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In April of this year, World Health Organization member states concluded a landmark pandemic preparedness agreement after laborious, marathon negotiations spanning the past three years. This is one of the shortest time periods during which a global treaty has been agreed between member states. The consensus text was signed by member states at the World Health Assembly in May.
The need for a new pandemic agreement has arisen due to demand for inequities observed in the production and distribution of Covid-19 vaccines, treatments and personal protection equipment. After initial hesitation over whether a new pandemic agreement or an amendment to existing international health regulations was the best route, deliberations on developing a pandemic agreement continued in 2021. The talks were held under the auspices of the International Negotiations Committee.
With the publication of the zero draft in February 2023, the focus shifted from a general discussion to a narrow and serious consideration of the text by member states. Although key points were brought up between the final agreement in February 2023 and April 2025, the issue of intellectual property rights and technology transfer remained at the center of the agreement’s new considerations. Inequalities observed during the COVID-19 pandemic resulted in calls for a Trade-Related Intellectual Property Rights (TRIPs) waiver, which waived the application of intellectual property rights to COVID-related medical products.
Admirable progress was made on the TRIPS waiver, so the twin issues of intellectual property rights and technology transfer took center stage in the negotiations for the Torts Treaty. Not surprisingly, despite the enthusiastic and unifying mood at the start of the treaty negotiations, serious disagreements over the text arose after the publication of the draft. In particular, Article 11 of the draft, which covers the complex and nutty issues of technology transfer and the IPPR, became the most contested area. The European Union and the pharmaceutical industry, based on the experience of the Covid-19 pandemic, pushed the implementation of the technology entirely voluntarily, while countries in the Global South opposed it. At one point, it looked like negotiators would be foundering on this hotly contested point. In the end, a compromise was found on wording that conceptualized the process of technology transfer on voluntary and agreed terms.
An important achievement of this agreement is the incorporation of a health approach into the epidemic agreement, which identifies the interconnectedness of animals and the environment and collaborative monitoring.
The margin of Article 11 overcomes this obstacle in the following sentence, “For the purposes of this Agreement,” as mutually agreed, it means without prejudice to the rights and obligations of the Parties under other international agreements, by mutual consent. This has been interpreted to mean that if there is no desire to transfer and share technology during a pandemic, the government can use existing provisions in other international agreements to force technology transfer. Trade-related intellectual property rights agreements already have mechanisms in place to invoke compulsory licensing in times of public health emergencies. However, this clause has rarely been used due to fear of legal challenges from Western countries and a powerful bloc of big pharma.
The final signed text contains 37 articles. Despite the large consensus on the above-mentioned clear points, the issues of access to drugs and benefit sharing have been kicked down the road to be discussed at a later date. So is the key issue of financing pandemic preparedness. The deal, as it stands, is far from perfect. According to some commentators, many of the provisions are couched in non-committal and non-binding language and are burdened with appropriate wording that does not clarify States’ obligations. Despite these weaknesses, the Pandemic Agreement has been hailed as a landmark that creates mechanisms and principles for joint international cooperation in the event of the next pandemic.
An important achievement of this agreement is the incorporation of a health approach into the epidemic agreement, which identifies the interconnectedness of animals and the environment and collaborative monitoring. Now, it is up to governments to start implementing it. The agreement, as it stands today, should be made to work for all parties by engaging in further negotiations on access to drugs and benefit-sharing clauses and pandemic relief issues. The pharmaceutical industry should begin working constructively with key bodies such as the WHO World Health Technology Transfer Pool and the Medicines Patent Pool to ensure access to pandemic-relevant products when the next pandemic knocks on our doors.
The author is a public health consultant and author of Patient Pakistan: Reforming and Fixing Health Care for All in the 21st Century. He can be reached at drarifazad@gmail.com on Twitter: @arifazad
