No Pandemic Treaty Without Us (December Analysis)

While we welcome the inclusion of an article on the health and care workforce in the previous draft, we are disappointed by the limited progress in the current draft. Safe workers save lives, yet, the current draft lacks substantial provisions that uphold Decent Work for all health and care workers. We are concerned that the current draft fails to secure for all workers their right to freedom of association, to collective bargaining, to social protection and to adequate protective measures. The text fails to recognise the essential role of care workers, of frontline workers, and of migrant workers, and to include measures to protect the health and safety of all workers in the health system.

Securing and Protecting Frontline Workers

Language that prioritised adequate protective equipment for frontline health workers during pandemics in earlier drafts has been deleted. It is imperative for countries to recognise the crucial work done by frontline workers during the pandemic and integrate this into the international accord (in Article 7), towards safeguarding the lives and health of health workers in the event of future health emergencies.

Defining Health and Care Workers

The crucial role played by every single worker in a health system was made evident during the COVID-19 pandemic, beyond the more visible role played by doctors and nurses are many other health workers essential in the response to health emergencies. We therefore recommend  including in Article 1 a broad definition of health and care workforce which incorporates all workers classified as health workers by the International Standard Classification of Occupations (ISCO) used by the WHO. 

Decent Work

Decent work for all health and care workers is a prerequisite to strong healthcare systems that can prevent, prepare and respond better to future pandemics. The protection of labour rights for all health and care workers in turn leads to a skilled and competent workforce as the foundation of the health system. We, therefore, recommend incorporating Decent work into Article 3 as a guiding principle to be followed when developing, planning, and implementing measures related to the preparedness, prevention, and response to a future pandemic. 

Further Article 7 must include provisions that will secure and protect the labour rights of the health and care workforce, including with reference to ILO Conventions 87 and 98. Article 7 must guarantee safe staff-to-patient ratios and other minimum work and employment standards as outlined in the ILO Convention 149 on nursing personnel and the 2017 ILO Tripartite Meeting on Improving Employment and Working Conditions in Health Services.

Occupational Safety and Health and Precautionary Principle

We are concerned by the lack of provisions that would ensure the safety of health and care workers, even though these workers are responsible for the safety of others. In 2022, ILO included a safe and healthy working environment in its framework on fundamental principles and rights at work. We recommend the inclusion of a provision prioritising Occupational Safety and Health measures in Article 3 (guiding principles), including a reference to ILO Convention 155 and Resolution 164.

Furthermore, we have learned that in a context where irrefutable evidence of the means of transmission of infection is not yet established, while we are on the frontlines attending too infected or potentially infected patients, application of the precautionary principle in developing infection prevention and control guidelines is paramount to protect health and care workers. We therefore recommend the inclusion of the precautionary principle in Article 3 as a guiding principle, and substantive language in Article 7 so that the precautionary principle is applied when the cause-and-effect relationships are not fully established scientifically and there may be threats of harm to human health or the environment, particularly in the delivery of health and care services during pandemics.

Further, we urge countries to include in Article 7 language that recognises the need to develop policies to address injury, sequelae or death for health and care workers, as well as their families, during pandemic response.

Protection of Migrant Workers’ Rights and Source Country’s Health Systems 

Despite repeated proposals from countries as well as civil society groups for clauses that specifically address concerns and secure the interests of migrant workers, ethical recruitment rules for health workers and the protection of source country’s health systems, this is still lacking. We recommend including in Article 7 clauses that hold both source and destination countries accountable for protecting both the migrant workers as well as the health systems of sending countries.

In order to truly realise a robust, fair, equitable global innovation system that will generate affordable and timely health technologies, we must understand health technologies (medical countermeasures) as public goods. For this to happen, we need clear rules to protect public investments in research and development (R&D) from being privatised, as well as measures to ensure transparency of costs of R&D and future public contracts signed with private companies. We need policies that guarantee that the health technologies and know-how that originate from public-funded research programs are kept in the public domain.

Public funding was essential in the development of Covid-19 vaccines. In fact, it showed that direct, coordinated and adequate public funding was extremely efficient in generating innovation in the biopharmaceutical field. The world scientific community was able to generate several new vaccines in record time. Yet, patents and other intellectual property rights enabled the concentration of the results of these investments in the hands of a few private companies. 

In order to truly realise a robust, fair, equitable global innovation system that will generate affordable and timely access to health technologies, we must understand health technologies (medical countermeasures) as public goods. Article 9.4 should guarantee that all health products, technologies, know-how, etc, that originate from public-funded research programs are kept in the public domain and cannot be patented. 

• We recommend including language in Article 9.4 to guarantee that manufacturers of technologies that were developed with public funding must provide the resulting medical countermeasures on a no profit/no loss basis upon the announcement of a PHEIC.

• Governments should put in place the obligations listed in Article 9.4 regardless of the extent of public funding. 

The Covid-19 pandemic showed that the world cannot rely on the voluntary agreements the private sector promotes. Opaque contracts between private companies and governments denied the public clear information on costs, effectively holding patients at ransom. Those contracts failed to ensure transparency of price-setting policies, cost of production and other licence agreements aspects. For this to be avoided, we need compulsory measures to ensure transparency of costs of R&D and future public contracts signed with private companies.

In the first text release in February 2023 (Zero draft), we welcomed the inclusion of the compulsory measure for entities that receive public funding for R&D in pandemic countermeasures to disclose prices and contractual terms for public procurement in times of pandemic (Article 9.3.b). However, this measure - the only one that created an obligation for private entities - was removed in the text released in June 2023 (Bureau’s text). We recommend this language to be brought back in article 9.4.

During the most difficult times of the COVID-19 pandemic, we have organised ourselves and demanded action, including by demanding a suspension of intellectual property rights on Covid-19 vaccines and technologies at the World Trade Organisation (WTO). This international campaign, which led to the support of more than 100 countries, brought to the fore the dimension of the issue and shifted the public opinion. 

Yet, long and fruitless negotiations showed that waiting for the crisis to start negotiating is unfeasible - it took more than 18 months of negotiations just to reaffirm what was already known. Maintaining intellectual property privileges during a health crisis, generates artificial scarcity, and high prices, costing hundreds of thousands of lives, especially in the Global South. We cannot live through another health emergency by naturalising monopolies and relying on voluntary solutions. 

We need the Pandemic treaty to include a binding and automatic mechanism to waive intellectual property rights for technologies related to dealing with such an emergency immediately after a PHEIC is declared (in Article 11.3.(a)). In addition, the future instrument should encourage countries to put in place similar mechanisms at the national level and include language promoting legal reforms in this direction.

Further, countries are worried about implementing time-boud waivers unilaterally due to the threats of legal action. This had been addressed in an earlier version of the text that mentioned that parties could challenge these measures. We recommend this text be included back in article 11.3.(a)

Similarly, language creates additional barriers to governments that are willing to put in place compulsory measures without the consent of patent and/or other intellectual property rights holders (i.e. "on mutually agreed terms"), should be removed from article 11. The treaty should enable governments to impose measures on manufacturers.

We recommend that the provisions of this article be made compulsory on the parties, and, therefore, "shall" must be replaced by "must".

Finally, we recommend the inclusion of language towards the review of relevant Free Trade Agreements to remove TRIPS-plus measures, such as data protection, linkage, patent term extension, amongst others.

We welcome the inclusion of a Pathogen Access and Benefit Sharing system (PABS system) as an important learning from the mistakes of the global response to the Covid-19 pandemic. Yet, we are concerned that the concrete elements of this system are left unaddressed and are worried that such a gap can render this important effort meaningless.

One of the more complicated sections of the treaty addresses the need for countries to share  data needed for  scientific research  (which might include sharing the material of pathogens and patient data) and then ensuring that all countries can benefit from the sharing of that data (and making sure that it’s not just the countries or pharma companies that use the data that benefit).

The Pathogen Access and Benefit Sharing system (PABS system, Article 12) has the potential to ensure countries share information and that all people benefit, if it is binding on the laboratories and manufacturers that are too often reluctant to share the benefits of what, in reality, are common scientific breakthroughs. We require monetary and non-monetary obligations on the recipient of pathogen data (Recipients), and for governments to bear the responsibility to ensure that commitments are respected.

We welcome the requirement for Recipients to provide WHO with real-time access to pandemic-related products, though this should be based on a higher minimum (currently set at a minimum of 20%), as well as an appropriate distribution based on a rolling assessment of evolving public health risks and needs.

In addition, the three sub-sections of Article 12.4 (c) should be revised into mandatory benefit-sharing conditions for the Recipients.

• Transfer of technology and know-how should become a mandatory benefit-sharing requirement for the Recipients, rather than as an option to be considered by the Parties, as currently stated in article 12.4(c)(i).

• “No loss/no profit” commitments by Recipients to WHO PABS System should become mandatory under article 12.4(c)(ii)

• Involving scientists from developing countries as part of laboratory collaborations under Article 12.4(c)(iii) should be specified as a mandatory requirement for the Recipient.

We welcome the inclusion of an implied use of the WHO PABS System by manufacturers who produce pandemic-related products without previous agreement, and for governments to bear the responsibility to ensure that concerned manufacturers comply with benefit-sharing requirements (Article 12. 5). 

The intention (Article 12.6) that the supplies to WHO under the PABS system (Article 12) should be used to support the operation of the WHO Global Supply Chain and Logistics Network, including international stockpiling (Article 13) should be expressly stated under both Article 12 and Article 13.

Finally, we are concerned with the delay in operationalising the different components of the WHO PABS System to 31 May 2025 (under paragraph 7) and we urge governments to maintain the same timeline for the PABS System as for the rest of the treaty.

Finally, the Covid -19 pandemic exposed the entrenched weaknesses within our healthcare systems. Yet, the current draft fails to recognize that the best prevention for pandemics are well-funded health systems. Another pillar of strong health systems is social dialogue. Ignoring those features poses a risk to the effectiveness of the rest of the provisions in this new instrument.

On the one hand, pandemic prevention, preparedness and response requires a global financial architecture that ensures that all countries have sufficient resources to inject into building strong and universal public health systems. The fragility in which health systems faced the COVID-19 pandemic was not random. It was the result of a constant dismantling of public health systems, due to austerity measures. There is evidence that International financial institutions’ loan conditionalities result in employment or wage ceilings for the health and care workforce, and weaken health systems. 

We are concerned that the article on Financing (Article 20) is weak. The text should include the principle of solidarity (in article 3), a commitment to an Equitable International Order, as well as provisions towards equity in financing of pandemic prevention, preparedness and response

On the other hand, the ILO has underlined the role of social dialogue in strengthening public services, including public health systems. An European Commission document also highlights that "social dialogue is an essential tool for balanced crisis management and for finding effective mitigation and recovery policies," and that "experience shows that social dialogue contributes to effective crisis management."

We are concerned that measures related to social dialogue during health emergencies and during inter-pandemic times are missing in the text. Article 6 should direct relevant actors to engage in social dialogue and governments to ensure active participation of unions and workers both in the planning and response during an emergency and in non-pandemic times.

• Current text: A/INB/7/3: 30 October 2023: Proposal for negotiating text of the WHO Pandemic Agreement

•  Earlier texts:

  • A/INB/7/x: 16 October 2023: DRAFT Negotiating Text of the WHO convention, agreement or other international instrument on pandemic prevention, preparedness and response (not available online)

  • A/INB/5/6: 2 June 2023: Bureau’s text of the WHO convention, agreement or other international instrument on pandemic prevention, preparedness and response

  • A/INB/4/3: 1 February 2023: Zero draft of the WHO CA+ for the consideration of the Intergovernmental Negotiating Body at its fourth meeting

  • A/INB/3/3: 25 November 2022: Conceptual zero draft for the consideration of the Intergovernmental Negotiating Body at its third meeting

  • A/INB/1/12: 14 June 2022: Draft annotated outline of a WHO convention, agreement or other international instrument on pandemic prevention, preparedness and response

You can find analysis of earlier analysis, and earlier model letters on the links below:

• Analysis of the Bureau’s Text (released 2 June 2023): No Pandemic Treaty without us - In Depth Analysis

• Model letter of the Zero Draft (released 1 Feb 2023): Support Health worker’s Demands for the Pandemic Treaty!

• Analysis and model letter of the Conceptual Draft (released 25 Nov 2022): PSI calls for Inclusion of Decent Work for Health Workers in Pandemic Treaty

• PSI Comments on the WHO Pandemic Treaty Draft Outline (released 14 June 2022)