TWN Info Service on Health Issues (May25/01)
8 May 2025
Third World Network

WHO: Developing countries concerned over expert committee proposal to draft PABS text

Geneva, 8 May (TWN) – Developing countries raised concerns on the proposed expert committee to prepare proposals on the Pathogen Access and Benefit Sharing (PABS) Instrument for the consideration of the Intergovernmental Working Group during the negotiation of the draft resolution for the adoption of the WHO Pandemic Agreement.

While developing countries squarely rejected the proposal to establish such an expert committee, citing several reasons, including conflicts of interest, demands from developed countries confirmed the apprehensions of the developing countries regarding conflicts of interest. Developed countries sought to include stakeholders in access and benefit sharing, such as industry experts, in the proposed committee.

The Intergovernmental Negotiating Body (INB) has concluded negotiations on the Pandemic Agreement (PA) and WHO Member States are currently in the process of negotiating a draft resolution for its adoption. The Draft Resolution will be submitted for the consideration of the 78th World Health Assembly to adopt the Agreement. The resolution will also set the modalities for the Intergovernmental Working Group (IGWG) negotiations for an Annex to the PA known as the PABS Instrument, which will operationalise the PABS System (Article 12). Negotiations are ongoing in the WHO Headquarters in Hybrid mode, from 5 to 9 May 2025.

Paragraph 10 of  the  Draft Resolution proposes to “establish an expert committee in accordance with the WHO Regulations for Expert Advisory Panels and Committees, to inform the work of the IGWG regarding the annex to the WHO Pandemic Agreement described in Article [12] of the WHO Pandemic Agreement, and that the expert committee shall prepare proposals for the first meeting of the IGWG, and be available thereafter to provide advice to the IGWG if so requested.”

This paragraph calls for the establishment of an “expert committee” to draft “proposals”, meaning negotiating text proposals for the PABS Instrument for the first meeting of the IGWG. Thereafter, the expert committee is to continue to “provide advice to the IGWG at the request of IGWG.” Following general rule and usual practice, the committee as proposed is to be established by the Director-General by selecting members from the expert advisory panels currently maintained by WHO. The Director-General may also invite other experts as well, following the WHO regulations quoted above.

While several developing countries expressed their doubts regarding the composition of such an expert committee, European countries came up with proposals which opened the door for inclusion of industry representatives into the committee, making the case of conflict of interests obvious. The European Union also wanted the people managing laboratories and databases etc. to be part of this expert committee that would draft text proposals for the IGWG and regularly advise the negotiations.

Many developing countries had the apprehension that the Expert Committee is a proposal in the interests of developed countries to bring in their so-called “independent” and “scientific experts” and to sideline the extensive text proposals submitted already by several developing countries and which have the support of around 75-80 countries.  These concerns seem to be confirmed by the above developed countries’ proposals. 

Developing countries questioned the appropriateness and the added value of establishing an expert committee to prepare negotiating text and to provide advice to the IGWG thereafter. Developing countries of the Eastern Mediterranean Region represented by Kuwait, countries from the Africa Group (such as South Africa, Namibia, Uganda), Bangladesh, Indonesia, India, Malaysia thus called for the deletion of the paragraph. Several other countries including China, Russia, Botswana, Ethiopia, Brazil also expressed their concerns with the paragraph.

Most of these Member States very clearly stated that there are already detailed text proposals, including for provisions of benefit sharing contracts, placed for example by the Africa Group, the Group of Equity and the E.U.  They said that these were developed after consulting relevant experts and there is no need for additional text proposals from so called experts.

In order to speed up negotiations on the PABS Instrument, the IGWG can start working on these existing proposals. These can be put together as a compilation of proposals, or a negotiating draft can be developed based on the Member State proposals. To augment this case, the Africa Group along with Egypt, Sudan and Libya, proposed an additional paragraph to be placed before the existing paragraph 10:

“9bis. Invites all Member States to submit text proposals, including draft Articles, for the development of the Annex to the Pandemic Agreement described in Article 12 thereof by 30 August 2025, with all such proposals be made publicly available;” 

According to a document seen by civil society observers, this proposal was supported by Brazil, Bangladesh, Indonesia, Colombia, Malaysia, China, India and Iran. The Africa Group also said this will allow for submission of new and revised proposals for the consideration of the IGWG.

Many developing country Member States also expressed concerns regarding the composition of the expert committee, the process of identifying experts and whether a balanced representation is possible, not only of all regions, developed and developing countries but also that of views and perspectives. A couple of countries raised questions regarding the regional balancing in the total composition of the Expert Advisory Panels.

According to a recent report of the Director-General to the WHO Executive Board on meetings of expert committees and study groups (January 2025), there are 21 panels and in terms of regional distribution, approximately 14% come from the African Region, 22% from the Region of the Americas, 8% from the South-East Asia Region, 30% from the European Region, 10% from the Eastern Mediterranean Region and 16% from the Western Pacific Region. Countries thus also raised such availability of experts from different regions.

Meanwhile, Brazil asked the Secretariat whether the PIP (Pandemic Influenza Preparedness) Advisory Group can be of help in this regard. Also, several other countries sought explanations from the Secretariat regarding the establishment and composition of the committee. The Secretariat responded by providing three possible models, (i) using internal WHO expertise, (ii) using a mix of internal and external expertise, and (iii) also mandating a PIP Advisory group if Member States so decide.

Some developed countries reportedly insisted on having external expertise in the committee. It is also not clear from the Secretariat's proposal what “internal expertise” means - does it mean Secretariat staff or does it mean the advisory panels maintained by the Director-General and the like.

Norway came up with proposals which according to them are a middle ground. It proposed to explain who these experts are and said instead of “proposals” they can give “inputs”. The nature of these inputs need not necessarily be text proposals but certain technical recommendations etc. This reminded the Member States about the Review Committee that was established in 2022 to examine the Member State text proposals for amendment of the International Health Regulations 2005. Mexico and Colombia supported this proposal, as well as certain developed countries like Switzerland, Australia, Canada, the United Kingdom and Monaco.

According to Norway and these countries, the committee should comprise of expertise from areas including access and benefit sharing systems, pathogen sample and data sharing, research and development for manufacturing of, and regulatory requirements for, pandemic-related health products.

The E.U. delegation said that they want the text proposals to be prepared by the Expert Committee, and advised the Member State representatives to be humble about their knowledge on matters they have been negotiating for the last three years.

France said the delegates in the INB/IGWG room do not collect pathogens, make vaccines, therapeutics and diagnostics (VTDs) or run laboratories, and hence are not in a position to develop text proposals for PABS. France said there is nothing political to be resolved in the PABS Annex, political issues were resolved in Article 12 of the Pandemic Agreement developed by the INB last month. Japan also expressed similar views.

A developing country delegate told TWN, on condition of anonymity that “it is easy for (developed countries) to say everything in PABS is now technical and this can be left to the technical experts, because political issues are settled in Article 12. They have managed to reflect all their demands in Article 12, while most of the proposals from developing countries have been postponed to the Annex negotiations. These issues include critical questions like who should sign PABS contracts and at what time, traceability etc.”

According to another delegate, certain developed countries argued that there were not enough consultations during past INB negotiations. Some other developed countries also said that they have to explain to their ministers that the PABS text is not randomly produced by political negotiations, but after consulting the relevant experts.

Interestingly, Colombia also spoke in favour of the expert committee arguing that in other international fora like Convention on Biological Diversity (CBD), experts are consulted.

However, developing countries clearly stated that INB had several consultations not only with the scientific community, but also with other stakeholders like industries, and civil society organisations. Many even said that stakeholders routinely provided inputs on negotiations on a daily basis at the beginning of the day's negotiation. Developing countries made it clear that they are not against such consultations with stakeholders in the PABS negotiations as well. They further clarified that in fora like the CBD, scientific communities were consulted, but negotiating draft were not drafted by them, referring to recent negotiations for benefit sharing from the use of digital sequence information.

Developing countries also explained that the committee may be misused to create an aura of “expert authority” around certain text proposals because it comes from or are backed by the “so-called scientific and independent” expert committee. But it is clear that a committee with VTD manufacturers, laboratory and database managers cannot be independent because they are the ones who have to sign the agreements, undertake obligations and monitor the use of the resources.

Similarly developing countries argued that just because members of the committee come from different countries or different regions, this need not reflect balance of perspectives and ideas. So, they cautioned that there will be a later tendency to argue the proposals from the committee are a balance of views, while they may not be so.

It was also stated that a committee evaluating text proposals made by the Member States is not respectful of the principle of state sovereignty in international relations.

A developing country delegate told TWN, “The basic foundation of the access and benefit sharing systems is that the provider country is sovereign to determine the access to genetic resources, subject to their national laws. What the developed countries are trying to do is overthrow this basic principle. They don’t want States to determine the access conditions, but their industries and other stakeholders.”

The delegation further explained that it is common knowledge that contracts are entered into at the beginning of the transaction, not at the final stages. When something valuable is shared for a specific purpose, it is also important to ensure that the subject matter is not diverted to other purposes. To ensure this, monitoring and reporting measures may be introduced by the providers. There is nothing technical or peculiar about it. Developed countries simply want to bypass all these requirements and are forcing the developing countries to give access to pathogens and data without commitments to benefit sharing. By claiming all this as technical and complex, their sole aim is to decouple access and benefit sharing.

Scientific community not different from other stakeholders

It is important to note that on the topic of access and benefit sharing issues, scientific experts are no different from other stakeholders. This is because the PABS system will require transparency and accountability from scientific users in the sense that they are also the likely users of the PABS system and may have obligation with respect to access (e.g. signing standard material transfer agreement) as well as benefit sharing (as a user of the PABS system) They have direct interests and stakes in the process and hence are not neutral. This means the expert committee’s advice will be motivated by private as well as commercial interests of the scientific community, rather than the interest in ensuring that the PABS system is consistent with the objectives and principles of the CBD and the Nagoya Protocol as well as that there is transparency and accountability in access and benefit sharing which is supported by a proper governance structure under the authority of parties to the pandemic agreement.

Recently the 7th Session of the Team of Technical and Legal Experts on Access and Benefit-sharing of the Commission on Genetic Resources for Food and Agriculture exposed the situation on how (academic) literature reflects a certain bias in which they tend to identify problems with the implementation of ABS measures, rather than success stories. Paragraph 12 of the Report reads:

“The ABS Expert Team [that reviewed a study commissioned on impact of ABS on genetic resources for food and agriculture] noted a potential imbalance in the study’s consideration of negative vis positive effects of ABS measures. In response, the lead author suggested that this may be due to a certain bias in the literature, which tends to identify problems with the implementation of ABS measures, rather than success stories. Existing literature also tends to ignore the important role of ABS measures in raising awareness of the sovereign rights of states over their genetic resources, of Farmers’ Rights, as recognized by the International Treaty, and of the roles and rights of Indigenous Peoples as custodians of much of the world’s genetic resources…” 

This conflict of interests is addressed in a paper by authors from Leiden University titled “Revealing private interests of non-state actor coalitions in negotiating access and benefit sharing” in the context of the CBD Conference of the Parties decision 15/9 on Digital Sequence Information. They explain how coalitions with predominantly scientific membership cautioned “against bringing benefit sharing from the use of DSI into the scope of the CBD” and how such coalitions “argued that it would go against the spirit of open science.” The paper concludes that “coalitions of predominantly scientific actors pursue their private interests based on their expertise just as fiercely as the coalition of business and industry associations”.

This shows the scientific community is not necessarily neutral when it comes to their rights and obligations, just like any other stakeholder. Consultations with them should follow the same principles of consultations with other stakeholders and the same should be conducted openly and transparently subject to public scrutiny.

The negotiations on the draft resolution will continue till Friday, 9 May.