At the start of the seventh round of negotiations on a pandemic agreement on Monday, a number of European countries asserted that any changes to intellectual property (IP) rights should be thrashed out at the World Trade Organization (WTO) – not the World Health Organization (WHO). 

IP rights are one of the most controversial aspects of the pandemic agreement negotiations and, with a negotiating text finally before WHO member states, sharp disagreements were once again evident at the Monday plenary of the intergovernmental negotiating body (INB).

Describing the text as an “improvement”, the European Union nonetheless expressed concerns about clauses on IP, technology transfer and finance in the text.

Germany, Sweden, Ireland and the UK were more direct in their opposition to any attempts to undermine IP protection, stating that discussions belong at the WTO.

“Speaking as one of those Geneva ambassadors who has the good fortune to cover both the United Nations and the World Trade Organisation, I do need to reaffirm our conviction that the WTO is the appropriate forum to discuss our obligations on intellectual property,” said the UK representative.

Meanwhile, the US stated that “eliminating intellectual property protections will not effectively improve equitable access during pandemic emergencies, and will in fact harm the systems that have served us well in the past. 

“The United States believes strongly in IP protections which serve to fuel investment and innovation. We agree that more timely access to these innovations should be central to our discussions and are exploring options to prioritise the availability of medical counter-measures for developing countries during future pandemic emergencies.”

Articles 10 (on sustainable production) and 11 (tech transfer and know-how) appear to be the thorns in their flesh. 

Article 10 simply “encourages” entities – particularly those that get significant public financing – to grant “non-exclusive, royalty-free licences to any manufacturers, particularly from developing countries, to use their intellectual property” to develop “pre-pandemic and pandemic diagnostics, vaccines and therapeutics”.

Article 11 is more explicit, committing parties during pandemics to “time-bound waivers of intellectual property rights to accelerate or scale up the manufacturing of pandemic-related products”.

During the stakeholder session, Knowledge Ecology International (KEI) described the text’s provisions on IP limitation as “well-intentioned but problematic”.

“Parties do not need to refer to the WTO TRIPS agreement or a waiver. Global rules on exceptions are broad enough. What is needed is the implementation of laws and use of exceptions at the national level, to address IP issues in a way that is useful,” said KEI.

WTO appeals for synergies

The WTO appealed for “synergies and complementarity” between its processes and bodies and the “trade-related elements of the INB’s draft negotiating text”.

These include consideration by the TRIPS Council of extending “to COVID-19 therapeutics and diagnostics the 2022 ministerial decision on the TRIPS Agreement”, discussions in the Council for Trading Goods on “export restrictions, regulatory requirements, international coordination, transparency, and trade facilitation”, and “mapping manufacturing capacities and demand” to develop a “global supply chain and logistics network”. 

Meanwhile, the World Intellectual Property Organization (WIPO) asserted that “any outcome from the INB process should not affect the rights and obligations and the other existing international agreements” and that “protection of IP rights is important for the development of new medical products”.

Meanwhile, the International Federation of Pharmaceutical Manufacturers and Associations (IFPMA) said that the parts of the current text would undermine the innovation ecosystem that enabled the pharmaceutical industry’s “ability to rapidly develop medical countermeasures”.

The IFPMA also warned of “unnecessary bureaucratic hurdles” that “will deter the scientific research”.

“The draft lacks a clear strategy for a robust procurement mechanism for low-income countries and fails to adequately address trade barriers that could hinder the global distribution of medical supplies,” added the IFPMA.

‘Common but differentiated responsibilities’

The Equity Group and Africa Group objected to the removal of common but differentiated responsibilities (CBDR) – a term usually used in climate talks to indicate that, while all countries have responsibilities, economic differences mean they cannot all have the same level of responsibilities. 

The Equity Group, which represents 29 countries across regions – including Brazil, China, South Africa and Pakistan – stated that CBDR is important for “international solidarity and inclusivity”. 

“CBDR should be included in the treaty with a view to achieving equity and attaining the highest standard of health for all,” said South Africa for the Equity Group.

The group “has developed textual proposals to be included in the draft negotiating texts that will lead to the realisation of equity as a central mandate”, noted South Africa.

The group wants stronger equity language in eight sections: Article Seven (health and care workforce), Article Nine (research and development), Article 10 (sustainable production), Article 11 (technology transfer), Article 12 (access and benefit sharing), Article 13 (supply chain and logistics), Article 19 (implementation support) and Article 20 (financing). 

The Africa Group also appealed for health sector strengthening to include a prohibition on wealthy countries poaching health workers from poorer countries.

Lack of gender equity

Last week, Medecins sans Frontieres (MSF) noted that “there is no reference to sexual and reproductive rights services in the text, “gender equity” has been deleted from general principles, and “gender inequalities” is only mentioned in the articles on health workforce and international cooperation and collaboration.

The Pandemic Action Network (PAN) also raised the text’s failure to include “gender equity language for persons in vulnerable situations”. 

“Equity and human rights must explicitly include gender. Parties must agree to collect and report gender-disaggregated data, uphold social protections and protect the full spectrum of essential health services for all emergencies,” said PAN. 

The Office of the High Commissioner for Human Rights also noted the lack of references to gender and human rights (three mentions each).

Meanwhile, the Independent Panel on Pandemic Preparedness and Response called for “definitive, results-oriented language” that commits countries to invest in building regional resilience by defined dates. 

Modalities still undecided

There was widespread member state support for the start of “direct negotiations” focused on the most important aspects of the draft – which is now being referred to as an “agreement” – rather than the more legally binding accord or treaty.

However, there was also some support for the continuation of informal meetings to address contentious articles – particularly during the month-long break between the first part of this INB meeting this week and its second session on 4-6 December.

However, Ethiopia on behalf of the Africa Group, rejected the informal meetings as a “parallel process”.

The Africa and Equity Groups, as well as countries from the Americas, want to start with the most contentious part of the draft, Chapter Two which covers equity.

The INB co-chairs appealed for member states not to repeat their well-known positions “twenty months into negotiations”, but to move forward to find consensus.

The US also “urged consideration of industry and stakeholder views, which will be essential for the future implementation of this agreement”. 

“This outreach needs to be done with greater intensity given these partnerships will provide important information about the viability of many proposals in that text,” said the US.

Japan also requested dialogue with “relevant stakeholders, including research institutes, industry, and civil society”, particularly with “entities which will be involved in the implementation of this draft agreement”.

Israel-Palestine conflict clouds discussion

The Israeli-Palestinian conflict cast a long shadow over the INB meeting, with a number of countries stating their support of one or the other during their comments on the draft. The most tense exchange came from representatives of the territories.

“A pandemic situation is in front of our doors in Palestine as the sewage pumping system is not operational any more,” warned the representative from Palestine.

Palestine appealed for international assistance, including “air-tight body bags, help with extracting bodies, as well as trucks and bulldozers, medicines, medical equipment and, “the most urgent, water, food and fuel for hospitals, ambulances and health care access in general”.

“No place is safe in the occupied Palestinian territory – the West Bank including East Jerusalem and the Gaza Strip,” he concluded, noting that over 9000 Palestinians had been killed in the month-long conflict.

However, Israel’s representative accused the Palestinian Authority of giving “a free pass to a genocidal terrorist organisation which unleashed its terror on Israel people on October 7”.  

“It’s certainly perplexing that the delegation does not condemn the action of Hamas when on October 7, they committed the slaughter of Jewish people, not for anything they have done, but because of who they were. 

“When Hamas entered southern Israel and slaughtered, raped, tortured and murdered 1400 people, they were civilians,” noted Israel’s delegate, calling on Palestine to “condemn Hamas for using the Palestinians as humans shields and for “the slaughter of 1400 people on October 7,” he concluded.

The INB co-chairs allowed comments on the conflict but conceded at the close of the meeting that this had slowed progress and that Tuesday’s meeting would still need to decide on the modalities for negotiations.