On the eve of the final round of pandemic agreement negotiations ahead of the World Health Assembly (WHA), 30 legal experts have cautioned against using “voluntary” to describe technology transfer.

The latest draft of the pandemic agreement (text agreed by end of 21 February) states that technology transfer for the production of pandemic-related health products shall be on “mutually agreed terms” in a yet-to-be-agreed  footnote in Article 11. 

This inherently implies that it is voluntary, the experts state in a letter sent to the co-chairs of the World Health Organization (WHO) Intergovernmental Negotiating Body (INB) on Wednesday.

But if the agreement also describes tech transfer as “voluntary”, this will undermine member states’ “sovereign right … to implement legislation within their jurisdiction, and equity in pandemic preparedness and response”, according to the experts, who hail mostly from law departments of global universities.

“By insisting on manufacturers only coming to the negotiating table voluntarily, States Parties are limiting their options for facilitating or otherwise incentivising technology transfer, and for taking non-voluntary measures even where their domestic laws do or would provide for them,” they note.

Domestic non-voluntary measures

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

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”, they note.

“The challenge during the COVID-19 pandemic was that manufacturers had little incentive to do transfer technology. By enshrining technology transfer as ‘voluntary,’ the pandemic agreement would codify an approach that has failed,” they note.

Article 11 is one of the few clauses where substantial disagreement exists, with Germany in particularly digging its heels in about the use of “voluntary tech transfer”.

“Among the European Union countries, it seems that Germany is taking a hard line and continues to insist on adding the term ‘voluntary’ in addition to ‘mutually agreed terms and conditions’,” according to Ellen ‘t Hoen, one of the signatories. 

“This raises eyebrows because Germany recognised, early in the Covid-19 pandemic, that it needed to amend its legislation to enable effective use of compulsory measures,” added ‘t Hoen, who heads Medicines Law & Policy based in Europe.

Another signatory, Nina Schwalbe from the O’Neill Institute for National & Global Health Law at Georgetown University in the US, notes that United Nations agreements on global health challenges “define tech transfer as occurring on mutually agreed terms—without specifying that it must be voluntary”.

‘The bottom line is that adding ‘voluntary’ is unnecessary and could weaken governments’ ability to act in future pandemics. Keeping the language as is ensures flexibility while upholding sovereign rights and equity in pandemic response,” says Schwalbe.

The International Federation of Pharmaceutical Manufacturers and Associations (IFPMA) has stated several times to the INB that “respect of intellectual property in pandemic times, support for tech transfer on voluntary and mutually agreed terms, the strengthening of regulatory agility and harmonization, and the removal of trade restrictions” are key to “to harness and leverage industry’s expertise”.

Article 12 on Pathogen Access and Benefit-Sharing System (PABS) is the other key area lacking in agreement. This article covers one of the most substantial parts of the agreement: that each manufacturer that is part of the PABS system will make 20% of their pandemic-related vaccines, therapeutics and diagnostics available to the WHO, with at least 10% as a donation.

‘Get it done’

The INB convenes from 7-11 April – next Monday to Friday – for the last time before the May WHA.  There is widespread acknowledgement that momentum and political will is likely to trickle rapidly away should negotiators fail to conclude an agreement to present to the Assembly.

The Pandemic Action Network and allies urged negotiators to “get it done” in a statement on Tuesday.

“New and resurging infectious diseases with pandemic potential threaten our collective health as our world becomes more fractured,” they note

“As currently drafted, the pandemic agreement secures important gains, including on research and development, equitable access to pandemic countermeasures, and a One Health approach to pandemic threats.

“While not all policy goals have been achieved, this potentially historic agreement lays essential groundwork for equitable, collective preparedness and response now and can be strengthened through additional protocols in the future. We urge Member States to stay laser focused on the end-goal, and find room to give-and-take to reach agreement.”