No Pandemic Treaty without us - In Depth Analysis

Our efforts to give visibility to care workers have had an impact. The text of the WHO INB Bureau refers to “health and care workforce” consistently throughout the text. The agreement has a specific article on health and care workforce (article 7), as we had demanded.  . Some provisions in Article 7 respond to the evidence that we have highlighted on the hardship health and care workers faced during the pandemic. This article also includes provisions on safety of health and care workforce, including against violence and intimidation during pandemic response. It directs governments to prioritise making pandemic products available for frontline health and care workers and also includes a provision on developing and maintaining a workforce planning system for deployment of workers during a pandemic.

Yet, the section continues to lack provisions on important aspects of labour rights and decent work, including the right to organise. The section also leaves out a core section of the health and care workforce, migrant workers. At no point does the Article address either the need to guarantee safe migration and protection of labour rights of migrants in destination countries, nor does it address the growing concerns of source countries regarding the issue of brain drain. 

It also fails to acknowledge the fundamental role of social dialogue mechanisms and participation of unions and organisations of health and care workers in decision making in long term health and care policy as well as in crisis planning during a pandemic. It is important for the text of the Pandemic treaty to include references to ILO recommendations and conventions, such as the 2017 ILO Tripartite Meeting on Improving Employment and Working Conditions in Health Services specifically recommends that relevant actors engage in social dialogue; the 2016 Report of the Expert Group to the High level Commission on Health Employment and Economics that recommends guaranteeing labour rights of the entire health workforce, ensuring social dialogue mechanisms, and protection of the rights of migrant workers as well as securing the interests of source countries. Additionally, the ILO Convention 149 on Nursing Personnel is the international labour standard that addresses the rights of the nursing workforce and includes standards on secure employment and decent work. 

It is important to highlight the absence of these issues in the text despite suggestions from countries that speak directly to these measures. We have evidence that the delegation from Argentina suggested positive language regarding the need for adequately remunerated workers with decent working conditions to make health for all a reality. However, this is not reflected in the text of the WHO INB Bureau. References to the needs of the migrant health and care workforce has not been included in the WHO INB Bureau text, although countries such as the Philippines and Pakistan have suggested the inclusion of these . Finally, the issue of brain drain due to sustained recruitment practices has been raised by countries such as Nigeria, but are not included in the bureau’s text.

We need to build on our gains in this area, speak to countries that are emerging as allies, and work together so that we can ensure that issues that have been raised find a place in the treaty, and keep adding our issues up to the last one.

For this treaty to truly address better health outcomes in the event of a future pandemic, it should include:

• Labour and union rights for health and care workers as key elements of pandemic prevention, preparedness and response;

• The requirement of the application of the precautionary principle in policies affecting health and care workers' exposure to risk;

• Provisions to ensure meaningful participation of unions and organisations of health and care workers in decision making in long term health and care policy as well as in crisis planning during a pandemic;

• Measures to ensure decent work for health and care workers, with the explicit inclusion of improved working conditions, adequate health and care worker to patient ratios;

• Provisions to guarantee safe and secure employment to migrant workers in destination countries including protection of their labour rights;

• Provisions to ensure protection of health systems in source countries to ensure that sending nations do not face health workforce shortages;

During the Covid-19 Pandemic, PSI joined other organisations in pointing out to the central role of public funding for innovation, research, and production of health countermeasures, such as vaccines, while these vaccines were effectively privatised through patents held by a few pharmaceutical companies. 

The zero draft’s text had a strong provision to protect the transparency of public funding to produce pandemic-related products. Article 9.3(b) provided the obligation for manufacturers that receive such funding to disclose prices and contractual terms for public procurement in times of pandemics. This article has been removed from the WHO INB Bureau’s text released on 2 June. This is a strong setback.

This article is crucial, since it was the only one to create obligations for  manufacturers. USA, Saudi Arabia, Russia, Japan and Canada have worked to remove it from the future instrument and it was indeed removed from the Bureau's text. At the same time, Ethiopia and  a group of 44 African countries (the Africa Group) have sought to go further, by trying to make the disclosure of prices and contractual terms compulsory to all manufacturers and not only the recipients of public funding. But those proposals are not included  in the text.

It is important to note that an article that creates requirements for transparency in financial dealings that result from public funding has been strengthened. Based on a proposal by a group of 44 African countries (the Africa Group), this article now specifies the steps that governments should take to promote sharing of knowledge created through the provision of public funding (Article 9.2(b)). While this is welcome, it does not provide any obligation on governments or on the recipients of public funding. Mexico made a proposal to promote transparency and equitable prices, when there is public funding, but it has not been entirely incorporated  in the WHO INB Bureau’s text.

This is a huge loss as it means that the future instrument would lack mechanisms to effectively assign responsibilities to manufacturers. If governments fail to include compulsory mechanisms that pin down manufacturers, they would have learnt nothing from the COVID-19 pandemic experience.

We need to reach out to our governments to urge them to reincorporate Article 9.3(b) and further strengthen Article 9.2(b).

The international campaign that many of you joined actively for more equitable access to Covid-19 vaccines through a suspension of pharmaceutical companies’ monopoly over production (the TRIPS Waiver campaign) at the World Trade Organisation has created the conditions for many of those concerns to be reflected in the initial drafts of the pandemic treaty.

PSI is advocating for a legally binding commitment to time-bound waivers of intellectual property rights (IPR) on pandemic response products, as well as the creation of a permanent mechanism that would automatically trigger this suspension when a Public Health Emergency of International Concern (PHEIC) is declared. Such a mechanism would enable stepping up production of the needed health products, while avoiding the long negotiations we witnessed in the WTO during the Covid-19 pandemic.

The February 2023 zero draft referred to (in the then article 7) a time-bound waiver of intellectual property rights to accelerate and scale-up manufacturing of pandemic products, which was an important gain. This article faced a strong push back by the pharmaceutical industry and was reformulated in the WHO INB Bureau’s text (now article 11). 

The negotiations are marked by an intense debate, regarding the nature of the provisions: whether there will be voluntary or compulsory for manufacturers, pharmaceutical companies or governments to follow the proposed measures. On one hand, countries such as Argentina, Eswatini, Chile and Costa Rica are pushing for stronger provisions that would create obligations to parties. On the other hand, countries such as Canada, the USA, and Japan seek to weaken the provisions by making them voluntary in nature.

The WHO INB Bureau’s text has two options to Article 11. Option A is similar to the Zero Draft Zero, except that while the Zero Draft created a binding commitment to waiver of intellectual property rules during pandemics - which means that parties would lose their ability to legally challenge other parties when they take action on such a suspension. The bureau text puts the adoption of a waiver as an intention of the parties without commitment from other parties to respect it.

The new text proposes a “pooling mechanism” for sharing knowledge, data and intellectual property, on the lines of Patent Pools. This is limited as it is of a voluntary nature, without any obligation on governments or manufacturers. Medicines patent pools, although sold as a good model, have not addressed access inequalities, especially in MIC, and have been heavily criticised as being used by pharmaceutical companies to segment markets. They cannot be taken as an alternative to promoting mechanisms for the open access to knowledge.

It is important to note that the insertion of the phrase "on mutually agreed terms" reduces the state's ability to put in place unilateral policies, such as licences for governmental use and/or compulsory licences, and limitates the range of governments’ intervention to those that private actors would voluntarily agree to. The Covid-19 pandemic has shown us that this is insufficient.

One of the options of text proposed in the WHO INB Bureau text is limited to “urging” manufacturers to take measures beyond those we saw during the covid-19 pandemic (non-exclusive, royalty-free licences), yet only as voluntary action (Article 11.B.3(b)). This is grossly inadequate. 

However, it is important to note that an optional paragraph provides for national-level waivers of intellectual property obligations and limits the ability of other countries to legally challenge these initiatives (11.B.5(e)). This is an important proposal that should be maintained and strengthened.

We need to urge our governments to bring back the original language for a binding commitment to time-bound waiver of intellectual property rights, and add that it should be automatically triggered in case of a PHEIC, as well as underline the importance of national-level waivers. 

Reference to “mutually agreed terms” are harmful in this section and should be deleted. Introduction of patent pool mechanisms or voluntary non-exclusive, royalty-free licences are red herrings that do not bring real advantages.

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