Opinion: Failing to finalize a pandemic agreement is not an option

After three years of work, the World Health Organization’s Intergovernmental Negotiating Body is meeting this week for its final scheduled round of negotiations on a global pandemic agreement. The stakes couldn’t be higher. The agreement’s obligations, ranging from diversified production of medical countermeasures to disease spillover prevention, are potentially transformative. Its institutional frameworks would allow the agreement to grow in ambition and scope. While negotiators remain divided on obligations for pandemic prevention, technology transfer, and pathogen access and benefit sharing, or PABS, negotiating gaps have narrowed, including over the last few days. Reaching consensus now is critical, ahead of May’s World Health Assembly negotiating deadline. Here, we explain the outstanding issues in the negotiations and suggest solutions to overcome them. 1. Pandemic prevention The agreement introduces obligations designed to reduce the risk of pathogens spilling over from animals to humans. The majority of emerging infectious diseases are zoonotic — transmitted from animals to humans. Countries that sign up to the agreement would commit to developing and implementing multisectoral national pandemic prevention and surveillance plans, including measures to identify and address the drivers of disease at the human-animal-environment interface and multisectoral surveillance of pathogens. In formulating these plans, countries would endeavor to consider the range of environmental, social, and economic factors that increase the risk of pandemics. These, for instance, would capture land-use change, agricultural intensification, wildlife trade, and climate change. The agreement would be the first binding treaty to link these factors to pandemics. Parties to the agreement would also commit to adopting a “One Health” approach — a systems-based framework recognizing the inextricable links between humans, animals, and ecosystems. Pandemic prevention adopting a One Health approach advances equity when coupled with support for implementation and engagement of communities. All people stand to benefit from holistic, integrated, and equitable pandemic prevention. However, negotiators remain divided. The European Union has pushed for more detail, including formerly advocating a separate annex elaborating prevention obligations. Many global south countries want to avoid excessively prescriptive obligations without assurances of sustainable financing — even those with established national One Health plans have faced challenges translating them into action. Thankfully, the initially agreed text provides solutions to overcome these differences. The agreement’s Conference of the Parties, or COP, will have the power to adopt protocols, guidelines, and recommendations on pandemic prevention. With this legal infrastructure, the agreement can adapt to evolving science, integrate recommendations from the One Health quadripartite — a collaboration between four international agencies on One Health initiatives — and develop guidance on addressing the drivers of pandemics while protecting communities’ livelihoods. The COP will also have the authority to adopt measures to support implementation, particularly for developing countries. The agreement’s coordinating financial mechanism can link countries’ implementation needs with financing and is expressly tasked with “expanding capacities for pandemic prevention.” 2. Health technology transfer Wealthy pharmaceutical companies have long refused to share the expertise and technology needed to produce medical countermeasures. These are tools such as vaccines, treatments, and diagnostics used to prevent or respond to health emergencies, including pandemics. All countries stand to benefit from technology transfer which, coupled with stronger research and development capacities and diversified production, can produce countermeasures in volumes needed to curb emergencies while promoting equity. Yet, the very definition of technology transfer is contentious. An increasingly small number of global north countries would prefer technology transfer to occur on a “voluntary” basis. That is unacceptable to many countries that argue that such an understanding would foreclose using nonvoluntary measures even where domestic laws provide for them. It would also codify an approach that has failed, as COVID-19 demonstrated that manufacturers have little incentive to transfer technology even in an emergency. A negotiated compromise could instead define technology transfer for the purposes of the agreement as occurring on fair and most favorable terms, including on concessional and preferential terms, in accordance with mutually agreed terms and conditions and the agreement’s objectives. A recent precedent exists: This approach was adopted in the 2023 BBNJ Agreement on the conservation and sustainable use of marine biodiversity. This understanding would also be without prejudice to other measures countries might take consistent with their domestic laws. Using such a framework, governments would be able to rely on the pandemic agreement to use a range of legal, financial, and political means to facilitate technology transfer. 3. Pathogen access and benefit sharing The final major hurdle is PABS. The PABS system is essential to fulfilling a core promise of the agreement: changing the inequitable system for access to countermeasures. A PABS system that facilitates the timely sharing of pathogen samples and sequences on equal footing with the equitable sharing of benefits that flow from their use would represent a major win for all countries. All parties benefit from scientific exchange, which enables prompt identification and assessment of pathogens and the development of medical countermeasures. Equally important, everyone benefits from the equitable allocation of these lifesaving resources to countries based on public health needs because uncontained outbreaks can spread across borders and oceans at a rapid speed. “The international community is on the cusp of achieving a historic landmark for world health, security, and equity.” --— Negotiators have agreed to a path to developing the PABS System, but agreement on benefit sharing remains elusive. States have not settled on the percentage of production, provisionally 20%, that participating manufacturers would make available to WHO in the event of a pandemic emergency, nor how much of that percentage would be provided for free or at affordable prices — provisionally at least 10% free, the rest at affordable prices. Generally, countries with production capacities largely in the global north have opposed the threshold of 20%, while others largely in the global south see the 20% threshold as an essential — if inadequate — requirement to respond equitably to pandemics. Negotiators have tentatively agreed that the PABS instrument would include “options” for access to medical countermeasures in a public health emergency of international concern, or PHEIC — recent examples of PHEICs include COVID-19, two outbreaks of mpox and the ongoing risk of polio — as well as for responding to public health events that are not yet PHEICs. They’ve also tentatively agreed on additional benefit-sharing options, including non-exclusive licensing and research and development cooperation. Some solutions lie in the initially agreed text. As parties negotiate the PABS instrument, they are expressly not prevented from considering other elements to operationalise PABS equitably. Other solutions have not yet been considered, including: • An additional provision triggering mandatory review of the adequacy of the product allocation percentages, or functioning of the PABS system generally, following a pandemic emergency. • Flexibility, involving an express “consideration” of the production capacities of small-scale manufacturers to meet the product allocation percentage. The pandemic agreement’s failure is not an option The international community is on the cusp of achieving a historic landmark for world health, security, and equity. No country acting alone can fight pandemics — we can only fight them together. Adopting the pandemic agreement in May would represent a victory not only for global health but also for multilateralism itself just when the very idea is at its most fragile in light of the United States’ withdrawal from WHO and cuts to foreign assistance. Let the adoption of a strong pandemic agreement be a potent signal that multilateralism not only works but works exactly where and when we need it most. Conflicts of interest: Prof. Gostin is director of the WHO Collaborating Center on National and Global Health Law and served on the WHO Review Committee for Amendments to the International Health Regulations.