during one of the earlier INB sessions.
I'd have to consult with my capital before I was able to circulate anything. And I think at this stage it was very much on an informal basis to be shared with member states as food for thought rather than a New Zealand position at this stage. Thanks. That's very useful. Thank you very much. New Zealand always being very constructive in the participation in the ANB. The second question comes from the distinguished permit representation of Bangladesh. It's more of a general. think some of these speakers have already started doing that.
But the request is that the experts or the resource people, if they could shed light on the pros and cons of the legal premises and what could be practically achievable as per their assessments. So with that, Anclair, will allow you to, or I ask you to hand back the floor to Dr. Taylor. And there is a request from Rojin Habibi from the University of Ottawa as well, as you can see.
Thank you for giving me the floor again. First, I wouldn't align myself with the comments of Dr. Gopak Kumar. mean, he gives a very strong case for an Article 21 regulatory approach. And I wanna thank Dr. Villarreal for opening the discussion on annexes. I'd say I don't see the benefit or the advantage of adopting a PABs instrument or One Health instrument as an annex.
But I do think generally the Article 30 approach to annexes should be reconsidered. As R is currently drafted, Article 30 requires that once an annex is adopted by the conference of the parties, it is subject to the same entry into force requirements as amendments. So it doesn't come into force until the 19th day after the deposit of instrument ratification.
So I think this cumbersome procedure unnecessarily delays critical and timely updating of the pandemic agreement and consequently the capacity of states to respond to pandemics and protect their populations. And one of our key goals in designing these legal and institutional mechanisms is to ensure procedures that are both, you know, the widest possible scope in terms of membership.
but also the most expeditious and efficient. As the Secretariat paper notes, there's a host of contemporary international environmental agreements ranging from the Vienna Convention for the Protection of the Ozone Layer. I don't think they mentioned that one to the Basel Convention and a host of others that don't subject annexes to the same procedural requirements as amendments. Rather, they provide a simplified entry into force procedure
That's not unlike the international health regs annexes automatically come into force for all parties, except for those that's notified the depository within a specified period of time. This sort of expedited procedure approach to timely and effective adoption of annexes, I believe, can make an important contribution to the underlying objective of the pandemic agreement to advance collaborative multilateral response to pandemics.
Thank you.
Thank you. Thank you, Dr. Alain Taylor. That was very useful, and especially this difference between annex and protocol and the consequences and the pros and cons. I think it's very, very useful. Now we give the floor to Rojin Abibi from Ottawa. have the floor. Thank you very much, co -chair. And good morning, everyone.
It's a pleasure to be with you. I'm just by way of background a professor of global health law and human rights at the University of Ottawa at the Faculty of Law in Canada. I would like to begin by offering two remarks on the paper which I read with much interest and found to be well written and well researched overall. And this conversation here has also been very informative for the purposes of the discussions. I won't be repeating the excellent remarks that have already been made by Professor Burci, Professor Villarreal.
Professor Taylor, Mr. Gopakumar, I want to take us maybe a step back again and looking more at sort of a high level bird's eye view of what we're doing here in this instrument and address the topic of interpreting the treaty because the concept of complementarity and coherence has come up a couple of times in the presentation. And we have within the paper a quick discussion or quick reference to the Vienna Convention on the Law of Treaties.
But I think it really doesn't take sort of the paper doesn't bring into view the general rule of interpretation of treaties per the Vienna Convention on the law of treaties under Article 31, which states that a treaty shall be interpreted in good faith according to the ordinary meaning to be given to the terms of the treaty in their context and in the light of its object and purpose.
The general rule calls first and foremost to mind the textual interpretation of treaty terms. So a plain language reading of the treaty, but it also that textual interpretation includes a textual interpretation of the preamble and annexes and it very specifically lists these as well as later on saying that the greater context has to be taken into consideration.
And I'll come back to the point of the greater context, but subsequent agreements to the treaty in addition to the context can be made as part of interpreting the treaty itself. However, the catch here is they have to be between the parties and may also be considered as a useful resource, but only for the parties that are involved in the subsequent agreement and protocols may be considered a subsequent agreement in this regard. But I think what you see here is if it becomes an annex, is then the complementarity between the instruments or between the bodies of text becomes a lot more cohesive.
than if it becomes a protocol with its own fragmented group of parties and the cross -interpretation of treaty terms may become more complex. I think you've heard enough here on the call about the need not to fragment the different substantive pieces of this agreement, but that's just another consideration per the Vienna Convention on the Law of Treaties general rule of interpretation. I do want to go back to the point of context very briefly, because I don't think we've discussed this enough. That is the question of the WHO's constitution being essential to the context of the pandemic agreement itself. And I think that the paper alludes to this a little bit, but we don't really see this as coming into full view.
And why is that important? Well, it's important, of course, because the treaty is being adopted pursuant to Article 19 of the Constitution. And there are numerous, before we even get to a point of conflict of laws between different instruments, There are numerous steps, and I would argue that there's a hierarchical norm here where we have to look at what the Constitution says before we get into interpreting sort of a conflict of laws between the IHR and the pandemic agreement or the pandemic agreement and any subsequent protocol that might be adopted under it. So some of those key provisions, may have already heard of them, you know them very well, is of course that health is a state of complete physical, mental and social well -being and not merely the absence of disease, that the enjoyment of the highest attainable standard of health is a fundamental human right, that unequal development in different countries is sort of a common danger, and governments have responsibility for the health of the peoples, which can be fulfilled only through health and social measures. And then, of course, there is the objective of the WHO itself, which is to promote that highest attainable standard of health around the world. And if you look at Article 2K under functions,
To propose conventions, agreements, and regulations that are consistent with that objective is part of the functions of the WHO. So this is a general contextual interpretive tool, but it's part of, before we even get to a point of a conflict of norms, you have to actually interpret what the text is. And to interpret what the text is, you need to have recourse to the WHO constitution. And this goes for the protocols that are adopted under the treaty for the annexes and so on.
I'll stop there, but I just wanted to give us a zoom out a little bit here for the discussion to come.
Thank you, thank you very much. Over to you Tova, I think there are some people in the room who would like to take the floor. Yes, and Claire, and then with the permission of Professor Habibi, we are interested. Thank you very much for opening our eyes for the interpretation tools and what it means, but we would like to hear from you, your perspective on unaccessed protocols in Article 21 and 23.
for the various parts as we know that this is something that's in the mind of member states as they proceed with Article 4 and 5 and 12 and to see whether, in your view, one option is better than the other in terms of and enter into force legal structure and the purposes of the whole agreement and the either annexed protocol or regulation.
We have Professor Burci asking for the floor. Thank you. I would like to react to a couple of statements. So first of all, this Article 19, Article 21 dilemma that doesn't seem to go away. It was mentioned yesterday. It's coming back today again. I think there are two aspects there. One is, can the, for the sake of argument, the pandemic, what we call pandemic agreement as a whole, turn into a regulation?
In my view, why not? I think that there shouldn't be a big problem of consistency with the Constitution for reasons that I can elaborate if you want. But the whole instrument is placed under a particular article or the Constitution has the same legal nature. There are pros, there are cons. I think we are overstating the universality aspect because states can still opt out, can still make massive reservations that require an elaborate process to resolve.
And don't forget that four states have rejected the very technical amendments adopted in 2022, and we keep our fingers crossed with what will happen with the 2024 amendment. So universality is one of the aims of the regulation, but there's no guarantee that an aim will be achieved. And also, do states treat domestically regulations like treaty, questions of involvement of parliament. There are many aspects that I think are to be considered more critically than just oversimplifying and saying Article 21, we know when it enters into force, enter into force for everybody and that's what we stick to because there are other aspects. Where I don't, and I am a bit confused, maybe I'm not creative enough, I'm too positivistic, but in saying that we have
a pandemic agreement under Article 19, so a classic treaty, with an Article 12 on PABS. But then we have sort of an implementing instrument of PABS, which is adopted as a regulation. That, frankly, I'm not sure how it can work and how it can work in a simple and straightforward way. Because first of all, regulations will be adopted by the WHA, will be under the supervision and the oversight of the WHA whereas the agreement will be under the supervision and the oversight of the conference of the parties. So two different systems of governance. The second, you can have a pandemic agreement with 80 parties and a hypothetical PABS regulation with 170. So 110 states will be party to an implementing regulation but not be parties to the main agreement. How does that work? The asymmetry is clear.
And you can think also of many other disconnects between the way a treaty works, in particular, as I said, a regulatory agreement and the regulations. So I would caution in jumping to an easy argument that regulations are quicker, universal, and so on, so why not have like a PABS regulation attached to a treaty? Because you want to also have simplicity, to have things that can be easily understood, easily managed by politicians in countries, by parliaments, by foreign ministry, by health ministries. And I'm not sure that this mix of 19 and 21 is simple at all. So again, I confess my lack of creativity there. But it's something I always had in mind. If I may make another comment on this question of annexes and protocols, I totally agree with Professor Taylor that annexes, as they are in Article 31, I believe, of the draft.
They are treated just like amendments to the Convention. So they missed a point. To me, they are almost like meaningless because it's the same long and cumbersome process as amending the treaty. And they will enter into force only for the states that accept them. Annexes, as Professor Taylor recalled, have a long tradition in, for example, environmental agreements. And the purpose there
is to regulate things that cannot fit in the agreement because they are too detailed, but they can change in time. For example, a list of substances that deplete the ozone layer, list of chemicals, or list of measures that have to be taken to manage certain chemicals. These are not static lists. They change in time. And so the typical approach, at least in the environmental world, to annexes
is that they are adopted, for example, by the conference of the parties. They require a qualified majority, for example, two -thirds of the parties, three -fourths of the party, to make sure that they have a lot of support. But then they enter into force like a WHO regulation most of the time. So they enter into force at a certain deadline for all parties except those that opt out. Then you have the same pressure towards universality, if you wish.
that you have for WHO regulation. So it's a much more agile instrument. And I agree with Professor Taylor that even though Article 31 is green, believe, that the approach to annexes may want to be reconsidered. Because otherwise, you have protocols and amendments and annexes that are not very different with each other. You want something agile and that allows the treaty to develop in time.
Finally, we said non -binding instruments. You can have various things there. For example, it is quite common for major treaties, Dr. Villarreal mentioned the WTO agreement, to have a number of decisions of understandings that are adopted together with the treaty.
In the case of WTO, you have no less than 20, 25 understandings. There are not treaties.
but that indicate the political agreement of the parties of what they will do. And seasoned diplomats like Ambassador Tovar, I'm sure that they're familiar with the things adopted by Plenary Potentially Conference and so on.
So nothing prevents the WHA when it adopts the agreement or any other instruments to make further decisions, how to operationalize or how to do other things, inviting other organizations. But then when the treaty enters into force, the action moves to the conference of the parties. And here too, the environmental world shows what kind of universe you can have in front of you. Because conference of the parties think of climate change, biodiversity, desertification, the convention on trading in dangerous species. They can establish new institutions. Think of the panoply of financing mechanism adopted by the COP under the climate change convention. They can adopt policy instruments.
Think of the Kunming -Montreal framework for biodiversity. They give like an agreed sense of where the parties will go for the next 10 years. They can do quite a number of things that are difficult to anticipate now. But just to say that what matters for the treaty is not just what is adopted at particular point in time, but looking at the other practice, the fact that once the treaty enters into force, it becomes a living instrument which is in the hand of its parties to develop, to further amend if need be, to re -discuss, and then the conference of the parties become the engine for the adoption of a broad number of things that are not necessarily binding, but are very politically important to move in a certain direction. So talking about options, here too we have quite a range of options. Thank you. Thank you, Professor Bucci. Before I give the floor to other resource people that have raised their hands, I want to invite Steve.
Professor Bocce, you raised one issue that for member states is important. Although we have the option, you're actually asking whether it would be functional or legally even possible for countries to adopt an agreement and then have part of it, like the POP system, adopted under Article 21. And you obviously recall the discussions we had in December 21, the comma and the idea of not excluding Article 21 in our deliberations. think Member States, and I haven't heard anything different so far, have manifested their preference for Article 19, but they have not excluded Article 21 yet. So this is something that still has to come up. We have the obligation to be creative, because what matters is PPPR. INB was mandated to discuss
how best to come with legal provisions to prevent, prepare and respond to pandemic outbreaks and also allow the restoring of the system, the global health. So this is what is in their mind. But obviously we're here to discuss technically and legally what is the best way to do that. And you'll recall that creativity was necessary, for example, when a country does not ratify the Treaty of Versailles, but still is a member of the ILO. So this is possible.
when a country is unable to ratify the Havana Charter, not to create the international trade organization back in the 40s, but still apply the GATT provisionally until WTO was created. So all of this is important. The aim is to allow more countries less and not less to join in this collective effort of solidarity, of cooperation, and not to preclude any option. That's why we have to be creative. Unfortunately,
And, or fortunately, countries have the sovereign right to decide what to do and their parliaments will inform them. So that's why we need as a body, INB or WHA, to be creative and allow these possibilities to come, provided they are not incompatible or illegal.
That's why I need Steve's help to see if we run the risk of, you know, going into the road of illegal or unnecessarily undesirable legal options.
Attorney Steve: Thanks very much. Happy to offer views on this to assist. But determinations of whether something is illegal is definitely in the hands of member states.
Steve continues: But just a few thoughts. First of all, on this issue of Article 19, Article 21, Article 23, annexes, protocols, and specifically the question that Jean -Luc just raised about
possibility of having a protocol to an Article 19 instrument that entered into force through as a regulation under Article 21. And I think what I understood him as saying, and if this is correct, I agree with him, it is conceptually possible to do this. It would be creative in the sense that it hasn't been done before. But it is conceptually possible. That said, it is procedurally
complex. are pros and cons to doing so. Jean -Luc mentioned some of them in terms of the governance structure. An Article 21 instrument would have its governance under the World Health Assembly. So you would have governance that was for the protocol under 21 under the World Health Assembly and for the agreement under Article 19, you would have the conference of the parties.
Does that prevent an insurmountable legal problem? I think the answer is no, because I think the membership of the health assembly on the one side and the membership of the pandemic agreement on the other could come to an understanding about how to resolve that. The membership of the FCTC, COP, has come to an understanding on the relationship with the World Health Assembly, because there is overlapping tobacco control initiatives.
some under the FCTC, some under the World Health Assembly, and it's complex, but it works. So it is, I think in a word, is conceptually possible to do this, complex, including presentationally complex. Having the duty to explain this to the global public and certainly to parliamentarians absolutely requires some consideration of
presentational issues. And this brings up, I think, another principle which delegations may want to keep in mind, which is the KISS principle, the keep it simple and straightforward. And indeed, when you use different legal authorities to bring into force or to bring into effect your normative work, you run the risk of complication.
But complication is present, as you've heard in all these examples, in many areas of your international normative work. Complication is present in many areas of your member states international regulatory agreement work. You can see this complications in the Montreal Protocol and its successors, but that is an enormously effective instrument, and I'm glad mention was made of the Montreal Protocol.
on the ozone layer, incredibly successful arrangement and a complex normative architecture to that, but it works. So I think, again, I think the bottom line here is there are precedents for flexibility and your creative use of your authorities under the Constitution, all of which
and is in the framework of the important references that were made about the WHO Constitution. Let me just, if I could also refer to the points made by Professor Taylor about the annexes. Yes, as drafted in the CA +, annexes are in effect redundant with amendments.
And this does depart from the practice in the environmental regulatory treaty area. And it does limit your flexibility to do technical fixes in an agile, nimble way. So these observations, we believe, are correct for your consideration. Finally, on entry into force of both of the agreement
whatever it's concluded under and I think as Ambassador Tovar was referring to, when we say that the CA plus is now being adopted on the basis of 19, we put it that way because we are following the mandate of the second meeting of the INB, which identified article 19 as the provision under which the instrument should be adopted without prejudice to also considering as work progresses the suitability of article 21.
So if you adopt under Article 19, the EIF provisions referred to in the paper may inform the scope of flexibility available to you. If I could bring your attention as a illustration of how much flexibility you have. If you look at Article page 9 on the paper, again this is from the UN Legal Office's identification of provisions.
you'll see under on page 10 under little D the example of the entry into force provision from the International Tropical Timber Agreement of 2006 and I'd invite you to take a look at this because it is remarkably conditional in two ways first entry into force of the International Tropical Timber Agreement 2006 is conditioned upon
a set number of governments of producers holding a set percentage of total votes set out in an annex, and 10 governments of consumers taking a certain action. And then there's a second condition. If it doesn't come into force according to those conditions, then there's a provision in paragraph two, again this is under this international tropical timber agreement, that
If it doesn't come into force by a date certain, it shall enter into force provisionally. We spoke about provisional application the other day. It shall enter into force provisionally on a date certain provided that another set of conditions are fulfilled. And I point to this just to illustrate the scope of creativity which goes beyond that even mentioned in the non -paper by New Zealand.
for governments to address themselves to what are priorities in advancing their objectives. So if it is a priority for governments to ensure, for example, that governments of manufacturing, of manufacturers are accepting the terms, you can set that out in the entry into force requirements.
of concern to ensure that a minimum number of states who will share and take the necessary actions to ensure rapid sharing, you can set that in the terms. So this is just to bring to your attention, focus on the degree of flexibility with respect to entry into force for an Article 19 instrument or a protocol that operates in an Article 19 context. Thank you.
Thank you, Steve. We are actually, with your permission, would like to associate already stakeholders and member states in asking questions and participating in this debate before we run out of time. But we have a question, Steve, if you don't mind, with reference to page 10 on material scope of instruments. There was a question asked by Botswana in the chat. And you have touched upon, but
Would you mind, the question is, looking at the table on page 10, the question is, does the material scope of both WHO Constitution articles 19 and 21 adequately encompass the adoption of the WHO pandemic treaty in its current form, shape, and theoretical construct? This is the question that has been asked by Botswana. There's another question or request by Uganda.
As a negotiator, Uganda wishes to hear more from Rodin Habibi and also myself, but we don't want to bring pressure on anybody. And then after Steve answers Botswana, we have a request from Ambassador Ramadan, the vice chair of the bureau, to be followed by the resource people Gopakumar, Pedro Vira Real,
and Aline Taylor. I'm sorry, I don't know if the resource people are either doctors or professors or both. when I, in a very Brazilian way, informalize the title, please do not take that as an offense. Be happy because sometimes it's not written whether all of you are doctors or professors or both. So when I say Pedro Vira Real is not to diminish your...
your title as Pedro, but actually to make it more of a direct interaction. Steve, would you mind? Yeah, very quickly, thank you. And again, thanks to Professor Habib for pointing out the provisions of the Constitution which inform as to the scope, material scope that is available to member states with respect to conventions and regulations. Because she pointed us, of course,
as well as to Article 19 and 21 and 23, to Article 2 of the Constitution, the functions of the organization, and a little K paragraph under that which provides that the functions of the organization shall include the proposal of conventions, agreements, and regulations and recommendations with respect to international health matters and...
that are consistent with its objective. The objective being very broadly the attainment by all peoples of the highest possible level of health. That informs the Article 19 standard that agreements may have within their scope any matter, agreements under 19, any matter within the competence of the organization, very, very broad, broader than
the Article 21 scope, includes regulations that may concern themselves with, among other things, Article 21A, sanitary and quarantine requirements and other procedures designed to prevent the international spread of disease. That said, it is member states who determine the meaning of those provisions and the breadth of those provisions. And as we've said before, one can see in both the IHR 2005
and the amendments recently adopted, member states taking a rather broad interpretation of the procedures designed to prevent the international spread of disease. If one looks at the provisions of the IHR 2005 and its amendments, one has a sense of the scope that is the interpretive scope that member states are currently comfortable with.
But again, this is a decision ultimately for the member states of the organization. Thank you. Thank you very much. Ambassador Ramadani.
Good morning, thank you very much Ambassador Tovar and Claire, I think we had a very interesting and good discussion, very informative and interactive dialogue as well. So I hope we can also zoom in a little bit on possible options and thanks Steve for your clarification. You have always taken the position that everything is possible, it's member states who have to decide.
And then you will kick in later to see if what they decide is legal or not. But on a serious note, I mean, I think it was Professor Bucci who raised the issue of WTO and single undertaking or the way they decide that. And also Professor Habib and Ambassador Farreth. I think the idea here is that the, at least as far as PAPS or
one else are concerned, which is the possible two protocols to be associated with the pandemic agreement. They are bits and parcel of the agreement. I mean, there are provisions in the agreement regarding these two issues. And because the time did not allow to go into detail and finalize the agreement with details on these two issues that we probably are going to have.
two additional protocols to be agreed upon later or annexed, whatever. So these are not additional protocols as far as environmental agreements are concerned. For example, Kyoto Protocol, Paris Protocol, these are protocols that came or not foreseen when the framework convention was agreed upon back in 1992. So this is a buildup process which is different. In the case of the pandemic agreement, this is two major issues in the agreement.
that has to do with the balance in the agreement itself, vis -a -vis other obligations that member states would undertake in the agreement. So we cannot foresee them as a separate thing or as protocols or instruments that can, you know, open for some and not open for others and so on. Mentioning the WTO, I mean, the WTO used to work on the basis of a single undertaking, and I guess it was...
explained before by another speaker on having all the agreements agreed at the end of the negotiating round. But this process or this practice has ceased 20 years ago. There is no more negotiating round in that sense. We have simple agreements that are sometimes adopted at the ministerial. We used to have the pro -illateral agreements, which are the agreements open to those who want to have them.
The procurement was mentioned by a previous speaker. We have the plane also agreement, and I think there was one on communication. So these are differencing. These are agreements that member states didn't agree to have in the package. So that's why those who wanted to it have it separately. But here, PAPS and one else or other thing that we are going to decide on.
is part of the main agreement. there is a collective agreement by member state that these are part of the pandemic agreement exercise, if it's not part of the agreement, part of the exercise. So I guess they have to get the same treatment in terms of entering into force, even if delayed, but they should be the same members here and there, and I think that is an important element to keep in mind as we go thinking of legal aspects of the issue. Thank you.
Thank you very much. In our list we have Gopak Kumar, Pedro Villareal and Aline Taylor. Gopak Kumar, you have the floor?
Thank you. Let me start with this, whether PAPs can be based on Article 21 or Article 19. On that issue, think from a legal obligations perspective, there are three parties in the PAP system. One is the member states and the second are WHO and third are the manufacturers or the asset of non -state actors.
So the non -state actors obligations are concerned, are contractual obligations irrespective of Article 19, 21 or 23.
and they are to be executed and ETA, right? But if there is no corresponding obligations on the member state to ensure that these non -state actors, if they're not complying with the SMTA, it is always to impose certain obligations on the parties or member states to ensure that the
non -state actors within their borders comply with the SMTH. So therefore we need to create certain obligations on the parties. Similarly, course, WHO. WHO obligations doesn't matter. The enforceability of the article 1921 or 23, it is all applicable. So now the question comes,
When you are creating a system, it's efficiency, have to ensure the maximum participation of the countries. Otherwise, the system may not attract even the sufficient number of samples, is required for a critical mass is always important. we should always aim to the optimal participation. To that effect, Article 21,
would be a good idea with the provisions related to Article 23.
The connection is a bit broken. We understood you until your preference for 2021. this is part of the obligation. should be some obligations. now, because it's here, Article 19 and then shipping the... But what I'm saying is that outside the instrument, if you are going for a pandemic instrument under Article 19, can shift out of the system.
to either article 21 or 23 to ensure maximum participation. it comes to the question that what action under the pandemic instrument. There are examples like with a single line, you can obligate all the parties to the pandemic instrument to comply with the system. is what the TRIPS agreement obligates.
parties to comply with the provisions of Paris Convention, you are party to the convention or Paris Convention. So you have to comply with. There are a few more other international instruments listed under the TRIPS agreement. You have an obligation to comply with the provisions of those instruments irrespective of your membership. So therefore there are presidents. So this can be easily resolved. what we need to keep in mind is that the
optimal participation of member states in the system. So for that we can always choose the right article to fit. I think on the universality, article 19 and article 21 poses challenges to the universality. But these challenges are different.
Under Article 19, there is an opt -in clause, ratification is required, politicians are involved, political process are involved, depending upon the constitution of each member states. But in the case of Article 21, there's a different challenge because you need an explicit action to opt out from the provisions. So that's much more, you know, need a positive action. In the case of Article 9, you keep silent.
That's good enough. You don't have to undertake any obligation. under Article 21, you need to take certain actions. Then only you can opt out from the obligation. that would be politically in a way, you need much more stronger political will. Here in the case of Article 19, you can keep silence. So that's the difference. Both article pauses on universality and
We also need to understand that this instrument includes equitable access and there are provisions which are supposed to facilitate equity. So in a divided world where the countries who having the financial and technological resources opt out, or sorry, not joining or not ratifying in an instrument, then the effectiveness of the instrument can be affected. And Article 19 gives an easy route.
for those member states who are having the financial and technological resources not to be party to the instrument by keeping silent after the adoption of the instrument. So Article 21 actually does not give that option. They have to explicitly move out. that may have certain other repercussions. So that is politically bit more tough compared to the
article 19. So the challenge is there for universality, but they are posing a different set of challenge and different ways of resolving.
Thank you very much, Mr. Gopakumar. Now, I would like to invite the United States to maybe we have questions that the resource people can answer. Please.
Thank you, Ambassador. I did hear that some other member states were putting questions in the chat, so I thought maybe it'd be a good time for us to also intervene. And really appreciate, as yesterday, the input from the experts. But we did hear yesterday during the interactive dialogue on PABs some advantages to considering Article 21 for the follow -on instrument. And we heard that one of those advantages might be
rapid entry into force and another one might be maximizing member state participation. We've heard some more discussions today on similar issues and I think the question is whether those same reasons apply to the entire pandemic accord. We heard a bit about coherence between 21 instrument for PABs and the main instrument in terms of
who is the governing body, conference of the parties or the assembly. We heard about coherence with, for example, PABs and the supply chain. We heard, most importantly, I think, about the KISS principle that we can maybe have less complexity. But so my questions then follow on this. How would adopting the accord under Article 21
impact the development of follow -on agreements? Would there be any reason why that would change the development of the follow -on agreements? Then are there elements of the accord that could not be adopted under Article 21? And I think we did hear Steve just give an opinion on that. Would adopting the accord under 21 address the issue that we've talked about in terms of different groups of member states joining one
instrument versus the other. How would the different forms facilitate stakeholder involvement? And I think we did just hear a little bit about that as well. And lastly, would having the accord under 21 enhance complementarity and coherence with the IHRs? And I know we're talking about that just now, but I think that is a relevant issue right now as well. Thanks very much.
Thank you very much. In order to benefit from Member States' questions, we have also another question by Columbia, and I see Juliana here, and then I will ask you, Juliana, to share with us. But before that, was question from the United Kingdom, following on the Botswana question, and it's actually raising the issue of whether or not Article 21
has a limited scope and then we're failing to see that article 21 was adopted and the Constitution was designed for specific purposes as legally binding 19 years but 19 is conventions and agreements and article 21 a list of issues. In other words it's not as free as article 19 for us to lodge legal provisions as we wish.
I think if I understand correctly the question is are we not expanding the article 21 so much as making it almost 19 bits with the differences of the opt -in opt -out issue. then Julian if you would not mind sharing before I give the floor back to the resource people, please go ahead.
Thank you, and good morning. So my question I posted in the chat is that I think it was Professor Borchette that mentioned the possibility of leaving some of the things that we cannot decide here in the main agreement or in the protocol and annex for a decision to be taken by the COP. So our question would be, and this could apply not only for
for one, and perhaps, but also to other things that we cannot have the time to decide. So the question would be that could the decision taken by the COP on any issue on this agreement could be regarded also as legally binding, just to have another option for us to work on. Thanks. Thank you very much, Juliana. Now I would like to invite Dr. Vila Rial to answer questions.
or for remarks to be followed by Dr. Ellen Taylor.
Yes, thanks so much, Da Silva -Nunes. And so I will first go back briefly to a point made by Dr. Taylor and Boci and others. Indeed, the discussion about annexes and protocols, just to reiterate, I was referring to options, and I can understand why some would see this as a disadvantage. On the other hand, I was under the
I was operating on the understanding that the agreement is being negotiated under the premise nothing is agreed until everything is agreed. And even though we see green text currently, this does not mean that provisions may not be revisited. And I fully agree with previous comments that the current modalities for annexes, for example, could be revisited in order to make the most of them. With this clarification mind, then I would react to the questions posed by
the ambassadors from the United Kingdom, the United States, and Colombia. So first, I guess, a correlated question is the scope of Article 21, which is more restricted, more limited than that of Article 19 of the WHO Constitution. And I'll go back to the point made by the principal legal officer, Stephen Solomon. So there's room for creativity.
But it ultimately comes down to what the member states, how the member states interpret these provisions. And I took the point made by the ambassador from the United Kingdom that there is a wish to avoid an overly broad interpretation of the scope of Article 21. And I can understand that. And with that in mind, depending on how ambitious the pandemic agreement
how ambitious delegates want the pandemic agreement to be. Some of those issues might be more difficult to justify within the scope of Article 21. Again, this is up to the interpretive criteria developed by states themselves. And on the other question, yeah, there was another reference to stakeholders made by the ambassador of the United States. And if I understood that correctly,
I'm not sure that's the meaning of it, but that means other actors, non -state actors as well, does it refer exclusively to member states? But if we understand that as referring to non -state actors, one possibility to include them would also be to foresee their participation in any future
body, governance body, or decision -making body, like the conference of the parties. example, Dr. Taylor is an expert in the Frame of Convention on Tobacco Control. you give any sense on that? for putting you in this part. But indeed, there will be a possibility to include other stakeholders, eventually through the decision -making processes. And which leads me to the last point made by Ambassador Tenorio from Colombia. Thanks for the question.
I do believe that theoretically it's possible to grant the conference of the parties the authority to make binding decisions. Even though it hasn't been the case in other conferences of the parties, we have examples of treaty bodies that do have such powers. The World Health Assembly being one example, even if it's not called the conference of the parties.
And as Ambassador Ramadan mentioned, the ministerial conference at the WHO is also a type of conference of the parties, regardless of the denomination, that may make decisions related to the agreements that states are obliged to follow. We can discuss what legally binding means in this context, but I don't see why not. I see no impediment to the conference of the parties being able to make those decisions.
of course, depending on the political will to grant them such power. And to conclude, we should remember that this would not make them impervious to future political considerations that may go one way or the other when they make the decision. Thank you very much. Thank you very much. Dr. Taylor, have.
Thank you. I actually want to align my comments with Dr. Villarreal. think he's, you know, spawn on in understanding the scope of what can be included in Article 21. Honestly, when Dr. Burchies first suggested, as I've heard before, the idea that the entire pandemic accord be incorporated in Article 21, that's a very attractive legal idea.
and they have the most expeditious and inclusive approach. But, I think Dr. Avila is quite right. The question is how far are states willing to interpret Article 21A? As Mr. Solomon pointed out, the ultimate determination of the legality of any action is up to the member states. So if member states agree,
that the court can be or by consensus agree that the court can properly fall within article 21 who is to object. I also want to thank Mr. Solomon for his really cogent remarks about the importance of being creatively and not being put off by the procedurally complex that we shouldn't let the potential complexity undermine.
effective action. Presumably, if you had an Article 19 pandemic agreement and a Article 21 PABs system, you could incorporate within that instrument, the Article 21 instrument, issues surrounding governance. His remarks also remind me of 30 years ago, when we initiated the idea of the FCTC, where most said, including the WHO Secretariat,
that the idea was too complex to be adopted at WHO. The WHO had no business in considering such ideas. And I would take the same approach to thinking creatively in this context. And I'm going to beg your indulgence. We have 15 minutes left in this session on legal mechanisms. And I feel like I would be remiss if I didn't mention a glaring gap in the existing governance provisions.
In particular, the absence of an independent mechanism to monitor implementation of the pandemic agreement under Article 21. And I'm sure as most of you are well aware, monitoring state obligations is of critical importance to international agreements in a variety of fields, from the environment to human rights to arms control.
And in contrast, the absence of any such provision is recognized that a treaty is ineffective and even on the verge of becoming obsolete. So as I mentioned, the current draft of the pandemic agreement has no mechanism to ensure independent evaluation of the implementation of the agreement. And that's a glaring gap that I hope negotiators will address. And one model could be looked at, could be the joint external
the JEE platform that exists with external evaluation at WHO. Thank you.
Thank you. I would also like to go back to 1921, that still seemed to dominate the conversation a little bit. And I hope I'm not repeating things said by other colleagues. But I respond to the point made by the US. What about taking the whole text and turn it into a regulation, which after all, it's in the mandate of the IMB, as indicated in 1921.
reconfirm at the second session of the IMB and so on. And here I think there's a number of considerations. The first, which is raised by the UK, is constitutional consideration. So we all know Article 21 is more limited than the treaty -making capacity. So if you take the text as it is, would it be compatible with Article 21A, which after all focuses on prevention of international spread of disease? And that is a point that
we touched in the IHR review committee on the amendments, of which I was a member. Because I remember we had more than one briefing with delegations during our work, and this issue was raised. And we, at least from our perspective, which was not political, it was more technical, we tried to be reassuring that there can be plausible argument to make a point, a strong point, that what now figures in the pandemic agreement draft,
can be compatible with Article 21A. And I would say for three reasons. The first is that the Constitution goes back to 1946. Prevention in 1946 is not what is prevention in 2024. You need to see it as in a much more holistic way. Second, because you can make a strong case that, for example, the equity approach, where more people around the world have easier access to countermeasures and so on, will prevent a further international spread of disease.
And so you can clearly make an argument that they are not incompatible. And the third, because the 2005 IHR have already gone beyond pure prevention, just a fake Article 43, these are all response measures. And nobody complained at the time that the IHR 2005 were inconsistent with Article 21A. So personally, I don't think that there is a constitutional bar.
to consider an Article 21 solution for the whole agreement. What would be the consequences? The first is, again, the different mechanisms for entering into force, but again, with no illusion that that's a panacea for universality, because countries do opt out, countries do make reservations. If you look at the history of the earlier regulations, many countries made reservations. It took a number of years to straighten out those points.
There is a pressure towards inclusion, but it's not foolproof. The second is governance. By default, a regulation will be under the WHA. There will be no separate COP. With the need to devote enough time, and that was implementation committee just introduced now does, to have a dedicated time when states discuss together implementation issues. But the WHA will be the COP.
of the IHR with all the pros and cons, if you want. Using the nomenclature regulation of the IHR are very integrated in WHO, in the institutional frame. WHO is automatically the secretariat of the regulations. The expenses of the organization are part of the budget of WHO. There's no separate budget for the IHR. So in terms of participation,
That I think is in the hands of member states. I don't see why a regulation should exclude stakeholders and a treaty include them. They're really up to member states how they want to modulate that. Additional instruments. Now, as you know, we have a number of annexes to the IHR that have been adopted together, but have been amended, and so on. You could have the same process for hypothetical protocols to an Article 21 pandemic agreement.
They will enter into force with the same mechanism of the IHR, deadlines, opt out, and so on. But there's no particular bar to developing new instruments that will be part of the overall package.
So yeah, the one point that has been mentioned on and off, but also outside of this room, is the national level. How do states treat regulations? And we don't have a clear picture. It's a bit anecdotal. There has never been a survey of how states have implemented, the IHR, for example, domestically. There's a number of countries that consider it like treaties.
They go through the same process and so on. Other countries don't. Some countries require going through parliament, requires a full cabinet approval. Other countries don't. They remain confined to the Ministry of Health. So that's an important point, because you need this kind of whole government buy -in, especially on an instrument of this ambition and this scope to make sure that you really have full commitment at the highest political level. That's for me, it's an issue that has not been easily discussed because it really depends on what countries do at the constitutional level. But it shouldn't be forgotten in weighing Article 19 versus Article 21. Thank you very much. Thank you. Thank you very much. Also, thank you for bringing us the issue of what is the INB trying to do? Because we were asked to do something and...
So far, Professor, we have not identified any dissonant note from the 194 members. They are all engaged in trying to get a result that is possibly the reason why it's still not possible, because it's a very tall task for us to fulfill. we were granted an extension of our mandate. But do know that all the INB has to do is to
submit the outcome. Anything can also happen in the WHA, different choices of legal avenues and different even approach or not even adoption of the outcome will be. So as the INB, we are conscious of our task and I think that is the beauty of this exercise. We from the Bureau see the commitment from all countries in different shapes and notes and nuances, which is normal as you have mentioned, different
domestically impulses and ratification processes. But so far we are very happy to see this global commitment from all participants to reach a result and to reach a result that is both meaningful, stepping away from status quo, ambitious enough for us to make a difference, but also balanced and operational and implementable, not anything that would solve all of the problems of the world.
but it would begin to solve the problem of pandemic preparedness, prevention, and response. Now, we are reaching the end of our discussions. We have the request from Professor Habibi from Ottawa, if she is in Ottawa, gratitude for waking up so early to be with us. That is not an easy task. But I also invite the relevant stakeholders to ask questions.
and participate in this dialogue before we are forced actually to finish. So after Professor Habibi, we have Steve wishing also for the floor. Dr. Rujer, you have the floor.
Thank you very much, Ambassador. And I'll try to be very, very quick. And it is indeed close to 5 a here. I've been up for since 2 a So I apologize if I've missed not been able to be on point today. But this is the state of the world we're in. And I'm happy to make a sacrifice occasionally to wake up early for other colleagues who often have to wake up early, especially in the Pacific. Just wanted to recap what I've heard overall from the discussions. think what what
should be the takeaway from member states is that there's not a lot of dissonance even between the experts here on the call today in terms of the fact that there is no great option, like no clear winner in terms of the path that member states have to pursue, whether it's protocols, whether there is linking of protocols and entry upon linking the entry into force of the treaty to protocol negotiations, whether it's Article 21 for the whole instrument or Article 21 for the protocol itself.
There's various modalities. I've noted five of them here. I'm happy to relay the notes to the secretary if helpful. But you have to choose whether you want agility in your treaty or whether you want expansiveness, whether you want universality, whether it's more important to have a treaty now and to kick the can down the line for discussions. I think there was some chat discussions just pointing me to pronounce on what legal
maybe procedure is best and again, like all the other, interveners on this call, I'm not able to too firmly say. I there's pros and cons to many to the many approaches that have been listed. What I will say is go back to this question of scope. I have opted not to speak where I agree with something that has already been said, but I think on this point, it's pretty important for me to speak up as well and say that I think the scope of
is, in fact, to prevent the international spread of disease. As Professor Burci has said, what that was in 1945 has very much changed, or 1948 has very much changed today. One health is very much part of preventing the international spread of disease. Vaccines are very much part of preventing the international spread of disease. So it's really up to the states themselves to decide how far they're willing to go in interpreting this. What I will say, and I'm going to really
liked Professor Taylor's point on this, it seems that we need to remember that it's always impossible until it's done. that the shift, the normative shift that we need to make always seems like an insurmountable obstacle until that obstacle is met and overcome. The FCTC is an excellent example of this. Against all odds, against so many barriers to negotiating this treaty, it was done.
And it stands today as the only example of a WHO treaty. I would just say, you know, leave states with this will to be bold and creative, as Steve Sullivan has so aptly said as well. And just wanted to align myself with all those comments around scope being quite as broad as you would like it to be, as long as it prevents the international spread of disease. Thank you. Thank you very much. Steve, you have one minute.
Thank you very much, Ambassador Tovar. So on the question of interpreting Article 21A, just two points to make quickly. First, looking at the language on its face, its regulations concerning sanitary and quarantine requirements and other procedures designed to prevent the international spread of disease.
One of the key words to focus on here is not sanitary requirements, not quarantine requirements, but procedures designed to prevent the international spread of disease. Why do we say that you, member states, have interpreted that broadly in the IHR? You just need to look at Article II of the IHR, which is the scope, and you use the words that go beyond prevent. So in your view, if you look at Article II of the IHR,
The purpose and scope of the regulations are to prevent, comma, protect against, comma, control, and provide a public health response to the international spread of disease. So arguably, you were reading the word prevent in Article 21 to include responding to, protecting against, and your elaboration of core capacities are all about preparedness for.
So arguably you were using, you understood prevent in Article 21 to include preparedness as well. So whatever it meant in 1946, and there is indications that the drafters did have a broad understanding, you can look at that. But you can also look at what you did in 2005, literally what you said in Article 2 as to what prevention means. So that informs you somewhat about how you've been looking at this. And then final word.
How do we know that it's you who decide? The reference point here is Article 75 of the Constitution, which says any question concerning the interpretation of the Constitution, the interpretation of Article 21A, which is not settled by negotiation or by the Health Assembly. And then can go to the ICJ. But the point is, what it means is you settle interpretation questions in the Health Assembly. Thank you very much.
Unfortunately, we're out of time, but I need to manifest the deepest gratitude from the Bureau and on behalf also of Anne -Claire. Ambassador Anne -Claire had another health commitment. She has to chair outside Geneva, but she was able to join us at the beginning. And on behalf of the entire Bureau, with the thanks to the Secretariat, allow me to thank all the resource people that were able to participate in this interactive dialogue.
all relevant stakeholders that are also with us and the member states were able to take part in this exercise. It is a very important issue and I think we have more elements now for member states to decide either within the INB but also at the appropriate time at WHA. We thank you very much. Special thanks to Professor Habibi from Ottawa that was able to be with us at such early hour in Canada.
Thank you once more and now we will shift almost immediately to a meeting to be chaired by precious Matsouzo and Ambassador Ramadan with a break of four and a half minutes.
Why are these people even allowed to be in their positions of power when there are hundreds of millions of people around the world who outnumbered them? How in the world are we letting a handful of evil scumbags speak for us? How did we even GT here? Why is the world not up in arms removing this evil BEFORE they have a chance to destroy us all? Does anybody for the love of God have an honest answer? Why are we even allowing the W EF or WHO or whatever the hell it is to even remain a group?
Why are we not labeling them a terrorist organization which is exactly what they ARE and running them out on a rail?
Do we have a military? Do we have anybody with an ounce of patriotism or an ounce of common friggin cents among us? if you die underneath this thing, your fault. Who gives a shit what Taylor Swift is doing or what the football team is doing? They’re not going to save your lives people. It’s time to snap out of the Funk. You’re in and get the program! Two seconds left in the game And we’re on the yard line hoping for a Hail Mary pass. It’s time to pull your head out of your fingers and get it done because this is your last chance. !!!!
The Summit of the Future is Only Weeks Away Yet the Public Remains Ignorant
With the UN’s Summit of the Future less than 20 days away the vast majority of the public has no idea governments of the world are set to sign the so-called Pact for the Future. https://lionessofjudah.substack.com/p/the-summit-of-the-future-is-only