Concerns over equitable access in latest WHO Pandemic Agreement

Dr James Scheibner, Lecturer in Law at Flinders University, warns of a weakening of future technology transfer for pandemic response products.

As the COVID-19 death toll continues, is the world prepared for a rapid and more effective response to safeguard populations against future pandemic?

The latest draft of the World Health Organization (WHO) Pandemic Agreement, published 22 April 2024, contains important provisions ensuring transparency regarding research and purchase contracts for ‘pandemic-related health products’. These pandemic health related products could include vaccines and therapeutics used to fight a future pandemic.

However, this draft significantly weakens the requirements regarding technology transfer for intellectual property over pandemic related health products compared to earlier drafts.

The initial goal of the proposed WHO Pandemic Agreement was to fill gaps in international law which led to such significant divergences in health outcomes between countries during the COVID-19 pandemic, as a recent editorial in the Lancet notes. Earlier drafts of this agreement sought to enforce binding obligations on States, international organisations and private companies to ensure equitable access to pandemic related products.

Notably, the agreement requires countries to ensure government-funded research and development agreements, along with licensing agreements, are published. Further, the agreement requires countries to ensure that government funded purchase agreements are made publicly available.

However, many other requirements within the latest draft of the agreement have been weakened by the inclusion of words such as ‘as appropriate’ or ‘subject to applicable law’.

Another key goal of earlier drafts of the agreement was to encourage technology transfer between developed and developing countries. However, many of these requirements are now subject to ‘mutually agreed terms’.

The use of this term does not recognise that voluntary measures are sometimes not enough to overcome gaps in supply, and that mandatory measures may be required to encourage access.

Finally, the agreement reserves the right of countries to rely on flexibilities which permit intellectual property rights to be superseded during public health emergencies. However, there is no requirement for countries to implement these flexibilities into national law. Therefore, this latest draft significantly weakens the requirements regarding technology transfer for intellectual property over pandemic related health products compared to earlier drafts.

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 unclear where negotiators at the intergovernmental governmental negotiating body will find concensus to creaete a meaningful and effective treaty.

What is the WHO Pandemic Agreement?

The initial goal of the agreement was to create an international instrument which would clarify the obligations of countries, private organisations and international organisations during pandemics. By clarifying these obligations, the agreement seeks to facilitate international cooperation during a pandemic as well as require countries to strengthen their healthcare systems to respond to pandemics.

Under the agreement, countries will achieve these goals by improving their public health monitoring, protecting their healthcare workforces and investing in pandemic response capacities. The agreement is also intended to address concerns over equity in health outcomes between developed and developing countries during pandemic.

A variety of different strategies, including pathogen access and benefit sharing, investment in research and development, technology transfer and pooling intellectual property, were proposed to achieve this goal in earlier drafts. However, the April draft weakens the obligations on countries to use these mechanisms or has postponed their negotiation to future instruments.

Ritchelle Drilon

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Ritchelle is a Content Producer for Healthcare Channel, Australia’s premier resource of information for healthcare.

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