World Health Organization (WHO) member states abandoned careful diplomatic language at the start of the final round of negotiations for a pandemic agreement on Monday (18 March), exposing deep divisions between countries from the global North and South.

An unprecedented 11 African countries spoke during the two-hour opening session, largely expressing support for the latest pandemic agreement draft as a “good start” for text-based negotiations.

But the opposite was so for developed countries. Switzerland, which is home to numerous pharmaceutical companies, said that it “does not accept the text in its current state”. 

The US and UK said it was a “step backwards” – as did the International Federation of Pharmaceutical Manufacturers and Associations (IFPMA) commenting during the later stakeholder session.

Africa stands firm on PABS

Ethiopia, on behalf of the African region’s 47 member states and Egypt, wants “concrete outcomes” on key priorities, including “a pathogen access and benefit-sharing system (PABS) that establishes on an equal footing footing a multilateral system with binding terms and conditions for access and legal certainty or for sharing of both monetary and non-monetary benefit”.

PABS is one of the most contentious clauses of the draft text. Article 12 proposes a WHO PABS system whereby countries share biological materials and genetic sequence data (GSD) of pathogens with pandemic potential with a “WHO-coordinated laboratory networks (CLNs) and sequence databases (SDBs)”.

If manufacturers want access to these, they will need to conclude legally binding contracts with WHO, pay annual contributions, and reserve 10% of pandemic products produced as a result to be distributed for free and 10% at not-for-profit prices during pandemics and outbreaks of international concern.

South Africa stated further terms related to PABS: “We highlight the sovereign right of member states to control access over their genetic resources. We emphasise that such multilateral PABS system must be on an equal footing with binding terms and conditions for access and legal certainty for sharing of both monetary and non monetary benefits.”

Bangladesh, representing a diverse group of 31 countries known as the Equity Group, wants “access to pathogens and benefit sharing on equal footing”.

Lack of legal certainty

Bangladesh also called for an action-oriented agreement with clear deliverables that addresses the lack of “legal certainty” for timely, equitable access to health products.

“To operationalize equity, we need to clearly delineate obligations with responsibilities on various parties, including mentioning developed countries vis a vis developing countries, which is missing in the current negotiating text,” said India for the WHO South East Asia Region (SEARO). 

“We are not supportive of any parallel or breakaway sessions or processes where small delegations will possibly be left out,” it added – something that developed countries support but smaller delegations say they cannot manage.

Australia, speaking for Canada, New Zealand, Norway and the United Kingdom, called for “significant pragmatism and a fundamental change in the way that we are working” to get to an agreement. 

“The proposed text, in addition to not being streamlined into clear legal commitments, does not fully capitalise on the progress made through the subgroups. It includes concerning elements that do not bring us closer but rather contribute to polarisation and significant aspects that are neither practical nor implementable,” added Australia.

“We have to be ready to be frank with one another. Listen carefully and find common ground and we need working modalities that enable us to do that.” 

‘Red lines’ included

“At this late stage, it is not productive to reintroduce challenging concepts such as CBDR [common but differentiated responsibility], intellectual property waivers and new funding vehicles that do not have a chance of achieving consensus,” said the US.

“We have stated very clearly on multiple occasions that these are red lines,” it added. “We have run out of time to be revisiting provisions that are not implementable, not feasible or contrary to national law.”

The European Union (EU) lamented the “significant dilution” of pandemic prevention and preparedness. It also claimed that the text “could have been an opportunity to find an agreement in key areas such as technology transfer and intellectual property, financing, and PABS at the time where stakeholders have never been more ready to make a decisive contribution to benefit sharing” – but did not elaborate on what such an opportunity could look like. 

For Germany, the revised text “still contains some elements that have been clearly identified as non-consensual” as well as “still lacking crucial elements, for example, to improve prevention preparedness in order to make sure that we are not hit by a pandemic like COVID again”.

‘You can’t chicken out now’

“You can’t chicken out now. You’ve already agreed. So because this is now in a legal text, perhaps what you need to do is to determine which of those elements should be obligatory,” cajoled Precious Matsoso, co-chair of the intergovernmental negotiating body (INB) which has been steering the negotiations.

“One hundred percent said equity was important, finance was important, capacity building and strengthening of countries was important. Surely that can change now when you’re supposed to start the negotiations.”

But the INB Bureau was also criticised for not including in the text agreements reached in the four sub-groups that facilitated earlier negotiations and for dispensing with small group discussions.

Areas of agreement

Pointing to “critical areas” that still need to be agreed, WHO Director General Dr Tedros Adhanom Gebreyesus focused on what has been agreed: “Importantly, you agree on what you’re trying to achieve. You agree on the need for predictable and sustainable financing for pandemic preparedness and response. You agree on the need for an equitable system for access and benefits. You agree on the need to engage the private sector. 

“We would have a much bigger problem if you did not agree on the fundamental objectives of the agreement. But you do now you need to agree on how to achieve these objectives. I have every confidence that you can and will.”

Text-based negotiations are proceeding in plenary from now until the end of this ninth INB meeting on 28 March, the eve of Easter. Evening sessions will not go beyond 6.30pm to accommodate Muslim delegates observing Ramadan. However, a Saturday session has been added to give the process extra time.