Blocking a Fair WHO Pandemic Accord Endangers Humanity

In Liu Cixin’s science fiction novel The Dark Forest—part of the popular Three-Body Problem series recently serialized by Netflix—humanity is faced with the prospect of an alien invasion. The extraterrestrials are on their way to conquer Earth but are still light years away; humanity has hundreds of years to prepare for their hostile arrival.

Amid a need to bolster defense spending globally and, crucially, to foster innovation across the entire world, representatives of the global south make a proposal at the United Nations. Developing countries demand a universal waiver of intellectual property protections on inventions relevant to defense to enable them to develop their own technologies and contribute to planetary fortification. In Liu’s story, the global south’s call meets staunch opposition from wealthier states, which veto the proposal. Although set in an imagined future, Liu’s point resonates clearly in our own time.

The most recent parallel is the global vaccine hoarding that occurred during the COVID-19 pandemic.

At the height of the emergency, rich countries bought up and hoarded COVID-19 vaccine supplies, which left many developing countries unable to obtain sufficient vaccines during 2021-22. Even when they arrived, donations of leftover doses from high-income countries were often too close to their expiration dates for developing countries to actually use them.

Global south states sought to build up their own secure vaccine production capacity but were stymied. Critically, vaccine manufacturers, such as Moderna and Pfizer-BioNTech, refused to share IP-protected technology with World Health Organization (WHO) initiatives, such as C-TAP and the mRNA vaccine technology transfer hub, that were attempting to create a network of distributed vaccine production. It is estimated that such hoarding cost more than 1 million lives in developing states.

Remarkably, the global south saw this coming. Even before a single COVID-19 vaccine had been administered, developing countries accurately anticipated that they would be left at the back of the line for supplies. Burned by the experience of HIV/AIDS medicine shortages in the late 1990s and early 2000s, the global south predicted similar inequities occurring during the COVID-19 crisis—and they tried to act to prevent this.

In October 2020, this foresight motivated developing countries, led by South Africa and India at the World Trade Organization (WTO), to propose an international waiver of IP protections—known as a TRIPS waiver—on COVID-19 vaccines, treatments, and other health technologies. Much as in Liu’s story, the global north firmly rejected the proposal, leading to a delayed and watered-down WTO decision in June 2022 that I, and other academic experts, argued was too little, too late.

Crucially, we can observe the same pattern emerging yet again in the current negotiations over the WHO Pandemic Accord. Just like Liu’s vision of humanity preparing for an inevitable alien invasion but unwilling to share technologies globally, the world remains stuck in a doom loop. Another pandemic is foreseeable. A new treaty could provide a way for the international community to learn the lessons of COVID-19 and boost pandemic preparedness. Yet the world is making the same mistakes all over again.

Given the failures of the WTO process, experienced commentators such as Ellen ‘t Hoen anticipated that shifting the debate to WHO could help ensure that similar inequalities do not arise during the next pandemic. Many hoped that WHO, with its overriding focus on global health, would be a more receptive forum to the global south’s equity concerns than the WTO, which prioritizes IP via TRIPS, one of its foundational 1995 agreements.

However, thus far, the negotiations have been hampered by the same issue that blighted the WTO TRIPS waiver process: Rich states are unwilling to agree to any potential pandemic-related limitation of international IP rights or to expand IP flexibilities to include nonvoluntary options such as a mechanism for the compulsory licensing of trade secrets on pharmaceutical manufacturing processes needed for scaling up production of pandemic products.

Broadly speaking, developing countries want terms that would mandate technology transfer of key health technologies, such as vaccines, to the global south. Rich countries decry this suggestion, claiming it could undermine IP rights.

Hence, wealthy nations are balking at the use of progressive language on the compulsory use of IP in Article 11 of the draft accord. Instead, the U.S. government emphasizes supporting voluntary agreements—without acknowledging that the voluntary systems, including COVAX, failed to provide for the needs of citizens in many global south countries during the COVID-19 era.

In these negotiations, several key parties, such as the European Union and the United Kingdom, argue that a WHO treaty cannot deal with IP issues because that would equate to trespassing on rules that the WTO created. This back-and-forth between the WTO and WHO reflects an asymmetric power game that the global south is not well placed to win.

With no movement on IP, developing countries seem less willing to agree on a rare point of leverage, namely, the terms of Article 12, which addresses pathogen access and benefit-sharing. Put simply, developing countries are concerned that if they agree to terms on restriction-free sharing of pathogens with pandemic potential, without reciprocal guarantees of technology-sharing and health product distribution, they will be left at the back of the line again in the next pandemic.

Wealthy countries may be succeeding at reducing this leverage; recent news reports suggest that detailed provisions on pathogen-sharing may be shifted to a separate instrument.

It seems that for rich states, property is sacrosanct; global health is not. Yet, rather than property, it is worth recalling that patents were originally considered to be a form of state-granted privilege. In the 19th century, industrial states viewed IP not as an instrument of free trade but rather as a form of trade protectionism.

This idea of IP as protectionist privilege remains a more accurate description of what global IP law is intended to achieve. Much as in Liu’s novel, the stark reality is that there is no circumstance—not a new pandemic, not even an alien invasion—in which the global north would be willing to give up its protectionist privileges by sharing its technology with the global south.

With the WTO in decline and the WHO multilateral process in trouble, the global south may have to examine alternative options for building up pandemic preparedness. Intriguingly, Netflix’s 3 Body Problem envisages this. Unlike in the book, on TV the U.N. resolution for open technology-sharing is never even proposed.

Instead, a Mexican national who happens to be the chief scientific officer of a cutting-edge nanotech company becomes frustrated by Western corporate-military obstructionism and decides to upload all her London-based employer’s source code and trade secrets to open-source platforms with the aim of assisting developing countries to produce the technology. She even includes a downloadable guide on how to copy the functionality of the technology while avoiding IP infringement.

This fictional feint away from the multilateral forum and toward individual decision-making parallels real-world moves toward open-source biotech. This approach has been pioneered by Peter Hotez and Maria Elena Bottazzi of Baylor University, who created the patent-free COVID-19 vaccine Corbevax. They successfully transferred the vaccine technology openly to producers in Botswana and India. Meanwhile, the WHO mRNA hub at Afrigen in South Africa led by Petro Terblanche is encouraging open south-south collaboration on new vaccine technologies.

If the Pandemic Accord negotiations falter before the World Health Assembly begins on May 27 or they fail to produce a just treaty, efforts such as these will take on even greater importance. An inequitable Pandemic Accord will signal that Liu was right: The global north will continue to hoard technologies even in the face of looming Armageddon, and south-south collaboration on producing health technologies may be the only way forward for enhancing global pandemic preparedness.