Question NW4198 to the Minister of Health

Reply:

South Africa’s representatives and negotiators working on the World Health Organisation (WHO) convention, agreement or other international instrument on pandemic prevention, preparedness and response (WHO Pandemic Agreement) have participated in the various iterations of the development of a draft negotiation’s text to prepare for the actual negotiations. The latest version of the document under discussion is titled the “Advanced unedited version of the WHO Pandemic Agreement” and is dated the 16 October 2023 (attached as Annexure to this response). The actual negotiations on the WHO Pandemic Agreement have not yet commenced as there is still no agreement on the negotiation’s text and there are divergent views on the language and contents of the WHO Pandemic Agreement by the WHO member states. The disagreements are on how the principle of Equity is to be operationalised throughout the Articles of the Agreement, to ensure that the mistakes made in responding to Covid-19 are not repeated as we move forward. The disagreements are based on developing countries requiring that lessons learnt for pandemic prevention, preparedness and response are provided for and that the provisions of the Agreement do not disadvantage member states from the global south. However, despite these divergent views, the following areas on sovereignty and conduct of pharmaceutical manufacturers are still being deliberated upon in developing a negotiations text for a future WHO Pandemic Agreement:

a) The “Advanced unedited version of the WHO Pandemic Agreement” has several articles addressing issues of protecting sovereignty of member states and on protecting members states against extortion by pharmaceutical manufacturers and other companies.

(i) On protection of sovereignty of state Parties to the WHO Pandemic Agreement, the Preambular section and Article 3 on General Principles and Approaches addresses these concerns.

1. The Preamble reaffirms the principle of sovereignty of States Parties in addressing public health matters.
2. Article 3 affirms that States have, in accordance with the Charter of the United Nations and the general principles of international law, have the sovereign right to legislate and to implement legislation in pursuance of their health policies.

(ii) On protecting members states against extortion by pharmaceutical manufacturers, other companies and member states, Article 10 on “Sustainable Production” and Article 13 on “Global Supply Chain and Logistics” is meant to provide for mechanisms that must be deployed by state parties to prevent extortionary practices by pharmaceutical entities and member states in which they are domiciled. It must however be noted that pharmaceutical companies are not state parties, but that member states in which they are domiciled will be the state parties to the WHO Pandemic Agreement and this is where the challenge of operationalising equity arises as the member states often invoke free market principles and their inability to intervene:

• 1. Article 10 makes provision for state parties to be self-sufficient in providing for health products by ensuring that in the inter-pandemic period, there is achievement of more geographically and equitably distributed global production of pandemic-related products, and that member states increase the timely, fair and equitable access to safe, effective, quality and affordable pandemic-related products, and thereby reducing the gap between potential demand and supply at the time of a pandemic.
• 2. Article 13 (3) makes provision for the establishment of the WHO Global Supply Chain and Logistics Network (the WHO SCL Network) which shall work with state parties to the agreement to ensure that it facilitates the negotiation and agreement of advance purchase commitments and procurement contracts for pandemic-related products; promotes transparency in cost, pricing and all other relevant contractual terms along the supply chain; and coordinates to avoid competition for resources among procuring entities, including within member states, regional organizations and/or mechanisms.
• 3. Articles 13 (5) and (6) further provide for each Party to the agreement to, at the earliest reasonable opportunity and in accordance with applicable law, make publicly available online the terms of government-funded purchase agreements for pandemic-related products in those instances in which the Party is directly entering into such purchase agreements and shall to the fullest extent possible and in accordance with applicable laws, exclude confidentiality provisions that serve to limit disclosure of terms and conditions of such purchases.

b) The provision for consequence management, including arbitration, should extortion occur, is described in Article 34 on “Settlement of Disputes” of the WHO Pandemic Agreement. This Article provides for parties to resolve disputes through diplomatic channels by negotiation or any other peaceful means of their own choice, including good offices, mediation or conciliation.

Failure to reach a solution by good offices, mediation or conciliation will not absolve Parties to the dispute from the responsibility of continuing to seek to resolve it. However, the pharmaceutical companies as previously stated are not state parties and will not be signatories to Agreement. This is where the drafting of the negotiating text has stalled as currently there are diverging views from advanced economies and countries of the global north where most of these pharmaceutical companies are domiciled on how to resolve challenges that may arise out of the conduct of these companies. This has resulted in the inability to reach consensus with the representative member states from the developed countries from the global north.

END.