Despite the huge human and economic cost of  COVID-19, over two years of negotiations and substantial diplomatic pressure, the World Health Organization’s (WHO) Intergovernmental Negotiating Body (INB) failed to reach consensus on a pandemic agreement by Friday (10 May), the last scheduled day of negotiations before the upcoming  77th World Health Assembly (WHA).

But the exhausted INB delegates have resolved to solider on with talks right up to the eve of the WHA, which begins on 27 May.

Briefing a handful of media left at the Geneva headquarters on Friday night, co-chairs Roland Driece and Precious Matsoso said the negotiations had finally started to make progress in the past two weeks.

“The closer you get to the endpoint, the more willingness there is to move. We worked very hard and deep into the night, but there’s just so much so many issues that we need to agree upon and which are sometimes very technical or political,” said Driece.

“I think this is the last mile,” said Matsoso, adding that One Health, pathogen access and benefit-sharing (PABS), intellectual property and human resources had preoccupied delegates – although the human resources article was almost entirely “yellowed”, which meant it had been agreed by the working group.

The INB has developed a schedule of work based on significant areas that still lacked convergence, she added.

“Of course PABS is one… But once you get that, the rest is history,” said Matsoso. “You may ask  why we have given PABS so much attention. It’s because they all say it’s the heart, so if it doesn’t go with the instrument, it means there will be no heartbeat.”

She added that there would be one or two days’ work interspersed with breaks in the next two weeks, but that the actual dates still had to be agreed on.

Earlier, some delegates told Health Policy Watch there was simply was not enough time to attend to the outstanding issues. Others, notably Eswatini, remained more hopeful saying that if INB reconvened in the week before the WHA, scheduled to start on 27 May, many of the outstanding gaps could potentially be closed. 

“If we can work intelligently and with dedication, I think we can deliver a stronger outcome at the World Health Assembly,” the delegate said.

INB’s mandate

“Our mandate is to report to the WHA on the outcome of the process, and that is what we will do,” said Driece. “And the outcome will be where we will be a day before the WHA. We do hope if we put all the efforts in that it’s going to be with the final agreements. But if not, we just report on where we are at that moment.”

If no agreement is reached in the next two weeks, other options include an extended WHA running into June, a WHA Special Session in November or December or – the least popular option – postponing the deadline until the next WHA in May 2025.

Whatever happens in the next two weeks, the INB is obliged to report an outcome at the WHA, including sharing the latest draft of the agreement so far, including all of the bracketed, green and yellow text, WHO’s legal department has reportedly told delegates on Friday.  The INB will also recommend a way forward on final negotiations, with the WHA making the final decision.  

WHO chief legal officer Steven Solomon told the media briefing that “the INB wants to provide the assembly with a basis to consider their two and a half years of work. They want to meet their mandate to give the assembly a basis to consider their work.”

Solomon added that there is confusion about what adoption by the WHA means.

“Adoption doesn’t mean the treaty applies to any country. It’s the start of a process by which countries go back and consider whether this instrument makes sense for them. They would consider, at the domestic level, whether they should ratify the agreement.

“What I’ve seen in the press, and in, particularly social media, is the view that if it’s adopted, then it applies. You all know that’s not the case, but it’s not necessarily clear.

“And I guess the other thing I’d say is that every negotiation of every international agreement, begins as a marathon and finishes with a sprint. Member states have been running this marathon for two and a half years, and they’re in the sprint phase now. That shows their commitment to to achieving a result that delivers both global health equity and global health security, and is effective at preventing future pandemics and responding to them.”

Important progress

However, WHO officials, INB members and stakeholders stressed that the agreements, even in principle, on key points regarding equity, benefit sharing and technology transfer that have been reached so far are important for advancing equitable access to medicines and vaccines.

Provided there is no backsliding in subsequent rounds of negotiations, these would represent important, albeit imperfect, advances in preparing for and responding to the next pandemic. 

Draft text from late Thursday reflected the still large areas of disagreement with a number of critical articles still to be discussed. 

Friday morning’s session did not return to disputed articles but discussed various definitions. This is important for amendments to the International Health Regulations (IHR), due to be finalised in the coming week, which are supposed to use common definitions.

Knowledge Ecology International’s James Love told Health Policy Watch that, while the current text did not go far enough in many aspects to ensure equitable access to pandemic medicines and vaccines, there were important advances.

In Article 12, which deals with pathogen access and benefit sharing (PABS), “every version has some amount of vaccines that will be available to the WHO for free and affordable prices”, said Love. 

“Some people would like, more some people would like less, but no one is arguing it would be zero. So if that succeeds, it will definitely expand access.”

The current draft has two versions – either “up to” or “at least” 20% of health-related pandemic health products being allocated to the WHO for distribution. 

Love also said that a number of the articles also established new norms – such as on public money invested in research and development (R&D), technology transfer and global supply chains.

Putting an obligation on countries that fund R&D of pandemic products to “look after the access conditions” of whatever medicines and vaccines are produced as a result of their investment, not only in their own countries but worldwide, particularly in developing countries, is “something brand new”, said Love. 

While much of the language on technology transfer (Article 7) is not binding, the text does mandate countries and the WHO to move ahead on this, ditto with the establishment of global supply chains.

The progress achieved by those who believe in a multilateral approach to pandemic prevention could, however, be viewed as a setback by ultra-nationalists that would rather go it alone even in a pandemic, sources here warned.

For instance, parts of the media in the United Kingdom have been claiming, somewhat hysterically, that an agreement on benefit sharing would mean the UK would have to give up 25% of its vaccines in future pandemics.  But this is a distortion of the agreement, WHO officials have pointed out. 

Like any international instrument, the proposed agreement would be subject to ratification and countries’ sovereign laws – even though pathogens know no boundaries.