[GUEST ESSAY] Principles to Guide the Pathogen Access-and-Benefit Sharing System [PABS] in a Pandemic Agreement; Update: Proposal to Buy More Time to Operationalize PABS by May 2026

Newsletter Edition #79 [Treaty Talks]

Hi,

In order to bridge the schism between countries on key matters at stake in the negotiations towards a new Pandemic Agreement, a range of stakeholders are working behind-the-scenes to help push towards a logical conclusion in this three year old process.

We have noted before, how many negotiators see the Pathogen Access-and-Benefit Sharing System as a litmus test for equity in the overall reforms of Pandemic Prevention, Preparedness and Response. A test that WHO member states are at risk of failing, pending a minimum threshold for consensus.

In today’s edition, we bring you another guest essay from scholars who have been engaged on this topic. Authors Lawrence Gostin et al, have distilled four key principles that they argue is the bedrock for a viable PABS mechanism. (See their previous piece A Robust PABS System: Make or Break for the Pandemic Accord )

We also bring you a quick update on a new proposal that seeks to buy more time to operationalize PABS. We briefly discuss what this means for the overall negotiations.

Starting today we will be publishing a number of updates every week in the run up to the World Health Assembly beginning May 27, 2024. Thank you for reading and for your understanding, as we try to keep pace with swiftly changing dynamics around these discussions.

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In case you missed it, we published reader insights from our recent engagement with our audience. This is a list of action points not only for us, but also for our potential funders who wish to service this community! (I am in Perugia this week for the International Journalism Festival, drumming up support for GHF.)

More later.

Best,

Priti

Feel free to write to us: patnaik.reporting@gmail.com. Follow us on X: @filesgeneva

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Illustration Credit: Amy Clarke, Chembe Collaborative

I. GUEST ESSAY

Four Principles to Guide a Pathogen Access-and-Benefit Sharing System for Pandemic Preparedness and Response

By Lawrence O. Gostin, Sam F. Halabi & Jayashree Watal

Gostin is Distinguished University Professor, Georgetown University and Director, O’Neill Institute for National and Global Health Law, Washington, D.C., USA. Halabi is the director of the Center for Transformational Health Law and a professor at Georgetown University’s School of Health. Watal is Visiting Professor, National Law University Delhi, India.

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As the 77th World Health Assembly approaches, global health diplomats are scrambling to finalize a comprehensive agreement on pandemic preparedness, prevention, response, and recovery that covers the broadest range of factors: national resilience and surveillance; protection of the vulnerable; technology transfer and local manufacturing; and management of supply chains, among others.

One of the most critical areas for agreement, and its ultimate success, is the structure and function of a pathogen access-and-benefit sharing system (PABS) through which countries will provide biological samples and associated data, including genetic sequence data, to a centralized system. Those developing products from the access to such biological materials and associated data will promise to share resulting benefits, which must be meaningful.

Such a mechanism is central to a world prepared for the next pandemic, yet, the actual details of PABS have become yet another forum for Global North versus Global South interests and disagreements to play out.

In the modern era, this divergence of interests is marked by the Convention on Biological Diversity which codified the already well-established legal principle that sovereign nations hold title to the resources within their territories and spelled it out in the context of biological resources.

The CBD became the legal anchor for Indonesia to claim that the WHO-administered system that made use of its influenza samples for purposes of global pandemic preparedness, also served to enrich the companies that produced medicines and vaccines, which were unaffordable and unallocated to Indonesia’s large population.

The resulting Pandemic Influenza Preparedness Framework was constructed to address this juxtaposition of global public health preparedness, and the realities of wealth exploitation and distribution at stake with animal and human pathogens.

After the PIP Framework was adopted in 2011, the CBD Conference of the Parties finalized the terms of the Nagoya Protocol on Access to Genetic Resources and the Fair and Equitable Sharing of Benefits Arising from their Utilization, creating a more definite instrument to enforce benefit-sharing under the burgeoning transactions attributed to ABS.

National and regional approaches to implementation of the Nagoya Protocol followed, with the role of genetic sequence data ascending as a new point of inquiry and concern. Some governments interpreted genetic sequence data as falling within the treaty’s scope, and adopting national laws codifying such, while others determined that information per se was not covered. A fresh set of access-and-benefit disagreements had been launched.

It is not possible to fully reconcile these decades of disagreement in the context of PABS within the current timelines to conclude these negotiations. Indeed, the nature of the pathogens and associated data magnifies this issue in global politics as recent episodes and epidemiological modeling suggest that the next pandemic pathogen is likely to emerge in the Global South, rather than the Global North.

All this could mean that states parties set out broad principles for PABS, but set a future date certain, say within 12-18 months, to develop a full PABS mechanism. Still, getting that mechanism fully formed and adopted at the World Health Assembly in May would be the optimal outcome.

We do believe strongly that a well-designed Pathogen Access and Benefits Sharing (PABS) system can be a bridge between the Global North and South. And it must be if the world is to get to the finish line on a Pandemic Agreement.

As the name “Access and Benefit Sharing” implies, “access” to scientific information is a win-win because everyone – governments, their citizens and residents, and their industries – benefit from rapid sharing of scientific information to facilitate research and development of lifesaving medical countermeasures (MCMs).

“Benefit sharing” is also in the world’s collective interests, not simply because equity is a universal value (which it is), but also because equitable access to diagnostics, vaccines, and therapeutics for populations in need helps contain outbreaks and limit new variants, protecting everyone.

For those participating in, or following the negotiations, it is well understood that agreement on a PABS system could make all the difference between successful adoption of a WHO Pandemic Agreement at the World Health Assembly in May and the collapse of talks after more than two years of intense diplomatic discussions.  Failure in the negotiations would be devastating for global public health after all the suffering, lives lost, and economic destruction of the COVID-19 pandemic.

To advance vital negotiations on a Pandemic Agreement now at a critical stage in Geneva, we advance four principles for a PABS system that can serve as a bridge to health security and justice for everyone—North and South. The success of the Geneva negotiations will require compromise as well as a common commitment to advance science, security, and equity. We believe it can be done.

Image Credit: Photo by Ludvig Hedenborg, Pexels