Pathogens and Equity in the Pandemic Treaty - Key Takeaways for Negotiators

Pathogens are essential ingredients to monitor the spread of disease, and for developing and producing the vaccines we use to fight infectious disease. Under international law, pathogens are not a resource freely available for use for the greater good. Instead, countries have sovereign rights over the pathogens isolated within their territories, and access can only be provided with the prior informed consent of the country of origin, subject to mutually agreed terms. Under this international system, access to pathogens should be accompanied by the sharing of benefits such as access to medical countermeasures. Such a system has been presented as a tool to counter global inequality in a pandemic. In response to the widespread inequity witnessed during the COVID-19 pandemic, Member States of the World Health Organisation (WHO) are currently negotiating a new international legal instrument, intended to prevent pandemics and mitigate associated inequalities – the Pandemic Accord or the Pandemic Treaty. Negotiations on this Treaty launched in March 2022 and are set to conclude by May 2024; a remarkably short time frame in international law terms. The new instrument is intended to be grounded in equity, with equity positioned as both an objective and as an operational output. The Pandemic Treaty is intended to prevent future pandemics, improve pandemic response, mitigate associated inequalities (such as inequitable vaccine access), and improve compliance with international law during infectious disease emergencies. One option currently being explored in the negotiations for a Pandemic Treaty to operationalise equity is the establishment of a complex system of ABS for pathogens of pandemic potential, under the auspices of the WHO. On 19th July 2023, and with the assistance of funding received from the Royal Society of Edinburgh, project leads Dr Stephanie Switzer (University of Strathclyde) and Dr Mark Eccleston-Turner (King’s College, London), organised an event with the British Institute of International and Comparative Law on pathogen sharing and equity under the Pandemic Treaty, with a particular focus on vaccine inequity during the COVID-19 public health emergency. This event was convened by Anthony Wenton, Research Fellow in Public International Law, British Institute of International and Comparative Law (BIICL), moderated by Dr Stephanie Switzer, with contributions from Professor Gian Luca Burci of the Graduate Institute Geneva, Prof Elisa Morgera, One Ocean Hub, University of Strathclyde, Dr Mark Eccleston-Turner, King’s College London, Dr Michelle Rourke, Griffith University, Australia and Professor John Harrington, University of Cardiff. Harry Upton of King’s College London acted as rapporteur for the event. In the below briefing document, we provide an overview of discussions at the event, accompanied by key reflections, tools, and takeaways for negotiators to the Pandemic Treaty