When you understand clearly what is at stake, it helps you to fight a decisive battle, despite dire warnings about possible disasters in store. That is how the latest round of negotiations at the World Health Organization (WHO) on the Pathogen Access and Benefit Sharing (PABS) agreement panned out in the last week of March as developing countries decided to stick to their guns and refused to accept a diluted text handed to them by the WHO secretariat as the basis for negotiations. Nor did they heed the admonition of WHO director-general Tedros Adhanom Ghebreyesus, who cautioned that a “dangerous temptation to think more time might mean a better outcome”.
Multilateral negotiations are tricky and slow because they involve multiple parties with diverse and conflicting interests. Arriving at an acceptable agreement is difficult in the best of times, not just on account of the complexity of the deliberations but more so from the power imbalance between rich nations and the developing world. Very often the “consensus” arrived at in many of the multilateral fora such as WHO and the World Trade Organization, are usually pushed through under pressure from the secretariat of these organisations, which acts at the behest of developed nations. The dynamics, however, may be changing as the meeting of WHO’s Intergovernmental Working Group (IGWG) on PABS indicated.
The opening session of the sixth IGWG meeting on March 23, when delegates resumed work on the PABS agreement, was striking for many reasons. Since it was an open session, the full gamut of the diplomatic tussle over what should be the basis of negotiation was on view for anyone who cared to watch the webcast. The Africa Group, strongly supported by the Group for Equity, a large bloc of regionally diverse developing nations, put up a remarkable show of unity to make it clear they would not be hustled into accepting the IGWG Bureau’s text. They insisted on the use of the on-screen text approved at the end of the fifth IGWG meeting on February 14, and not the draft text circulated by the Bureau on March 9.
That it came after the director-general’s injunctions is an indication of how determined the Africa Group in particular was to push for a meaningful legally binding PABS pact. More time, he warned, would not enable every detail of the PABS system to be set in stone. In fact, the more IGWG delayed, the more difficult it would get the treaty passed. In his view, the scheduled last round was “the best chance—and probably the only chance—to secure an outcome on PABS…” It is puzzling why Ghebreyesus has been putting pressure on developing countries to conclude their negotiations without looking at the fine text, given his earlier stance about ensuring equity and transparency in the global health system to fight future pandemics.
The PABS annex is the crux of the Pandemic Agreement, approved last year by WHO members to enhance pandemic prevention, preparedness and response in order to address the glaring disparities exposed by the COVID-19 pandemic. PABS is designed to be the critical instrument that will give concrete meaning to the measures for equity and balance envisaged in the Pandemic Agreement. Primarily, this will be done through sharing of pathogens and genetic sequence data by countries who will in return get timely and guaranteed benefits like vaccines, therapies and diagnostics developed from use of pathogen data.
The negotiations are gridlocked because of the fundamental difference between developing nations, who want enforceable equity measures, while rich countries, primarily the EU, argue that access to pathogens should not be governed by rules because it could slow research and undermine open science.
Experts say the claim that registration is incompatible with open science has been disproved by the experience so far. They point to the fact that many widely used repositories routinely require user registration, identity verification, and data-access agreements before access is permitted. This has not slowed down research or undermined open access. On the other hand, anonymous use of pathogen data, which the EU is championing is not tenable and violates one of the foundational articles of the Pandemic Agreement. This is the major sticking point in the IGWG negotiations along with question of national sovereignty over pathogens as recognised by the Convention on Biodiversity and the supplementary Nagoya Protocol which lays down the rules for fair and equitable sharing of benefits arising from the use of genetic resources.
As IGWG co-chair Ambassador Tovar da Silva Nunes of Brazil did his utmost to get the meeting to work on the Bureau draft instead of the agreed on-screen text from the previous meeting, African countries, led by South Africa and Namibia, showed excellent tactical skill in forcing him to capitulate. South Africa’s representative Aquina Thulare said that to bypass the on-screen text was to ignore the collective will of the delegates. Namibia’s Kauna Betty Schroder forced Nunes to retract when she took exception to his query whether Namibia distrusted the process. Ultimately, she won the day by getting him to accept the on-screen text as the working document while keeping the Bureau brief for reference.
Why were the delegates so set against the Bureau brief, which they had authorised at the end of the previous round? The main issue was that it did not include important elements of the on-screen text aimed at ensuring equity and balance. As one delegate after another pointed out, the imbalance and omissions in the brief were glaring. While the obligations on sharing the pathogens, continuously and in a timely manner, were spelt out with precision and clarity, the “language on benefit-sharing was weak, vaguely worded and aspirational”. The message from the Africa Group was clear: it would keep the fight going in IGWG to ensure there was no repeat of the inequity they had experienced during the last pandemic and would therefore insist on a legally sound PABS pact that would ensure strict compliance on benefit sharing through contracts.
The deliberations on PABS will now continue for another round starting at the end of April. If this is viewed as “failure”, the Africa Group and the Group for Equity would prefer to see it as a victory wrought by the remarkable unity of developing nations, a victory not just of their diplomacy but also as a strike for health equity for the vast majority of the global population.