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While the next draft of the World Health Organization’s (WHO) pandemic agreement is due to be sent to member states by Thursday (18 April), it is likely to be stripped of contentious clauses.

Instead, the draft – and indeed, the pandemic agreement to be put to the World Health Assembly (WHA) at the end of  May – will be an “instrument of essentials”; a basic text that will be fleshed out by further talks in the next couple of years, as reported recently by Health Policy Watch.

After the WHA has adopted the framework, more details will be fleshed out over the next 12 to 24 months. Thereafter, a  Conference of Parties has been proposed, but sources close to the discussions say this is only likely to convene in the latter half of 2026 – so fingers crossed that there’s no pandemic before that!

 The Vice-Chair of the Bureau of the Intergovernmental Negotiating Body (INB), Dr.  Viroj Tangcharoensathien of Thailand, has proposed a new timeline of May 2026 to conclude negotiations on a Pathogen Access and Benefit Sharing (PABS) System.

The Vice-Chair made this proposal in his presentation during the informal session on Article 12 held on 8 April at the WHO Headquarters in Geneva, a hybrid mode. The last slide of his presentation contains the new timeline, which states: “Terms, conditions and operational modalities of the PABS System shall be further defined in a legally binding instrument that is operational no later than 31 May 2026”.

World Health Organization members' negotiations on a pandemic preparedness treaty remain rocky less than two months before the intended deadline, as industrialized and developing nations butt heads over technology access.

Talks began in December 2021 with countries hoping to apply lessons from the slow COVID-19 response to prepare for the next pandemic. After two years of negotiating the contents, the plan was to reach an accord at the negotiating body's meeting last month.

That meeting ended on March 28 with no agreement, after failing to bridge the gap between India and African countries pushing for greater fairness in areas such as drug distribution, and the U.S., Japan and European countries seeking to avoid heavy financial burdens and transfers of valuable technology.

Global interest in the issue is also ebbing as countries focus on new crises such as the wars in Ukraine and the Middle East.

"If we miss this opportunity, we risk losing momentum," WHO Director-General Tedros Adhanom Ghebreyesus said on the first day of the meeting.

A major point of contention is how to handle technologies developed by drugmakers.

In the Geneva Health Files, we proposed a robust Pathogen Access and Benefits (PABS) system that imposes binding obligations on users of biological materials and genetic sequence data (GSD) to make mandatory monetary contributions. PABS is necessary but not sufficient to ensure equity. There is still important work to do on intellectual property waivers and technology transfers. But PABS is important. The Africa Group and the Equity Group are unlikely to acquiesce to a treaty without a strong PABS system. At the same time, GHF recently reported that the pharma industry is warming up to PABS, but wants unconditional access sans benefit sharing obligations. That’s a non-starter.

On Tuesday, 2 April 2024, Politico published the onscreen text WHO pandemic treaty text of Wednesday, 27 March 2024; the time stamp of this 110 page text is 12:44 CET. Article 11 of the proposed agreement contains provisions on transfer of technology and know-how. Nestled within article 11 is paragraph 4bis, the peace clause. The 27 March 2024 pandemic treaty text can be found here: https://keionline.org/misc-docs/who/inb9.wed.27march.pdf

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WHO Member States have decided to hold another round of negotiations on the pandemic instrument with an aim to finalise it before the 77^th World Health Assembly (WHA) to be held 27 May – 2 June in Geneva.

The lack of consensus during the 9th meeting of the Intergovernmental Negotiating Body (INB9) on the pandemic instrument led to the decision to hold the resumed session of INB9 based on a draft text prepared by the Bureau with the assistance of the WHO Secretariat.

Médecins Sans Frontières/Doctors Without Borders (MSF) acknowledges the progress made by member states negotiating the Pandemic Agreement. The current text shows notable improvements compared to the previous draft, particularly in areas such as stockpiling and allocation. It reinforces the importance of respecting flexibilities within the TRIPS Agreement and includes better language regarding access provisions in public funding agreements for research and development (R&D). We also commend the efforts made to enhance provisions related to technology transfer and licensing of government-owned or funded technologies. Transparency measures across supply chains and in public procurement agreements have also been improved.

However, there are outstanding issues that need to be addressed immediately to ensure a comprehensive agreement that prioritises the needs of people in humanitarian and resource-limited settings.

Transparency

The negotiations on a WHO pandemic agreement should be more transparent. The negotiating texts with attributed country positions should be public and the meetings should be webcast. These are reasonable expectations. The World Intellectual Property Organization (WIPO) operates in this way; it even allows stakeholders to listen to informal negotiations on texts and has demonstrated an ability to adopt treaties on topics of considerable controversy and with commercial consequences.

There is considerable paranoia and misinformation about the WHO in social media, and the unnecessary secrecy of this negotiation is not helpful. While the texts are often leaked, both industry and several well-informed civil society groups have access, and some can afford to attend the negotiations, the general public is locked out. The lack of transparency erodes confidence in the WHO in general and the pandemic agreement in particular.

The idea of an international pandemic treaty is to avoid repeating the failures that occurred during the COVID-19 crisis. Many things did not work, but the most glaring failure was the unequal distribution of, and access to, vaccines, diagnostics and treatments. An international treaty based on the principles of equity, inclusiveness and transparency is needed to ensure universal and equitable access.

One of the most important Intellectual Property (IP) problems which the Pandemic Accord negotiators need to solve is now in danger of being completely ignored. This is the problem of guaranteeing access to ‘undisclosed information’, also known as ‘know-how’. Such undisclosed information is typically held in secret by pharmaceutical companies but can often be necessary to enable the large-scale production of pandemic countermeasures such as medicines, vaccines and diagnostics. If access to such undisclosed information is not guaranteed then, even if all the patent-related barriers are overcome during a future pandemic by compulsory licensing or otherwise, there will still be no certainty that the large-scale production of particular pandemic countermeasures will be able to take place. This would surely represent a critical failure of the Pandemic Accord process. 

In the apparent absence of any other attempts to solve this problem, we therefore propose the following provision for insertion as a separate sub-section in Article 11 of the draft Pandemic Accord:

Article 11: Transfer of Technology