A Double-Edged Negotiation: Liability & Compensation in the WHO Pandemic Agreement

Newsletter Edition #111 [Treaty Talks]

Hi,

Negotiations on the Pandemic Agreement is replete with difficult decisions that countries have to make taking all factors into consideration with the hope to arriving at a holistic policy response to health emergencies.

One such complex decision matrix is the discussion involving liability and compensation language. It touches a raw nerve not only for right-wing fueled anti-vaccine groups, but also brings into sharp contrast the lop-sided power imbalances between public and private sectors during health emergencies.

Countries are divided on whether western standards of liability should be globalised in an international treaty, and whether this would result in a dream for insurers while not really addressing needs on the ground.

In this edition we do a deep dive on this fairly technical issue. My colleague Vineeth Penmetsa has put together an analysis on the Indian context. Vineeth is a Delhi-based legal researcher with a strong interest in health law and global health policy.

We look at the Indian case as being illustrative for other developing countries, that raises several policy challenges on what governments can do, and should do, while taking into account complexity and scale.

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Thank you for reading. Until later!

Priti

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Illustration Credit: Amy Clarke, Chembe Collaborative

I. GHF ANALYSIS

A Double-Edged Negotiation: Liability & Compensation in the WHO Pandemic Agreement

Priti Patnaik & Vineeth Penmetsa

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The headlines of pharmaceutical companies demanding sovereign assets of countries as collateral against “potential legal claims from adverse vaccine effects” at the height of the pandemic of COVID-19, has been one of the more striking snapshots from the period. Clearly no public official with their backs against the wall, wants to be in such a one-sided negotiation again.

In the ongoing negotiations for a new Pandemic Agreement, countries have struggled to agree on language for liability and compensation.

This is an area which is critical to address, in the backdrop of rising vaccine hesitancy in many parts of the world. The need for assurance and protection in the form of a workable  compensation mechanism for adverse health events that does not unduly burden government budgets, is on top of the minds for policymakers. At the same time, some countries are also keen on accepting liability to incentivize and protect manufacturers during pandemics, particularly for new vaccines. This is a double-edged negotiation, that is proving to be a tight rope to walk on.

India, and many other developing countries in Asia and Africa, are now pushing for balanced text that seeks to avoid creating onerous obligations on a compensation mechanism with potentially significant economic implications for countries. Some developed countries including the U.S. have argued for the need for such a mechanism. But there is deep resistance to accepting, what some see as a globalisation of American liability standards in an international agreement that could be applicable to the rest of the world.

In this story we look at the relevant text currently on the table and also examine the experience on the no-fault compensation mechanism for COVID-19, created by the Gavi-led COVAX Facility, and administered by WHO. We also share perspectives from frontline actors where activists at MSF faced questions on liability in humanitarian settings.

(The following analysis is based on the draft text as on November 8, 2024. These provisions are scheduled to be discussed on November 11, 2024.)

Image Credit: Photo by Jaymantri, Pexels