TWN Info Service on Health Issues (Apr25/08)
15 April 2025
Third World Network

WHO: EU’s push to dilute technology transfer provisions delays conclusion of pandemic instrument negotiations

New Delhi, 15 April (K M Gopakumar) – The European Union’s push to dilute the technology transfer provisions has delayed the conclusion of negotiations of the pandemic instrument at the World Health Organization.

The last day of the resumed 13^th session of the Intergovernmental Negotiating Body (INB) lasted nearly 24 hours and ended morning of 12 April without a consensus on Article 11 that deals with technology transfer.

The resumed session of INB13 took place on 7-11 of April at the WHO Headquarters in Geneva in a hybrid mode.

After an initial discussion on 10 April the INB took up Article 11 only in the early hours of 12 April for further negotiation. However, there were two earlier rounds of informal discussion on Article 11 on 10 and 11 April based on the INB Bureau’s 5 options to replace the footnote on technology transfer which effectively defined the technology transfer. (See: “INB Bureau proposes alternative text to replace the definition of technology transfer”.)

The INB could not reach consensus on the following paragraphs of Article 11. (Text highlighted in green indicates initial agreement, while yellow indicates “convergence” i.e. text that is near to agreement.)

Paragraph 1

"Each Party shall, in order to enable the sustainable and geographically diversified production of pandemic-related health products for the attainment of the objective of this Agreement, as it deems appropriate:

(a)                    Promote and otherwise facilitate or incentivize, transfer of technology and relevant knowledge, skills, technical expertise, and to cooperate on any other related know-how, as mutually agreed, for production of pandemic-related health products, in particular for the benefit of developing countries, through measures which may include, inter alia, licensing, capacity building, relationship facilitating, incentives or conditions linked to research and development, procurement or other funding and regulatory policy measures;

NOTE: Pending confirmation from delegations

Footnote: As mutually agreed

For the purposes of this agreement, "as mutually agreed" means willingly undertaken and on mutually agreed terms, without prejudice to the rights and obligations of the Parties under other international agreements."

Though this paragraph still contains the footnote it now defines the phrase “as mutually agreed” instead of the original “transfer of technology”. This proposed definition of “as mutually agreed” makes the technology transfer commitment under Article 11 an action voluntarily undertaken and on mutually agreed terms. Thus, the word “willingly” makes the technology transfer activities fully at the will of the technology providing party and does not create any legal obligation. It creates an optics of legal obligation that is essentially empty.

Paragraph 1 (b)

"Promote licensing / make available licences on a non-exclusive, transparent and broad geographic basis and for the benefit of developing countries of pandemic-related health technologies, including government-owned, where feasible, in accordance with national or domestic, and international law and encourage private rights holders to do the same; …"

Here the EU wants to dilute the commitment of undertaking licensing of government-owned technology by using the words “promote licensing” instead of “making available licensing”.

It was learnt that that Russia continues to object to the words “government-owned”.

The EU’s proposal to use the word “where feasible” further dilutes the commitments under this paragraph. Since the Chapeau of Paragraph 1 already qualifies the legal obligation with the word “appropriate” this additional qualification would render Paragraph 1 (b) ineffective.

Paragraph 3

"The Parties shall cooperate, where deemed / as appropriate, to implement with regard to time-bound measures where agreed within the framework of relevant international and regional organizations to which they are a party, to accelerate or scale up the manufacturing of pandemic-related health products, to the extent necessary to increase the availability, accessibility and affordability of pandemic-related health products during pandemic emergencies."

Finalisation of the above Paragraph 3 is subject to further consultation with Member States.

Apart from this paragraph Member States have to confirm their consensus on Paragraph 4 on reaffirming the right to use flexibilities in the Trade-related Aspects of Intellectual Property Rights (TRIPS) Agreement administered by the World Trade Organization. Paragraph 4 states:

"The Parties that are World Trade Organization (WTO) members reaffirm that they have the right to use, to the full, the TRIPS Agreement and the Doha Declaration on the TRIPS Agreement and Public Health of 2001, which provide flexibility to protect public health including in future pandemics. The Parties shall respect the use of these flexibilities that is consistent with the TRIPS Agreement."

Though Paragraphs 1 (e) and 5 are ‘greened’ indicating initial agreement, they are subject to the consensus to be reached on the proposed definition, or a consensus on the meaning of the phrase “as mutually agreed”.

Paragraph 1 (e)

"Promote the transfer of relevant technology and relevant knowledge, skills and technical expertise for pandemic-related health products by private rights holders, to established regional or global technology transfer hubs, coordinated by WHO, or other mechanisms or networks; …"

Paragraph 5

"The Parties shall, in collaboration with WHO, identify, assess and, as appropriate, strengthen and/or develop mechanisms and initiatives that promote and facilitate the transfer of technology with a view to increasing access to pandemic-related health products, particularly in developing countries, including through the pooling of intellectual property, relevant knowledge, skills and technical expertise and data and transparent, non-exclusive licensing. Such mechanisms may, where appropriate, be coordinated by the WHO, in collaboration with other relevant mechanisms and organizations, enabling increased participation of manufacturers from developing countries."

Similarly, though greened, final confirmation of Paragraph 5 of Article 9 also depends on the finalization of the footnote or a solution on the shared understanding on the phrase “as mutually agreed”. Paragraph 5 of Article 9 reads:

"Each Party shall develop and implement national and/ or regional policies, adapted to its domestic circumstances, regarding the inclusion of provisions in publicly funded research and development grants, contracts, and other similar funding arrangements, particularly with private entities and public-private partnerships, for the development of pandemic-related health products, that promote timely and equitable access to such products, particularly for developing countries, during public health emergencies of international concern including pandemic emergencies, and regarding the publication of such provisions. Such provisions may include: (i) licensing and/or sublicensing, particularly to manufacturers of developing countries and for the benefit of developing countries, preferably on a non-exclusive basis; (ii) affordable pricing policies; (iii) technology transfer; (iv) publication of relevant information on clinical trial protocols and relevant research results; and (v) adherence to product allocation frameworks adopted by WHO.

[NOTE: Pending final discussion of Article 11 regarding licensing and tech transfer]”.

Member States are meeting today (15 April) in another round of the resumed INB13.