Despite much lost sleep for members of the World Health Organization’s (WHO) intergovernmental negotiating body (INB) this week, it is impossible for consensus on a pandemic agreement to be reached by the end of Friday (10 May), the last day of this final round of negotiations.

Various negotiators Health Policy Watch that they did not see how the deadline could be met, especially as on Thursday co-chair Precious Matsoso ruled out extending talks to the weekend, saying that member states needed to travel back to their countries.

The agreement was supposed to be presented to the World Health Assembly (WHA)  which starts on 27 May, for ratification. But now that this will not happen, sources close to the process say that two possible scenarios are being discussed.

Special WHA?

The one is that the INB is extended by six months, and that a WHA special session (WHASS) is called for the end of  the year to consider the pandemic agreement – as was the case in November 2021, when a WHASS agreed to embark on the pandemic agreement negotiations.

The second option is for the deadline to be pushed for a full year, with the agreement being presented to the 2025 WHA.

By Thursday evening, there were more articles in the draft agreement lacking agreement than those that had been green-lighted. 

Some of the thorniest issues – One Health (Articles 4 and 5), pathogen access and benefit-sharing, PABS (Article 12) and financing (Article 20) – still lack consensus.

However, agreement has largely been reached on Articles 6 (preparedness), 7 (workforce), 8 (communication), 9 (research and development), 10 (diversified production) 11 (tech transfer); 13 (supply chain); 13bis (procurement); 17 (whole of government) and 19 (cooperation).

Meanwhile, reliable sources told Health Policy Watch that Botswana, Kenya and Ethiopia now align with the Global North on PABS, One Health, and “mutually agreed terms” in Article 11, which may tip the balance of power in talks. Until now, the Africa group has operated in unison but the EU. However, Health Policy Watch was unable to confirm this with the delegations.

There is no time to schedule additional negotiating time in the next two weeks as a number of other urgent meetings are scheduled, including the Working Group on Amendments to the International Health Regulations (WGIHR) and the Programme, Budget and Administration Committee of the Executive Board (PBAC).

🧱While discussions are ongoing (including late tonight) and progress in many areas, there is just too much work left.

⌚️INB9 will not be extended past tomorrow (12 pm at the latest). There will be a stocking tomorrow afternoon or evening to take stock of next steps.

— Nina Schwalbe (@nschwalbe) May 9, 2024

Speaking after the 2021 WHASS, WHO Director General Dr Tedros Adhanom Ghebreyusus said that the agreement “will not solve every problem, but it will provide the overarching framework to foster greater international cooperation and provide a platform for strengthening global health security”.

However, after two years of negotiations, this framework has proved elusive. 

“With how much stuff they have to go through, it’s practically impossible to see how they will meet the deadline and there is still fundamental disagreement on the big ticket items,” said Nina Schwalbe, CEO of Spark Street Advisors and a key commentator on the process.

Many member states have criticised the Bureau’s handling of the talks, with some saying too much time was spent on a few areas of disagreement such as PABS, instead of nailing down agreement on other clauses.

‘Hardcore’ Northern trade negotiators

“Part of the problem is not the differences. What’s left for the PABS right now, for instance, is really a handful of words, compared to all the other text brackets and non-consensual  clauses still out there” said James Love, Director of Knowledge Ecology International (KEI), which is a key NGO stakeholder in the talks.

“You’ve got over 30 Articles, and that is a much larger challenge.” 

Love added that “hardcore trade and foreign policy people have been running the negotiations for the North”, and they have been intent on getting precedents on issues such as intellectual property (IP) rights and technology transfer.

The governments of the EU, US, Switzerland and Japan have largely been seen to be protecting the substantial pharmaceutical industries in their countries.

According to the World Trade Organization’s (WTO) rules, countries are able to overrule IP rights in certain instances – referred to as the Trade-Related Aspects of Intellectual Property Rights (TRIPS) flexibilities.

But some countries that have planned to use TRIPS flexibilities to override patents to address health challenges have been threatened with sanction by the US and the European Union (EU) in particular, if they did.

Developing countries want a clause in the agreement – Article 4bis, referred to by negotiators as the “peace clause” –  explicitly stating that parties to the agreement “shall not challenge, or otherwise exercise any direct or indirect pressure on the parties that undermine the right of WTO members to use TRIPS flexibilities at any multilateral, regional, bilateral, judicial or diplomatic forum” . 

But this has been rejected by the EU and the US and is proving to be an obstacle to consensus. 

Ironically, the EU is in the process of adopting legislation to enable EU-wide compulsory licencing in crisis situations. Meanwhile, US security laws permit it to do just this.

Myriad of outstanding details

There are a myriad of other details in the complex agreement still to be ironed out, including on One Health – or how to address zoonotic challenges. But as other agencies such as the UN Food and Agricultural Organization (FAO) will have to be included in this, the draft agreement proposes a May 2026 deadline for sorting out the details.

The same deadline has been proposed to agree on the parameters for a WHO PABS system.

Yet even with these decisions kicked down the road, consensus within the time frame has proved elusive. 

With a single day left, negotiators are going to spend the latter part of Friday discussing a way forward for the talks.