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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.

The fractious pandemic agreement talks – supposed to end with an agreement on Thursday (28 March) – have limped into extra time, with World Health Organization (WHO) member states resolving to hold an additional intergovernmental negotiating body (INB) meeting from 29 April to 10 May.

The World Health Assembly (WHA), which begins on 27 May, is supposed to adopt the agreement, intended to be a global guide on how to prevent, prepare for, and respond to, pandemics.

But the best case scenario is for the WHA to adopt an “instrument of essentials”, a bare-bones text that will be fleshed out over the next 12 to 24 months in advance of the proposed Conference of Parties, according to people close to the talks.

At the briefing at the end of Thursday’s talks, which started almost four hours later than scheduled, INB co-chair Roland Driece said that “there is no champagne”.

“We had long intensive discussions, but we have not succeeded in concluding this meeting,” added Driece. 

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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 capriciousness of memory!!! It was only four years ago, yet it is difficult to recall the Covid 19 days. They seem so unreal. Did we really go through them? Such extreme isolation. The excessive loss of friends and family members. The fear for one’s life and fear for the lives of loved ones. Fear of the unknown and great uncertainty about everything. It seemed as though our lives had come to a standstill, and we wondered whether we would ever get back to the normal routine. But, looking back at it now, it appears as if we had only hit the pause button, and life is back on its usual track. However, leaving behind an exacerbation of several negative and social trends: more inequality, more poverty, more unemployment, and yes, poorer health status.

The WHO declared the spread of Covid 19 to be a pandemic on 11 March 2020.  India declared a nation-wide lockdown beginning from 23 March 2024. Both deserve to be called anniversaries. And being a death anniversary for an event that led to an estimated 7 million deaths (at least), it is time for a sober reflection.

Two final – and likely sleepless – weeks of negotiation on the pandemic agreement begin on Monday, and negotiators have been urged to bring in their principals to ensure speed up decision-making.

The negotiations may well be extended but, for now, this ninth meeting of the World Health Organization (WHO) intergovernmental negotiating body (INB) is set to end on the eve of the Easter weekend on 28 March and includes a weekend session.

“Since we have now a few weeks left, I think the engagement of the highest level of leaders will be important to give you more space for compromise because it’s through compromise and collaboration that we can get to the finish line,” WHO Director General Dr Tedros Adhanom Ghebreyesus told negotiators at the last INB meeting.

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

The Intergovernmental Negotiating Body (INB), which is tasked under WHO with drawing up an international instrument on pandemic prevention, preparedness, and response, will sit for the 9th and final time from March 18–29. In the 2 years since it first met, hundreds of hours and unknown costs have been spent, but the political impetus has died. The convention is now at a critical juncture: the final text for countries to ratify is due to be presented at the World Health Assembly in May. With only limited days of negotiation left and a long way to go to secure a meaningful agreement, it is now or never for a treaty that can make the world a safer place.