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Yesterday, a sample of the negotiating text for WHO’s Pandemic Accord was released. If this sample is anything to go by, there is a long way to go before countries reach a consensus.

The World Health Organisation (“WHO”) is presenting two new texts for adoption by its governing body, the 77th World Health Assembly, in Geneva, Switzerland, from 27 May to 1 June 2024.

The first new text is the new Pandemic Accord which needs a two-thirds majority for approval and, if and once adopted, will come into effect after 40 ratifications. WHO’s Pandemic Accord has also been referred to as the Pandemic Treaty, Pandemic Agreement and WHO Convention Agreement + (“WHO CA+”).

The second new text is the amendments to the International Health Regulations (“IHR”) which can be adopted by a simple majority and will be binding on all states unless they recorded reservations by the end of last year.

In December 2021, WHO established the Intergovernmental Negotiating Body (“INB”) to draft and negotiate a pandemic agreement.  From 18 March to 28 March, the ninth meeting of the INB (“INB 9”) has been taking place to negotiate the text of what is currently being called the Pandemic Accord. There are over 30 Articles in the text.

Yesterday, Knowledge Ecology International (“KEI”), a non-profit organisation which focuses on social justice, published a note from its director James Love regarding the negotiations on Article 11 of the Pandemic Accord.

“To get an idea of the challenges of getting agreement on the WHO Pandemic Accord text, consider the state of just one article [Article 11] on Saturday, 23 March 2024 … by the end of the day on Saturday, 50 countries or groups have at least one bracket in the Article,” he wrote.

The “brackets” Love is referring to are text enclosed in square brackets shown after sections of INB’s text.  The bracketed text shows proposed edits and abbreviations for the countries that are proposing the edit. “DEL” denotes that a country or countries want to delete INB’s text.

The negotiating text for Article 11 was originally published by Politico, however, it is behind a paywall.  To ensure it is widely and publicly available, KEI has uploaded the negotiating text for Article 11 onto its website.  That it was published behind a paywall and not made public by WHO is telling.  It is typical of the lack of transparency surrounding WHO’s process.

In the video below, Love, who is attending the negotiations at INB 9, explains more about the process and the secrecy that surrounds WHO’s negotiations and proposed text. 

“The reason why negotiations are going badly is because the countries are really divided on matters of substance,” he said. As at the close of the day on 26 March, there was “somewhere between 4,000 and 5,000 brackets of text.”

“It doesn’t take to a genius to figure out that the negotiators are pretty far apart on every single chapter [Article] in the text right now,” Love said.  He doesn’t believe an agreement will be reached on the Pandemic Accord at the upcoming World Health Assembly.

Below we have reproduced the negotiating text for Article 11.  Above each image is the INB’s text, and the image is the proposed edits.  You can view the PDF of the negotiating text for Article 11 on KEI’s website HERE.

Revised draft of the negotiating text of the WHO Pandemic Agreement

Article 11. Transfer of technology and know-how

1. In order to enable sufficient, sustainable and geographically-diversified production of pandemic-related products each Party, taking into account its national circumstances, shall:

(a) promote and otherwise facilitate or incentivize the transfer of technology and know-how for both pandemic-related and routine health products, including through the use of licensing and collaboration with regional or global technology transfer partnerships and initiatives, and in particular for the benefit of developing countries and for technologies that have received public funding for their development;

(b) promote the timely publication by private rights holders of the terms of licensing agreements and/or technology transfer agreements for pandemic-related products, in accordance with national laws;

(c) make available licenses, on a non-exclusive, worldwide and transparent basis and for the benefit of developing countries, for government-owned pandemic-related products, and shall publish the terms of these licenses at the earliest reasonable opportunity and in accordance with national laws; and

(d) provide, within its capabilities, support for capacity-building for the transfer of technology and know-how for pandemic-related products.

[SUPPORT Bureau text for Para 1: IND]

2. The Parties shall develop and strengthen, as appropriate, mechanisms coordinated by WHO with the participation of other relevant technology transfer mechanisms as well as other relevant organizations, to promote and facilitate the transfer of technology and know-how for pandemic-related products to geographically diverse research and development institutes and manufacturers, particularly in developing countries, through the pooling of knowledge, intellectual property, know-how and data to all developing countries.

3. During pandemics, in addition to the undertakings in paragraph 1 of this Article, each Party shall:

(a) encourage holders of relevant patents regarding pandemic-related products, in particular those who received public funding, to forgo or otherwise charge reasonable royalties to developing country manufacturers for the use, during the pandemic, of their technology and know-how for the production of pandemic-related products; and

(b) consider supporting, within the framework of relevant institutions, time-bound waivers of intellectual property rights to accelerate or scale up the manufacturing of pandemic related- products to the extent necessary to increase the availability and adequacy of affordable pandemic related- products.

4. The Parties that are WTO Members recognize that they have the right to use to the full, the flexibilities inherent in the TRIPS Agreement as reiterated in the Doha Declaration on the TRIPS Agreement and Public Health of 2001, which provide flexibility to protect public health including in future pandemics, and shall fully respect the use thereof by others.

5. Each Party shall, as necessary and appropriate, review and update its national legislation in order to ensure the implementation of such flexibilities referred to in paragraph 4 of this Article in a timely and effective manner.

6. The WHO Secretariat shall work towards the improvement of access to pandemic-related products, especially during pandemic emergencies, through transfer of technology and know-how, including through cooperation with relevant international organizations.