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REAFFIRMING TRIPS, REIMAGINING ACCESS: REFLECTIONS ON THE WHO PANDEMIC TREATY

December 1, 2025

*Ms. Keerthana M

INTRODUCTION

The World Health Organisation (WHO) Pandemic Agreement is founded on the principle, “Prevention is better than cure.” Pandemic outbreaks are a global threat to all forms of lives. The Right to life envisaged under Article 21 of the Constitution of India includes ‘Right to Health’ as laid down by the Supreme Court in Bandhua Mukti Morcha V. Union of India. Right to Health is to be considered a non-negotiable right even during global health emergencies.

The historic treaty adopted under Article 19 of the Constitution of the World Health Organisation aims to prevent, prepare for and respond to pandemics. The Agreement incorporates thirty-five articles, most of which underscores the principles of equity, solidarity and sovereignty of nations. They are envisaged to improve access to safe, effective and affordable medicines and other health technologies through initiatives such as capacity-building for local production, mutually agreed technology transfer, international cooperation and the strengthening of legal and regulatory frameworks. The agreement was adopted by the WHO member states on 20th May 2025 following three years of intense negotiations. Next item on the agenda is the drafting of the Pathogen Access and Benefit Sharing (PABS) instrument as a separate annex after which the agreement will be open for ratification. To come into force, the agreement requires ratification by sixty nations. While the language of the treaty is highly aspirational, the extent to which its provisions are enforceable remains a topic that warrants further discussion.

KEY PROVISIONS

The Agreement introduces a ‘One Health Approach’ to prevent, prepare for and respond to pandemics (Article 5). It recognises that human health is interconnected to animal and environmental health and mandates the integration of appropriate interventions into domestic laws by addressing the occurrence of infectious diseases at the human-animal interface. Articles 6 states that each party shall take steps to develop and maintain an efficient health system and infrastructure through timely provision of equitable clinical care and healthcare services (physical and psychological) as well as national health information systems. Article 7 prescribes the establishment of a well-trained and protected workforce by each party. Article 8 calls for a strengthened regulatory system at the national and regional level, responsible for authorisation and approval of pandemic-related health products. Article 9 aims at the promotion of research and development activities and institutions related to pandemic health by each party, with a primary focus on developing countries.

Article 10 encourages the parties to take steps “to achieve equitable, sustainable and geographically diversified local production of pandemic related health products”. To operationalise this provision, Article 11 encourages parties to facilitate technology transfer as “mutually agreed” through capacity building efforts and by increasing the availability of licences for pandemic related health products, publishing the terms of its licence agreements and encouraging patent or license holders to forgo their rights or charge reasonable royalties. It also reaffirms the rights of parties to invoke the WTO Agreement on TRIPS and the Doha Declaration on TRIPS Agreement and Public Health (2001), which provide flexibilities such as compulsory licensing of patents and parallel importation of health products to protect public health, including during future pandemics. But here lies the catch: the recurring use of terms such as “mutually agreed” and “according to national capacities” along with the non-obligatory nature of these provisions gives autonomy to the countries to decide on how to implement them, ultimately limiting the extent of assistance envisioned for the Global South throughout the treaty.

Article 12 equips the parties to establish a multilateral system for a safe, transparent and accountable “Pathogen Access and Benefit Sharing System (PABS)”. This means that parties shall have access to information on disease-causing pathogens and the party providing such information will be entitled to a share in the benefits derived from the development of vaccines, therapeutics, diagnostics or other treatment mechanisms created using that information. The provisions governing this system are to be developed and agreed upon in a separate instrument annexed to the Pandemic Agreement. Thus, Article 12 is a seminal provision and serves as the treaty’s operational hinge as “Article 31(2) states that the agreement will not be open for signature until the PABS annex is adopted”.

Other key provisions include securing the supply chain to facilitate access to pandemic-related goods, especially for countries in need during public health and pandemic emergencies (Article 13), requiring states to strengthen sustainable and predictable financing and establish a ‘Coordinating Financial Mechanism’ for the implementation of the treaty (Article 18), and creating institutional arrangements such as the ‘Conference of Parties (COP)’ (Article 19) and the ‘Secretariat’ (Article 22). The COP is tasked with making decisions for the effective implementation of the treaty and is designed to be non-punitive and non-adversarial in nature. The Secretariat is responsible for carrying out functions assigned to it under the treaty, as well as those delegated by the COP.

UNCERTAIN FUTURE?

The COVID-19 pandemic was a revelation for nations. The International Health Regulations (IHR), 2005 which lay down the rights and duties of states in managing public health risks were found to be inadequate in dealing with the Covid crisis. The inequities regarding access to vaccines, medicines, and other health products persisting both at the national and international levels, were exposed during the coronavirus outbreak and became the basis for the evolution of the Pandemic Treaty. The protection of intellectual property has been recognised as essential for the development of new medicines by the parties to the agreement, while also acknowledging its impact on pricing. However, the treaty merely reaffirms the existing TRIPS flexibilities and does not introduce any new provisions on balancing intellectual property rights with access to medicines.

The agreement has been abstained by 11 countries, including Russia, Italy, Poland, Slovakia, Israel, Iran. These abstentions pose logistical hurdles for middle and low-income countries, many of whose manufacturing capabilities rely on cooperation with these nations.

The absence of U.S. participation brings forth a new challenge for the enforcement of the Pandemic Agreement. The U.S is a hub for leading pharmaceutical firms like Pfizer and Eli Lilly, and it was also one of the major financial contributors to the WHO. Without these companies as key players in global research and development, the ‘PABS’ and the ‘Global Supply Chain and Logistics’ frameworks are likely to face significant gaps in implementation. Moreover, WHO’s decision to adopt a non-coercive stance and refrain from exercising authority to prescribe domestic laws, impose travel bans, mandate vaccinations, or declare lockdowns limit its direct influence over national pandemic responses.

The Intergovernmental Working Group, a subdivision of the World Health Assembly established by WHO Member States to develop key components of the Pandemic Agreement, has already met twice and will continue to meet regularly to finalise the provisions of the PABS annex, which is pivotal for the implementation of the treaty. The path ahead is challenging yet hopeful. Upon the successful completion of drafting the PABS Annex and its ratification by at least sixty countries, this first-of-its-kind pandemic treaty will come into force.

CONCLUSION

The Pandemic Agreement gives the Global South a fair chance to ensure access to medicines, vaccines, therapeutics, and diagnostics. This instils hope and encourages nations to reimagine equitable global health as a realisable goal, especially during pandemics. However, the absence of new commitments on balancing intellectual property rights with public health imperatives, apart from reaffirming existing TRIPS flexibilities, raises concerns about the treaty’s ability to overcome excessive commercial interests. Moving forward, meaningful progress will depend on harmonising innovation with equitable access as well as mitigating political and institutional reluctance to attain global solidarity through collective efforts within the national and supranational spheres.

REFERENCES

  1. Bandhua Mukti Morcha V. Union of India & Ors (1984) AIR 802 (Ind).
  2. WHO Pandemic Agreement, (May 22, 2025), https://apps.who.int/gb/ebwha/pdf_files/WHA78/A78_R1-en.pdf., (last visited Oct 12 2025, 11.23pm).
  3. The World Trade Organisation Agreement on Trade Related Aspects of Intellectual Property Rights, Apr. 15, 1994.
  4. Ayelet Berman and Indira Dewi Kantiana, The Pandemic Agreement: A Milestone in Global Health, but Will it Work?, Blog of the European Journal of International Law (Oct 12, 2025 11.25pm) https://www.ejiltalk.org/the-pandemic-agreement-a-milestone-in-global-health-but-will-it-work/.
  5. Dr Siddharth Jain, The WHO Pandemic Agreement: A Contested Step Beyond Doha, SpicyIP Weekly Review (Oct 12 2025, 11.35pm) https://spicyip.com/2025/07/the-who-pandemic-agreement-a-contested-step-beyond-doha.html.
  6. Woo Jung Jon, Implementation of the WHO Pandemic Agreement, 103 Bull. World Health Org. 638 (2025).

Author:

Ms. Keerthana M,
Pursuing LL.M. in Public Health Law, National University of Advanced Legal Studies, Kochi.

Disclaimer: The opinions expressed in the article are the personal opinions of the author. The facts and opinions appearing in the article do not reflect the views of the Alliance Centre for Intellectual Property Rights (ACIPR) and the Centre does not assume any responsibility or liability for the same.