In December 2021, the member states of the World Health Organization decided “to draft and negotiate a WHO convention, agreement or other international instrument on pandemic prevention, preparedness and response”, which became known as the Pandemic Agreement.
This morning, after over three years of talks, the World Health Organization (WHO) member states successfully concluded the Pandemic Agreement.
The objective of the undertaking was to negotiate a binding instrument containing provisions to ensure that the inequities seen during the Covid-19 pandemic would become a thing of the past. In the last three years, there have been several difficult moments when parties and observers doubted that concluding the agreement within the set time frame was possible.
In December 2021, the atmosphere was one of ambition and solidarity. However, this evaporated quickly once the Bureau, leading the negotiations, proposed a first draft (called the zero draft) of the negotiating text. Serious disagreements emerged about important issues, in particular those related to measures to ensure access to pandemic products.
Transfer of technology and other intellectual property issues became flashpoints. In particular, high-income countries insisted that the transfer of technology only ever should take place on “voluntary and mutually agreed terms”. The European Union, in particular, took a hard line, and at some point in the process, it looked as if the talks would break down over the word “voluntary”.
Technology transfer and access to manufacturing know-how and IP are essential to expand, accelerate and diversify the production of pandemic products. Voluntary sharing of technology and manufacturing can contribute to pandemic preparedness and response. But if rights holders refuse to come forward on a voluntary basis, the government need to be able to take action to ensure access to pandemic technologies.
Therefore, with regard to Article 11, which addresses technology transfer, there is relief that no more damage was done in the final stage of the negotiations. Until the final hours, some high-income countries continued to insist that such transfer should only ever be voluntary. And that is not what the final text says. The footnote clarifying “mutually agreed terms” under which technology transfer should occur reads: For the purposes of this agreement, “as mutually agreed” means willingly undertaken and on mutually agreed terms, without prejudice to the rights and obligations of the Parties under other international agreements. This text recognises that if the willingness to “mutually agree” is not there, governments can take other measures to make technology transfer happen.
Compared to the ambitions and expectations of three years ago, the outcome is not as strong as it should be. While all key issues are addressed in one way or another, there are few hard new obligations for member states. Many of the provisions are couched in non-commital language, allowing for action only ‘when deemed appropriate’, for example. Such terms leave it unclear what the actual obligation of member states is.
Taking a more optimistic view, it is important to recognise that, in a relatively short amount of time -three years is a stellar speed for drafting international agreements – WHO member states laid down a framework for more intense collaboration to prevent disease outbreaks, to be better prepared and to respond to future pandemics. Including, greater equity in sharing of pandemic health products. This is no small feat and a victory for multilateralism.
Rights holders of intellectual property on pandemic medical products should now come forward and commit to working with mechanisms set up to facilitate voluntary technology transfer, such as the WHO Health Technology Access Pool and the Medicines Patent Pool, to be ready when the next disease outbreak hits.
In May, the World Health Assembly is expected to adopt the agreement, after which the ratification process can begin.
Ellen ‘t Hoen, LLM PhD, is a lawyer and public health advocate with over 30 years of experience working on pharmaceutical and intellectual property policies.