By sunrise on Saturday morning, the entire draft pandemic agreement had been agreed on – bar the vexing question of whether technology transfer related to the production of pandemic products should always be voluntary.

Negotiators talked into the early hours of Saturday morning, trying to find a way around the deadlock, according to sources close to the process.

Formal talks at the 13th meeting of the Intergovernmental Negotiating Body (INB) will resume on Tuesday, according to the World Health Organization (WHO).

“INB13 ends on Tuesday with several pieces to resolve. Several members states  have to clarify various positions with the capitals,” a WHO spokesperson told Health Policy Watch.

The negotiations were due to finish on Friday in time for a draft agreement to be prepared for the World Health Assembly (WHA) next month.

The standoff involves whether technology transfer for producing pandemic-related health products shall be both “voluntary” and on “mutually agreed terms”, according to a footnote in Article 11. 

Thirty legal experts argue in a letter sent to negotiators earlier in the week that the use of “voluntary” will undermine countries’ “sovereign right … to implement legislation within their jurisdiction, and equity in pandemic preparedness and response”.

Several countries have laws allowing non-voluntary measures under exceptional circumstances, including the United States Defense Production Act, and Germany’s Act on the Protection of the Population in Case of an Epidemic Situation of National Significance, passed in 2020 in response to the COVID-19 pandemic.

Insisting solely on voluntary measures will “defeat two principles that guide the Pandemic Agreement’s core objective: respect for the sovereign right of States to implement legislation within their jurisdiction, and equity in pandemic preparedness and response”, the experts note.

‘Voluntary’ – or bust?

However, the pharmaceutical industry has said that dropping “voluntary” is a no-no for them, and European nations that host large pharma companies – most notably Germany and Switzerland – have also dug in their heels on this issue.

The European pharmaceutical industry is facing tariff threats from the United States, and earlier this week, the European Federation of Pharmaceutical Industries and Associations (EFPIA) issued a “stark warning” to European Commission President Ursula von der Leyen that, “unless Europe delivers rapid, radical policy change then pharmaceutical research, development and manufacturing is increasingly likely to be directed towards the US”.

Various proposals have been made to accommodate differing positions. Knowledge Ecology International’s Jamie Love told negotiators on Friday morning that it “would make sense to say [Article 11] is without prejudice”, and does not affect the measures that parties may take in accordance with their own laws.

This is in line with what the INB Bureau proposed on Wednesday, namely that the footnote should read: “For the purposes of this Agreement, transfer of technology refers to an agreed process where technology is transferred on mutually agreed terms. This understanding is without prejudice to and does not affect the measures that Parties may take in accordance with their domestic or national laws and regulations, and compliant with their international obligations”.

However, there are other proposals on the table too, according to Third World Network. These involve:

• Modifying the footnote;
• Removing the footnote and using language from the Framework Convention on Tobacco Control (FCTC), Article 22 “as mutually agreed” after each mention of “transfer of technology” in the text;
• Removing the footnote and using the whole FCTC text from Article 22, with slight adjustment for clarity;
• Removing both the footnote and “as mutually agreed”, and using “consensual” and “reporting procedure”:
• Removing the footnote and rephrasing.

Hopefully, negotiators will find a way to agree on one of these options to enable an agreement by Tuesday.

Racing against time

WHO Deputy Director-General Dr Mike Ryan said that the WHO Secretariat “will do whatever it takes to get them more time”.

“The reality is we’re against that time now if you consider that many member states will have to consult their capitals … before the [WHA] meeting in May,” Ryan told the WHO’s global media briefing on Thursday.

“The Assembly is, classically, a meeting of ministers of health and it often involves heads of state… so the people who will make the agreement at the Assembly are at a higher level. So the sooner negotiations can be concluded, the sooner we can prepare that process.” 

While negotiators “don’t have to have every ‘i’ dotted, they don’t have to have every comma agreed”, the text still needs to be subjected ao a legal scope, Ryan explained. 

“The member states will have to make a judgement themselves of how close they are. The negotiators downstairs [in the WHO headquarters in Geneva] are not WHO negotiators. The negotiators are … 192 sovereign states [excluding the US, which pulled out of the talks], and they will decide what happens next, and we will facilitate whatever they wish. 

“We will obviously offer them advice around timelines and what’s realistic and what can be done in advance of the Assembly. I’m always someone who’s very reticent to admit that you won’t make it and then add on more time, because in my world, work fills time, and if you make more time, the work will just stretch out to fill that time.”

However, he acknowledged that “there are real issues”, with single words having political, ideological and legal meanings. 

“The great thing we should celebrate is that there are currently over 190 member states in a basement, trying to find a way to work together, trying to find language that will protect eight and a half billion people from the next pandemic. 

“We should be celebrating the very fact that they’re in the room, given everything else that’s happening around the world, geopolitically and geo-economically.”

Image Credits: WHO.